B. from New York, ACLU Client

As a woman working on Amtrak, first as a conductor and later as an engineer, my job posed challenges in many areas. At times it wasn’t easy being the only woman on board. But, like most of the female employees that came before me and worked alongside me, we made it work the best we could.

It wasn’t until I became pregnant in the spring of 2019 that I discovered how hard it would be to work for the railroad as a woman and, more importantly as a breastfeeding mother.

When I learned I was pregnant, I was nothing but smiles and happy tears. Making the decision to nurse my second baby was not a hard one for me. I had my first child at the age of 21. Although it was also a time of smiles and happy tears, I was young and struggled, and ultimately, I was not able to successfully nurse my daughter. Determined to not let that happen with my son, I made sure I had the support needed to be successful this time around. With a “Nursing Mothers Policy” in place at Amtrak, I felt confident that I was going to be able to give my son one of the greatest things I believed a mother could provide: my breast milk.

As my due date grew closer, I let my point of contact for HR know that I was planning to breastfeed and would need to pump milk during the workday. She simply responded, “They are not going to let you do that.” Unfortunately, she turned out to be right.

I reached out to HR about having the pumping break time and space I needed to continue breastfeeding. But the company refused to accommodate my health needs.

My son, born at 38 weeks, brought so many emotions to our family. We spent the first 17 days of his life in the NICU. I was told that my son was fighting for his life, and we needed to be prepared for the worst. As he got stronger, I was filled with joy at every breath he took. And I was grateful that breastfeeding was working out this time around.

As the end of my maternity leave approached, I reached out to HR about having the pumping break time and space I needed to continue breastfeeding. But the company refused to accommodate my health needs. The last weeks of my maternity leave were filled with emails, phone calls, and letters FedExed to my home from my employer. I should have been spending that precious time caring for my baby, not worrying day and night how I would continue feeding him after I returned to work.

I tried to find out more about my legal rights and discovered I had none. The federal “Break Time for Nursing Mothers law” gives employees a right to break time and a private space to pump, but it didn’t apply to me at all, because employees who work on railways are not covered. Amtrak was refusing to comply with its own policy, and I had no rights under national law. I felt entirely on my own.

When I returned to work, I was physically uncomfortable and overwhelmed. I was at a loss as to what to do. I resorted to finding my own locations — a dirty storage room, a locker room, empty train cars (hoping no one would walk in). Not having a sanitary place to pump meant that I mostly had to dump the milk I made. The overwhelming stress and lack of breaks affected my breast milk supply, which dropped so much that it risked my ability to breastfeed my son at all. My determination to nurse him had been taken from me, and more importantly, it was taken from him.

It turns out I was less on my own than I thought, although not in a good way. Nine million working moms have no protection for pumping on the job because of the industries they work in — hardworking people who deserve better from our country, like teachers, nurses, and agricultural workers. The PUMP for Nursing Mothers Act, a bill being considered right now by Congress, has support from both political parties. It would help protect workers like myself by making sure that all mothers have a right to break time and private space for pumping.

I should have never been in a position to struggle so much to nurse my son while staying employed. I should not have had to sacrifice my privacy. And I shouldn’t have had to stop nursing my son earlier than I wanted to. No new mother should have to do these things. Tell Congress it’s time to stand by working moms and pass the PUMP Act.

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Wednesday, August 3, 2022 - 11:00am

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Nine million working moms like me have no protection for pumping on the job, but Congress can change that.

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Crystal Grant, Former Technology Fellow, ACLU Speech, Privacy, and Technology Project

Nearly every baby born in the U.S. has blood drawn in the immediate hours after their birth, allowing the baby to be tested for a panel of potentially life-threatening inherited disorders. This is a vital public health program, enabling early treatment of newborns with genetic disorders; for them, it can be the difference between a healthy life and an early death. But recent news suggests that police are seeking access to these newborn blood samples in criminal investigations. Such use of this trove of genetic material — to hunt for evidence that could implicate a child’s relative in a crime — endangers public trust in this vital health program and threatens all Americans’ right to genetic privacy.

A public records lawsuit filed in New Jersey this month details how police subpoenaed a newborn blood sample to investigate a 1996 cold case. While law enforcement’s desire to use these blood samples in criminal investigations was always a possibility — and one the ACLU has opposed — the increasing use of Investigative Genetic Genealogy (IGG) has only increased the government’s interest in easy access to people’s DNA. While few have heard of IGG, many have heard of its application to cold cases: One high-profile example is the 2018 identification of the Golden State Killer as former police officer Joseph James DeAngelo Jr. In IGG, DNA is isolated from a sample left at a crime scene and a rich genetic profile is created and uploaded to a genealogy website in order to map out family trees. In just four years since IGG first became public, its documented use by police has rapidly grown to nearly 200 investigations.

The government has already gone to shocking lengths to obtain DNA samples without a warrant, including lying to a suspect’s family members to obtain their DNA — but the New Jersey investigation represents the first public instance of them turning to newborn blood samples. This threatens both privacy and public health. A failure to act now could mean widespread loss of genetic privacy at the hands of police.

DNA holds our sensitive personal information. Indeed, that’s why the newborn screening program exists: to detect inherited medical conditions from our blood sample that could lead to things like permanent intellectual disability and major health problems if not detected early enough. Allowing the government to access samples with such sensitive information for reasons other than public health would seriously threaten our privacy — particularly given that our DNA reveals such information not only about us, but also our family members.

This newborn screening system relies on public trust. It exists because public health officials agree that the good outweighs the bad — the temporary pain to the newborn and the cost to the parents are well worth the prevention of life-threatening medical conditions among the almost 1 in 300 newborns found to have a genetic disorder. But that delicate balance is thrown off when the government turns to that same data for other purposes, including criminal investigations.

There is no uniform national policy for how newborn screening is conducted. Each state sets its own policies governing which diseases it tests for and the length of time the sample is kept. Parent groups and other privacy advocates have long voiced concerns about these state screening systems. As a result of litigation that argued that keeping blood samples leftover from the screening tests violates privacy rights, some states destroyed samples en masse and have limited how long future ones are stored. Still, the range of storage for states varies from a few months to indefinitely.

And, perhaps most troublingly, “more than a quarter of U.S. states have no discernible policy in place regarding law enforcement access, while nearly a third may permit such access in at least some circumstances,” according to a recent Texas Law Review article. Police access to newborn genetic screening samples is a massive threat to privacy.

This is particularly true when police access is part of an IGG investigation. One study found that soon 90 percent of white Americans will be genetically traceable because of a family member uploading their genome to one of several genealogy websites. With the exponential growth of direct-to-consumer testing companies like 23andMe and Ancestry.com, and a subset of companies like African Ancestry that market to communities of color, that percentage is expected to rise for all Americans. Newborn screening continues to be one of the most successful public health interventions in the U.S., but abuse of this system by police risks turning this public good into a system of mass genetic surveillance, allowing police to trace back centuries of familial ties for many Americans. This could cause a backlash in which states curtail their screening programs in an attempt to preserve citizens’ privacy, or deny the options to use these samples in critical medical screening research. Additionally, more parents may attempt to opt out of the system altogether or request their child’s sample be destroyed earlier than scientists recommend, risking a missed opportunity for early diagnosis.

To restore public trust and protect privacy, states should promptly seek to identify instances in which newborn screening may have been abused by police by surveying their state laboratories. And they must craft policies that restrict any use of the samples by police in criminal investigations. Iowa’s law appears to come closest, with a policy that explicitly prohibits law enforcement access to newborn samples. In addition, more states should implement limits on how long samples are kept—limiting them to the amount of time stated in medical best practices — and should require informed consent to the use of samples beyond the actual screening.

Date

Tuesday, July 26, 2022 - 11:15am

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James Esseks, Director, LGBTQ & HIV Project, ACLU

The Respect for Marriage Act received bipartisan support in Congress and signals how far public conversations around marriage equality have evolved in recent years. Here’s why that’s a big deal but why — contrary to much of the reporting on it — the measure is actually fairly limited.


Why did the House of Representatives first pass the Respect for Marriage Act?

The push behind the Respect for Marriage Act was Justice Clarence Thomas’ concurring opinion in Dobbs v. Jackson Women’s Health Organization, the Supreme Court’s Mississippi abortion decision in which it overturned Roe v. Wade. Justice Thomas urged the court to overturn its rulings establishing a fundamental constitutional right to use contraception, the right of same-sex couples to marry, and a right to form intimate sexual relationships with other consenting adults. With the right to marry potentially at risk, our friends in Congress wanted to do something.


The law garnered the most support ever for a pro-LGBTQ bill in Congress.

The bill passed the House in July with a large, bipartisan vote of 267-157, making it the most pro-LGBTQ vote in Congressional history. Forty-seven House Republicans voted yes, even in this supremely partisan and bitterly divided Congress, where conservatives are vigorously pushing anti-LGBTQ measures and rhetoric. In contrast, the Equality Act, the LGBTQ movement’s highest priority bill in Congress, which would expressly add LGBTQ people to the Civil Rights Act, passed the House a year ago with a vote of just 224-206, with only three Republicans voting in support. The much larger bipartisan support for the Respect for Marriage Act is a hopeful sign of potential progress to come.


While the bill and bipartisan vote are important, the bill is quite limited.

Here’s why: The Respect for Marriage Act repeals the 1996 Defense of Marriage Act, which in turn did two things: DOMA barred the federal government from respecting the marriages of same-sex couples who were married under state law, excluding them from federal recognition in over 1,000 contexts, from Social Security survivor benefits to the ability to sponsor a spouse for citizenship to equitable tax treatment. It also said that the Full Faith and Credit Clause of the Constitution doesn’t require states to respect the marriages of same-sex couples performed by other states.

The Supreme Court struck down the federal recognition portion of DOMA in the 2013 United States v. Windsor decision. After Dobbs, people fear that Windsor could be overturned, so the Respect for Marriage Act fully repeals the federal respect portion of DOMA and replaces it with a requirement of respect by the federal government. It also repeals the Full Faith and Credit portion of DOMA, replacing it with a statement that Full Faith and Credit requires inter-state recognition. Those would both be significant advances that would backstop the Supreme Court’s ruling in Windsor and the inter-state recognition portion of its ruling in Obergefell v. Hodges should they be overturned.


The Respect for Marriage Act would not require any state to allow same-sex couples to marry.

If the Supreme Court overturns Obergefell v. Hodges, which established that the fundamental right to marry covers same-sex couples, the Respect for Marriage Act would not stop any state from once again refusing to issue marriage licenses to same-sex couples. The federal government would still be required to respect same-sex couples’ already-existing marriages, as would other states in many circumstances. But a state that wanted to get out of the business of issuing marriage licenses to same-sex couples would not violate the Respect for Marriage Act.

The second reason that the landmark vote on the Respect for Marriage Act is limited in effect is that it’s not clear that the bill will actually make it out of the Senate given the 60-vote requirement. That would require 10 Republican senators to join all 50 Democratic senators in agreeing to let the bill get to a vote, and then a majority of senators to vote yes. Despite the significant bipartisan support in the House, progress like that in the Senate is still a very steep hill to climb.


The Respect for Marriage Act is important, but Congress and the President need to do much more.

Despite the bill’s passage, the LGBTQ community remains under intense attack in the states. A record number of anti-trans and anti-LGBQ bills were introduced and passed in state legislatures over the past two years. These measures bar trans and non-binary people from access to health care, from updating their identity documents, and from full participation in daily life. They seek to erase trans people from society and to ban schools from talking about the mere existence of LGBTQ people.

Our freedom to marry indeed needs protection from Congress. But we also need to fight against these broader attacks on the LGBTQ community, especially trans and non-binary people. Passing the Equality Act would be a good start. Congress needs to fight as though trans lives depend on its actions, because they do.

Date

Thursday, July 21, 2022 - 1:15pm

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