Loyola University Chicago School of Law, JD 2024
It has been more than 100 days since the overturning of Roe v. Wade. In the wake of this decision, on October 4, the Biden administration reinforced guidelines regarding legal protections related to abortion and pregnancy under Title IX.
What is Title IX, and how does it relate to Dobbs v. Jackson Women’s Health Organization?
Title IX of the Education Amendments of 1972, most commonly referenced as Title IX, is a federal civil rights law that prohibits discrimination based on sex in any education program or activity that receives federal finance assistance. Title IX was signed by President Richard Nixon on June 23, 1972 and was, at the time, meant to primarily provide women with equal opportunities in athletics.
Roe v. Wade was a landmark decision, giving women sovereignty over their own bodies and the right to choose. A day after Roe v. Wade celebrated its fiftieth anniversary, the Supreme Court overturned its 1973 decision.
Dobbs v. Jackson Women’s Health Organization marked a major fallback in history wherein the Court held the right to privacy is not a fundamental right protected by the Constitution. It is decisions, like Dobbs, that are causing many women to lose hope in their ability to have equal rights under the law. While, given the attack on reproductive rights that women have been facing, this is completely valid and measured concern, women can take solace in the fact that recent changes in Title IX are at least attempting to protect women who are pregnant or get an abortion in an education setting.
What is being protected under Title IX?
President Biden made a fact sheet with guidance for higher education institutions regarding the legal protections for discrimination based on pregnancy that his proposed regulations confer. According to the fact sheet, universities must comply with treating abortion, pregnancy, and child birth “the same as any temporary disability under the health insurance plans they offer to students and faculty.”
Key Regulations in the Department of Education’s Proposed Regulations
Under the proposed regulations, schools that receive federal funding must comply with the following pregnancy related requirements:
1) Discrimination and Exclusion
34 C.F.R. § 106.40(b)(1): Schools cannot discriminate against students, including from programs such as extracurricular activities and employment applications, based on a pregnancy, childbirth, false pregnancy, termination of pregnancy, and recovery therefrom.
2) Medical and other benefits and services
34 C.F.R. § 106.40(b)(4): Schools must treat pregnancy, childbirth, false pregnancy, termination of pregnancy, and recovery therefrom the same as any other temporary disability.
34 C.F.R. § 106.57(c): For employees, schools must treat pregnancy (and the same related conditions) as any other temporary disability for all job-related purposes.
3) Leave policy
34 C.F.R. § 106.40(b)(5): All schools must have a leave policy for its students regarding pregnancy, childbirth, false pregnancy, termination of pregnancy, or recovery therefrom. This leave policy must remain for however long the student’s physician deems necessary. Further, when the student comes back from leave, they must be reinstated to the same status as they were prior to leave.
What happens if a university doesn’t comply with Title IX regulations?
Following President Biden’s reinforcement of Title IX protections, the Department of Education also released a resource sheet (referenced above) for both students and schools. Within this resource sheet, the Department of Education provides instructions on how to file a complaint should anyone feel they may have been discriminated against based on pregnancy or any other related conditions.
It is crucial that the Department of Education and other governmental bodies provide information like this in order to keep citizens informed of rights and the protections they are afforded under Title IX. Further, it is imperative that there is an effective and efficient way to file claims against institutions given regulations are frequently not complied with.
Why does this matter?
With Supreme Court decisions like Dobbs v. Jackson, women continue to lose hope in having power to make autonomous decisions over their own bodies and reproductive functions. Because of such decisions, it is more important now than ever before that regulated entities, like schools who receive federal funding, comply with reproductive justice oriented regulations and that regulatory agencies enforce such provisions when compliance is lacking.