SMU Law Review Volume 69 Issue 1 Article 6 2016 Reconstructing Pregnancy Sarudzayi M. Matambanadzo Dr. Tulane University Law School, [email protected] Follow this and additional works at: https://scholar.smu.edu/smulr Part of the Law Commons Recommended Citation Sarudzayi M Matambanadzo, Reconstructing Pregnancy, 69 SMU L. REV. 187 (2016) https://scholar.smu.edu/smulr/vol69/iss1/6 This Article is brought to you for free and open access by the Law Journals at SMU Scholar. It has been accepted for inclusion in SMU Law Review by an authorized administrator of SMU Scholar. For more information, please visit http://digitalrepository.smu.edu. RECONSTRUCTING PREGNANCY Saru M. Matambanadzo* ABSTRACT Congress passed the Pregnancy Discrimination Act in 1978 to amend Title VII's prohibition against sex discriminationto include discrimination on the basis of pregnancy, childbirth, and related medical conditions. More than thirty-five years after the passage of the Pregnancy Discrimination Act, courts have failed to fulfill that act's promise. This failure lies, in part, in the law's tendency to reduce pregnancy, with all of its social and cultural meaning, to its "purely" biological elements. For the purposes of the Preg- nancy Discrimination Act, courts ground the legal conception of preg- nancy in a form of biomedical essentialism that treats pregnancy as a universalgiven. Under the PDA, courts have reduced pregnancy discrimi- nation only to the discriminationthat occurs during gestation or because of gestation-related physiological conditions. This reductive definition of pregnancy is not only profoundly under-inclusive and unresponsive to the needs of workers but also contradictory and incoherent. In response, this articleproposes that pregnancy should be reconstructed in law. Judges, ad- ministrative actors, and advocates should reject reductive forms of bi- omedical essentialism and embrace possibilities beyond biology. Pregnancy should not, and indeed cannot, be understood independent of the social, cultural, and relational interactions that give it meaning. Preg- nancy is, in fact, pregnant with social and cultural meaning. Reconstructing pregnancy in this way has the potential to provide much needed clarity to the Pregnancy DiscriminationAct, and to ensure that pregnancy discrimi- nation is comprehensively prohibited-whetherit occurs before, during, or after conception. TABLE OF CONTENTS INTRODUCTION ............................................... 188 * Associate Professor of Law, Tulane University Law School. The author presented versions of this article at Tulsa College of Law's External Speaker Series, the Lutie A. Lytle Black Women Law Faculty Writing Workshop, and at the AALS Mid-Year Meeting on Next Generation Sex Discrimination. She would like to thank participants of those workshops for helpful comments and questions. The author would also like to thank Adeno Addis, Nick Almendares, Jason Bent, Deborah Brake, Cheryl Nelson Butler, Nancy E. Dowd, Adam Feibelman, Jim Gordley, D. Wendy Greene, Stacy Hawkins, Cath- erine Hancock, Jancy Hoeffel, Ann Lipton, John Lovett, Natasha Martin, Ann McGinley, Isabel Medina, Tania Tetlow, Jessica Dixon Weaver, and Robert Westley. In addition, thanks go to Anthony Johnson, Tracy Law, and Melinda Lim for helpful research assis- tance. All mistakes remain the sole responsibility of the author. SMU LAW REVIEW [Vol. 69 I. PROBLEMS AND SOLUTIONS: THE PREGNANCY DISCRIMINATION ACT ................................ 194 A. THE PROBLEM OF PREGNANCY DISCRIMINATION IN HISTORICAL AND CONTEMPORARY CONTEXT .......... 194 B. BEFORE THE PREGNANCY DISCRIMINATION ACT: EARLY CASES .......................................... 201 C. THE PREGNANCY DISCRIMINATION ACT: ITS PASSAG E ............................................... 204 D. THE AFTERMATH: SUCCESSES AND LIMITATIONS OF THE PD A ............................................. 205 II. EXPANDING THE PDA'S MEANING BEYOND GESTATION DISCRIMINATION ....................... 215 A. INTERPRETING PREGNANCY ........................... 215 B. INDETERMINACY AND THE PDA ...................... 220 1. The PDA and Infertility ........................... 222 2. The PDA and Lactation ........................... 225 3. The PDA and Contraception ...................... 228 4. The PDA and Menstruation ....................... 229 C. THE FRONTIERS OF PREGNANCY DISCRIMINATION ..... 229 D . CONCLUSION .......................................... 233 III. RECONSTRUCTING PREGNANCY .................... 234 A. AN INTRODUCTION TO BIOMEDICAL ESSENTIALISM .... 234 B. PREGNANCY IN THEORY: FEMINIST ENGAGEMENTS WITH PREGNANCY ..................................... 236 1. Performatively Pregnant: Constructingthe Pregnant B ody .............................................. 239 2. Pregnant with Social and Cultural Meaning ........ 243 C. BIOMEDICAL PARADOXES AND PREGNANCY ........... 245 D. EXPERIENTIAL ASPECTS OF PREGNANCY .............. 251 1. Pregnancy is Both Individual and Relational in N ature ............................................ 251 2. Paradoxes of Pregnancy: Pregnancy is Both Universal and Particular........................... 255 E. ON PRAGMATIC CONCERNS AND POSSIBILITIES ........ 256 CO N CLU SIO N .................................................. 264 INTRODUCTION ONGRESS passed the Pregnancy Discrimination Act (the PDA or the Act) in 1978.1 The PDA was passed in response to the U.S. Supreme Court's determination that pregnancy discrimination is not sex discrimination for the purposes of Title VII of the 1964 Civil 1. Pregnancy Discrimination Act, Pub. L. No. 95-555, 92 Stat. 2076 (1978) ("An Act [t]o amend title VII of the Civil Rights Act of 1964 to prohibit sex discrimination on the basis of pregnancy."). 2016] Reconstructing Pregnancy Rights Act.2 Drafted as part of Title VII's definition section, the PDA provides protection for pregnant employees in two ways: First, the PDA defines sex discrimination to include discrimination on the basis of preg- nancy, childbirth, or related medical conditions. 3 Second, the PDA re- quires employers to treat pregnant employees in the same way as other employees who are not pregnant but are similarly situated in their ability 4 or inability to work. Although the PDA made explicit what feminists believed and what wo- men already knew-that pregnancy discrimination is sex discrimination- the Act has its limitations. 5 One of the major limitations of the PDA emerges from the fact that it does not explicitly define pregnancy or pro- vide guidance for determining the scope of related medical conditions that the Act addresses. As pregnancy discrimination jurisprudence has evolved, the scope and meaning of pregnancy, childbirth, and related medical conditions has become unclear. 6 Furthermore, courts have inter- preted the PDA in ways that fail entirely to protect women in the work- place from discrimination on the basis of pregnancy, childbirth, and 7 related medical conditions. The current pregnancy discrimination jurisprudence emerges from a fundamentally naive misunderstanding of the nature of pregnancy. At first blush, most individuals believe they know and understand the nature of pregnancy. Because pregnancy is such a ubiquitous part of human life, many individuals have experienced pregnancy either firsthand or as the partner of a pregnant person. For this reason, pregnancy is believed to be a commonly accessible experience, widely available to individuals whether they have been pregnant or not.8 There is also a presumption that the boundaries of pregnancy are easily understood and can be re- duced strictly to biology and physiology. 9 In 1999, the Honorable Richard Posner, a prolific jurist and scholar, made a bold but insightful statement about the judiciary and its knowledge of sex.10 He claimed that the processes of educating and selecting judges may create a circumstance where the judiciary has little knowledge about the nature of sexuality and the scope of sexual desire.'1 According to Judge Posner, "judges know 2. Gen. Elec. Co. v. Gilbert, 429 U.S. 125, 160 (1976). 3. 42 U.S.C. § 2000e(k) (2012). 4. According to the PDA, "the terms 'because of sex' or 'on the basis of sex' include, but are not limited to, because of or on the basis of pregnancy, childbirth, or related medi- cal conditions; and women affected by pregnancy, childbirth, or related medical conditions shall be treated the same for all employment-related purposes, including receipt of benefits under fringe benefit programs, as other persons not so affected but similar in their ability or inability to work." Id. 5. See id.; see also infra Part I.D. 6. See infra Part II.A. 7. See, e.g., Krauel v. Iowa Methodist Med. Ctr., 95 F.3d 674, 679-80 (8th Cir. 1996). 8. See infra Part II|.D.i. 9. See infra Part III.A. 10. See RICHARD POSNER, SEX AND REASON 1 (1994). 11. Id. SMU LAW REVIEW [Vol. 69 next to nothing about the subject."'1 2 This article echoes Judge Posner with a distinct but similar claim. Judges, while they may be highly edu- cated, knowledgeable, and worldly in other regards, often may know very little about pregnancy. Not only do they lack the sophisticated medical and scientific knowledge that many doctors, maternal nurses, and mid- wives possess, they also typically lack the experiential, hedonic knowl- 3 edge of pregnancy that many women possess.' In interpreting the PDA, courts currently limit the scope and meaning of pregnancy by grounding the concept in biomedical essentialism. 14 Bi- omedical essentialism is an ideological perspective that reduces the