by Prof. Sandra L. Simpson:

Why does it seem like motherhood and a woman’s career are still at odds with each other? The answer may be quite simple. Once the law legitimized abortion and made motherhood a choice, a woman’s ability to claim discrimination in the workplace based on her status as a mother was greatly diminished. Mothers could no longer base their complaints on sex discrimination, resulting in an uphill battle to mobilize support for legislation that would oblige employers to respect the responsibilities of motherhood. Motherhood is a choice, thus it is not protected.

Because there is very little legal protection for mothers in the workplace, discrimination based on a mother’s status is common place. Studies and accounts have outlined outrageous treatment of mothers in the workplace. For instance, cases have been filed outlining employers who approve employees’ flexible schedules for marathon training, personal swim lessons, etc., but refuse mothers’ requests for time off to attend a child’s track meet. Employers report that mothers tend to be less dedicated to work. If employers are given identical resumes, one from a mother and the other from a childless woman, the mother is 79 percent less likely to be hired, 100 percent less likely to be promoted, will make an average of $11,000 less in salary, and will be held to the highest performance and punctuality standards, according to a study published in 2006 by Shelley Correll and Steve Benard of Cornell Univeristy. In fact a 2004 study by Kathleen Fuegen, an assistant professor of psychologyat Ohio State University showed interestingly that fathers were held to a lower standards then childless men and women. But, again, mothers were held to the highest standard for tardiness, job performance, and willingness to come in when called. This continued discrimination against mothers has led to women struggling to find a balance between a satisfying career and a meaningful home life.

Recently, the news has been full of stories of high ranking, high performing mothers leaving the workplace in pursuit of a meaningful home life. Specifically, Anne Marie Slaughter, a Princeton professor, who left her job at the U.S. State Department due to problems with balancing her work and home-life, wrote an article outlining her frustration with finding a healthy balance in her life. Her article, Why Women can’t Have It All,, published in the Atlantic in the July/August 2012 edition, tells the story of a woman living the feminist ideal: a mother and policy advisor for the then Secretary of State Hillary Rodham Clinton. This job, however, came at the price of her home life and her life as a mother.

As most professional mothers know, women professionals in the workplace face far different pressures than those facing men, even men that are fathers. If a mother misses work to care for a sick child, she is seen as not dedicated to her work, yet if a man asks for time off to be with his children, not only is his dedication to the workplace not questioned but he is praised for being an involved father.

To understand this phenomenon, a brief look at the history of woman’s rights is helpful. Initially, women wanted to escape the special protection for women which precluded them from working the same hours as men or in the same conditions as women were viewed as the weaker sex needing protection. They did not focus on a woman’s role as caretaker as the early feminists wanted to focus on political power and an end to paternalism. First wave feminism thus focused on political equality while second wave feminism focused on the equality of one’s person.

This second wave continues to polarize women and the country, in large part, because of its focus abortion. Second wave feminist consider abortion the central right needed by women in order to achieve full equality in the workplace. Many disagree. Justice Rehnquist said in his dissent to the majority in Planned Parenthood v. Casey,

“Surely it is dubious to suggest that women have reached their ‘places in society’ in reliance on Roe [v. Wade], rather than as a result of their determination to obtain higher education and compete with men in the job market, and of society’s increasing recognition of their ability to fill positions that were previously thought to be reserved only for men.”

His thoughts are echoed by women across the country.

While Rehnquist is right—determination has created opportunities for women in the workplace—that determination has still left mothers without protection. Employers remain free to give greater regard to marathon running than motherhood. The question we must ask ourselves is, if over 71% of all women working today are mothers, why don’t we protect a women’s right to have a career and a family.

Once again, the real answer is pretty straight-forward. Once women were given the right to terminate their pregnancies, motherhood became a choice, and once motherhood became a choice, mothers lost any right to claim the burdens of motherhood as a form of sex based discrimination. The second wave of feminism focused on the right of a woman to control her procreation like a man so she could be like men in the workplace and, thus, treated equally. It just unfortunate (and a little ironic) that equal treatment, even if it’s in name only, spoils a woman greatest argument to have her motherhood respected in the law. Forget the fact that parenthood is a choice in which mothers still bear the lion’s share of the work.

Fact is that abortion, equal pay laws, and antidiscrimination laws have failed to bring about equality for all women. A large portion of women in the workplace are mothers who face vastly different workplace challenges than men, and those challenges stifle a woman’s opportunities to advance in her career. Moreover, legal abortion makes it more likely that both employers and lawmakers will dismiss the responsibilities of motherhood since the responsibilities are viewed as voluntarily assumed. The result is state of affairs where motherhood is devalued and women bear a greater cost when they pursue both a family and a career.

The right to an abortion, the focus of second wave feminism, may have helped women in other ways, but it certainly has not led to equality in the workplace. Instead, it made motherhood a choice. And once that choice is made, there is little protection for that choice. Abortion has stigmatized the very choice that distinguishes women from men—motherhood.

Sandra L. Simpson, J.D. is the Associate Dean of Academic Affairs at Gonzaga University School of Law. She researches and writes to promote the protection of human life from conception to natural death. Her scholarship seeks to make thoughtful points about polarizing subjects such as abortion, motherhood, and the death penalty.

NOTE: This blog is based on a recent article published in the Gonzaga Law Review, Volume 48:2, page 279, titled, The Elusive Quest for Equality: Women, Work, and the Next Wave of Humanism.