Why is there no paid maternity leave in United States (federal level)?

  • According to this document (page 3), US is an exception when it comes to total paid leave related to maternity (paid maternity leave + paid parental and home care leave available to mothers). The OECD countries average is about one year (55.2 weeks).

    According to Wikipedia, there seem to be some benefits associated with paid maternity leave:

    A Harvard report cited research showing paid maternity leave “facilitates breastfeeding and reduces risk of infection”, but is not associated with changes in immunization rate. This research also found that countries with parental leave had lower infant mortality rates. Returning to work within 12 weeks was also associated with less regular medical checkups. Data from 16 European countries during the period 1969-1994 revealed that the decrease of infant mortality rates varied based on length of leave. A 10-week leave was associated with a 1-2% decrease; a 20-week leave with 2-4%; and 30 weeks with 7-9%.[44] The United States, which does not have a paid parental leave law, ranked 56th in the world in 2014 in terms of infant mortality rates, with 6.17 deaths per every 1,000 children born.

    Question: Why is there no paid maternity leave in United States? (as opposed to the the vast majority of developed countries)

    I wonder if we need a canonical question explaining the role of the US Federal government for those unfamiliar with how the US Federal-State dichotomy works. I feel like there are a lot of questions like these that mistake the US Federal government as the only government in the US.

    @IllusiveBrian - I think such a question makes sense, as many of the non-US users might not be familiar with this.

    Are you asking for an objective reason (with a rather pedestrian answer of "because there's not enough political support to get enough votes") or for subjective reason ("why isn't there enough support")

    @user4012 - "why isn't there enough support" sounds more interesting, but also more complicated.

    @Alexei - yeah. And danger of being subjective. I asked generically on Meta what we want to do since this kind of question seems pretty frequent

    The question is bizarre; government programs do not exist by default and then must be eliminated for reasons. There's no federal program like that because no President ever signed that bill into law. Why not? Because no President was ever presented such a bill. Why not? Because the House and Senate never passed such a bill. Why not? We could keep on asking why nots forever.

    @IllusiveBrian: And perhaps another one about the general view of the proper functions of government in the US vs in some other countries.

    @Alexei, I think you have a few answers that should satisfy your question. If not, I suggest you clarify your question so that we can further help you.

    Your Harvard report is bogus. There are 2 reasons why the USA appears to have higher mortality rates. The USA counts ALL babies born as being born, unlike other countries. This a major factor. More subtle is that infant mortality rates differ by race. The USA has a large amount of diversity that other countries don't. Additionally, the suggestion that paid maternity leave will change things is also bogus. The people that would get this benefit are the middle-class and up. They don't have an infant mortality problem, it is the other end of the income spectrum where the problem exists.

    You seem to be suggesting that we should expect the US to be similar to other developed countries. But it is very different in so many respects. The death penalty, gun laws, public health care, the banking system, attitudes to climate change... One of the big differences between the US and other developed countries is that far fewer people travel abroad frequently, so there is far less tendency to absorb ideas from other countries.

    @EricLippert laws don't exist by default in other countries either, yet every other developed country mandates paid maternity leave. It doesn't seem unreasonable to me to ask why the US is different.

    @yjo: It seems unreasonable to me. I knew a guy once who made small talk at parties like this: "Hi there new person, I enjoy talking about sailing. Do you sail? No? **Why not?**" It was funny, you see, because it's difficult to justify a negative. The question is basically the same: "why have you not gotten elected to congress and passed a mat leave bill?" except it is being asked of *everyone in America*. It's not a reasonable question.

    @Dunk, Further complicating it is that the US also counts abortions as an infant death while alot of countries do not. For example Cuba only counts infants that dies if it was born in a hospital and not a result of a midwife.

    @yjo - The answer to "why" is very easy. The USA has traditionally believed that the government should not be mandating people's private affairs. In this case, the compensation provided by people's employers. Fortunately or unfortunately, the USA's attitude on government intrusion is changing, including one specific party whose desire is to control people's thoughts and speech in addition to their actions. They view that as a good thing. That's one of the reasons the country has become so divided. Europeans are used to the government telling them what to do, that's why they have those laws.

  • There are states which have paid maternity leave laws [1], and many private employers do offer paid maternity leave. The question of why the United States does not have a universal paid maternity leave is complicated, as most political discussion are.

    A lot of it boils down to individual freedoms vs federal responsibility. In order for the federal government to pass a new law that restricts individual (including private business) rights, it generally needs to be shown that doing so fulfills a role of the federal government and that it does so using the least restrictive means.

    Additionally, enough members of congress have to be convinced that it is a necessary bill. This is difficult. There is a lot of disagreement between the amount of government involvement needed.

    For some additional information, consider H.R. 1022 - 115th Congress. This bill is only for federal employees, so the constitutional issue is reduced. But we still see extreme partisanship with only one Republican co-sponsor, even though there are a total of 75 co-sponsors. This partisanship makes it even more difficult for a bill to make it into law.

    Least Restrictive Means

    There seems to be an issue with the concept of "least restrictive means." The fifth amendment states that no person shall be deprived of life, liberty, or property without due process of the law, while the 10th says that any power not delegated to the federal government is reserved first to the people and then the states. A federal provision which mandates PTO of any kind comes into conflict with those provisions. We therefore have a conflict between law and constitution. Therefore a law which mandates paid maternity leave must (1) satisfy some interest of the federal government, as laid out by the constitution and (2) must do as little to conflict with the 5th and 10th amendments as possible.

    So, in order to have a more relevant comparison, OECD should have not included the United States as a whole, but each individual US State which may regulate maternity leave. Does this make sense?

    Alexei, the question was simply about why the United States did not have paid maternity leave. I answered that question. And in some ways the US is more comparable to the EU than a single member nation of it.

    @Alexei each one that doesn't require it, yes (except that some states delegate much of their legislative powers to counties, making it even more complicated).

    As to constitutionality, I was trying to compare with the federal minimum wage. The case usually cited seems to be *West Coast Hotel*, and they didn't seem to apply your "least restrictive means" standard. But whatever the relevant standard is, if a minimum wage passes it, it's hard to see how mandatory maternity leave would fail.

    @NateEldredge: In fact, the constitutionality of the FLSA was challenged when it was originally passed. The Supreme Court found it constitutional, as an implementation of the interstate commerce clause, so it probably only applies to companies engaged in interstate commerce (but most states set state minimum wages equal to or higher than the federal minimum wage). Mandatory maternity leave would probably be similar--federally, it could only apply to companies engaged in interstate commerce.

    Another relevant part of the constitution is: I.10/1 "No state shall ... pass any ... Law impairing the Obligation of Contracts." So, if a contract says "no maternity leave will be granted", and a state says: "you must grant maternity leave", that impairs the obligation of that contract. For federal law, it can only really be passed under the interstate commerce clause, which means it would only apply to interstate commerce.

    The basic answer is that the US does not have anything vaguely resembling a National Health Service. And this is largely because of a knee-jerk reaction against such "socialist" concepts.

    discussion -> discussions.

    "There is a lot of disagreement between the amount of government involvement needed." Missing words?

    @vasshu : Germany is a federal state just like the US (although I think the Federal Government is a little stronger in the US).

    @JerryCoffin Even public school employees and hospital employees are covered by FSLA as held in *Maryland v. Wirtz*, 392 U.S. 183 (1968). See also *Garcia v. San Antonio Metropolitan Transit Authority* https://en.wikipedia.org/wiki/Garcia_v._San_Antonio_Metropolitan_Transit_Authority The commerce clause has been construed very broadly to consider anything even remotely related to commerce.

    @DavePhD: Sorry--I should have been clear that I was talking only about what the constitution *actually* allows, not how it's been interpreted to fit people's foregone conclusions about what they want it to mean.

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Content dated before 7/24/2021 11:53 AM

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