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Trump’s latest policy proposal is a direct attack on Justice Ginsburg’s legacy

Notorious.

The Notorious RBG is not amused. (CREDIT: AP PHOTO/MICHAEL DWYER)
The Notorious RBG is not amused. (CREDIT: AP PHOTO/MICHAEL DWYER)

In a 2014 interview with Justice Ruth Bader Ginsburg, Yahoo News’ Katie Couric briefly paused to relay a question from Notorious RBG co-author Shana Knizhnik. “If there was a case that you could have written the dissenting opinion to that was decided before your time on the bench,” Knizhnik asked, “what would it be, and why?”

The justice responded with two closely related cases, a pair of decisions from the 1970s which held that discrimination on the basis of pregnancy is not a form of sex discrimination. “That was as wrong as it could be,” Ginsburg explained. “It’s the ability to become pregnant,” she added, “that differentiates women from men. And, for the Court to seize upon that characteristic and say that it had nothing to do gender was amazing — astonishing.”

Flash forward four decades later, and one of the two people who has a shot of being president next year released a proposal that depends entirely on these decisions treating pregnancy as irrelevant to gender discrimination — but for those decisions, Donald Trump’s new maternity leave proposal would be unconstitutional.

To explain, on Tuesday, Trump released a series of proposals that, he claims, are “pro-family, pro-child, pro-worker plans” (although, as ThinkProgress’ Bryce Covert explains, Trump’s claim is doubtful). One of his proposals is to “provide 6 weeks of paid-maternity leave to any mother with a newborn child whose employer does not provide the benefit.”

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Trump’s proposal is less generous than his rival’s proposal. Democratic candidate Hillary Clinton would “guarantee up to 12 weeks of paid family and medical leave to care for a new child.” Notably, Clinton’s proposal does not just offer twice as much time off as Trump’s, it also offers paid leave to any new parent, while Trump would only provide “maternity” leave — that is, leave for mothers and not fathers.

This later distinction could have profound negative consequences for women. As Covert notes, excluding men from parental leave, ironically, could harm women in the workplace. Working “women already face a significant motherhood penalty,” Covert explains, “but studies have found that mandating benefits for women, such as long maternity leaves, can further harm women’s wages and employment, especially if employers see them as a particularly costly investment.”

Trump’s decision to treat men differently from women raises serious constitutional doubts about his proposal.

If Trump implements a policy that imposes new burdens on employers who hire women, but not on those who hire men, then employers will be more likely to favor men. Clinton’s proposal, by contrast, treats men and women equally, so it will not have this distorting effect on the labor market.

Moreover, Trump’s decision to treat men differently from women raises serious constitutional doubts about his proposal.

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Before Justice Ginsburg was a judge, she was a pioneering feminist attorney who probably did more than any other lawyer to convince the Supreme Court that the Constitution protects against gender discrimination. One of Ginsburg’s central insights was that laws which ostensibly grant women benefits that men do not enjoy actually harm those same women, often because they reinforce stereotypes and antiquated gender rolls. Her favorite former client, for example, is a stay-at-home father was denied widowers benefits he would have received if he were the wife of a late husband.

Trump’s proposal promotes these very stereotypes with its implicit suggestion that the job of parenting rests with mothers and not fathers. And, as the studies cited by Covert suggest, it is a particularly stark example of a law which appears to benefit women, but which also risks diminishing their opportunities in the workplace.

In fairness, there is a plausible defense for Trump’s decision to treat women differently than men in this particular instance. Pregnancy imposes a physical burden on mothers that it does not impose on fathers. So a maternity leave-only plan could be justified as offering new mothers an opportunity to physically recuperate.

Absent the two pregnancy discrimination decisions Ginsburg cited in response to Knizhnik, however, it is unlikely that this justification would be enough to rescue Trump’s proposal from a constitutional challenge. As Justice Ginsburg herself wrote for the Court in United States v. Virginia, “a party seeking to uphold government action based on sex must establish an ‘exceedingly persuasive justification’ for the classification.” This is a very high bar, and a law which reinforces stereotypes and is likely to disadvantage working women would have a tough time clearing it.

That said, if a challenge were brought today against a program similar to Trump’s proposal, such a challenge would likely be rejected by the courts, thanks to a doctrine Ginsburg dismissed as “as wrong as it could be.”

“While it is true that only women can become pregnant,” the Court held in Geduldig v. Aiello, “it does not follow that every legislative classification concerning pregnancy is a sex-based classification like those considered in” other decisions striking down gender discrimination. “Absent a showing that distinctions involving pregnancy are mere pretexts designed to effect an invidious discrimination against the members of one sex or the other,” courts generally should not treat laws that distinguish between pregnant and non-pregnant individuals as a form of gender discrimination.

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And so, should Trump’s proposal become law, it is likely to survive a court challenge. But it will survive over Justice Ginsburg’s vehement dissent.