姙娠에 대한 不利益에 관한 美聯邦大法院判例

• 영문명: The U.S. Supreme Court Cases on the Penalties on Pregnancy
• 발행기관: 한국헌법학회
• 저자명: 최희경(Choi Hee-Kyung)
• 간행물 정보: 『헌법학연구』憲法學硏究 第11卷 第3號, 415~443쪽, 전체 29쪽
• 주제분류: 법학 > 법학
• 파일형태: PDF
• 발행일자: 2005.09.01

영문 초록

Key structural penalties on pregnancy are forced maternity leaves, disability policies that excluded benefits for pregnant women and denial to unemployment benefit for unemployed pregnant women. In the early LaFleur case of the issue of forced maternity leaves, the U. S. Supreme Court had determined the unconstitutionality based on the right for privacy of women. However since then, most rulings were based on the right of equality and not right of privacy and for the programs run by the state, rulings were based on the equal protection provision and based on Civil Law Title Ⅶ or Pregnancy Discrimination Act for the private employer programs. Accordingly, this study examines whether the individual pregnancy related policies with multiple purposes and its relative penalties concur with the privacy right and equality right of the women on the constitutional law. That is to say, whether the ruling of the Supreme Court has fully guaranteed the autonomy right and equality right and whether the equality right is in the light of the same treatment as man or it needs to take the particular difference between men and women into account. In conclusion, following the evaluation on the ruling of the U.S. Supreme Court, it cannot be said that women’s demand for the right of privacy nor equality has been fully reflected in the penalty on pregnancy. Firstly, the court has defined in the above case that the discrimination on pregnancies not a sexual discrimination and has not actively determined the penalties issues related to pregnancy. On the contrary, the Congress enacted the Pregnancy Discrimination Act and criticized the ruling of the judicature, but even after that, there were some rulings that did not reflect gender equality. Secondly, by dealing with the issue of the right of the pregnant woman worker, the ruling had only concentrated on the privacy right in the beginning and ruled with only equality right henceforth. However both rights have to be considered together as the privacy right protects the freedom to make decision on reproduction without interference from the state and the equality right is centered on whether the state has dealt the issue without sexual discrimination. Therefore, if the Supreme Court had considered the privacy right of the women to give birth without any undue intervention together with the equality right following the LaFleur ruling, the court could have guaranteed more faithfully the women’s right.

목차

Ⅰ. 序說

Ⅱ. LaFleur 判決上의 姙娠에 대한 不利益

Ⅲ. Geduldig 判決 및 以後 判決에서의 姙娠에 대한 不利益

Ⅳ. 結論

참고문헌

Abstract