¶1concurring in the result:
¶2¶21 I join in the result announced by this court in Justice Wilkins' opinion. I write separately because I am convinced that gender discrimination motivated Congress when it enacted the Family Medical Leave Act's self-care provision. See 29 U.S.C. § 2612(a)(1)(D) (2000). Two of my colleagues share this view, and on this point I speak for the court. I disagree with the lead opinion's defense of state sovereign immunity which is tied to a misapprehension that Congress did not enact the self-care provision in response to a concern about gender discrimination. In my view, sovereign immunity insulates the State from Ms. Nicholas' claim brought under the self-care provision of the Act only because Congress failed to complement its gender-based statutory rationale for self care with evidence that states have practiced gender-based discrimination related to self care.
¶3122 Congress possesses expansive authority through the Fourteenth Amendment to enact legislation that enforces the provision's substantive guarantees. See U.S. Const. amend. XIV, § 5. This power includes the ability to subject states to private suits for monetary damages. For our purposes, the exclusive leash on congressional power in this arena is the requirement that a statute provide an appropriate remedy for an identified constitutional violation and not merely "attempt to substantively redefine the States' legal obligations." Kimel v. Fla. Bd. of Regents, 528 U.S. 62, 88, 120 S.Ct. 631, 145 L.Ed.2d 522 (2000). A reviewing court assessing the merits of a sovereign immunity challenge to the validity of a federal statute must both identify the seope of the constitutional right at issue and determine whether Congress demonstrated a "pattern of constitutional violations on the part of the States in this area." Nev. Dep't of Human Res. v. Hibbs, 538 U.S. 721, 729, 123 S.Ct. 1972, 155 L.Ed.2d 953 (2003). Finally, a reviewing court must consider whether the statute provides an appropriate remedy. Id.
¶4123 To me, the relevant legislative history and statutory language display unmistakable links between the Act's self-help provision and the right to be free from gender discrimination with regard to unpaid leave, a permissible exercise of Fourteenth Amendment congressional power. See eg., 29 U.S.C. § 2601(b)(4) (expressing a desire to "mini*814mize[ ] the potential for employment discrimination on the basis of sex by ensuring generally that leave is available for eligible medical reasons (including maternity-related disability) ... on a gender-neutral basis"). The Act entitles a qualifying employee to a maximum of twelve weeks of unpaid leave due to a serious health condition, id. § 2612(a)(1)(D), and features a complementary cause of action against employers who might interfere with the exercise of that right, id. §§ 2615(a)(1), 2617(a)(2). Congress considered the term "serious health condition" to include "ongoing pregnancy, miscarriages, complications or illnesses related to pregnancy, such as severe morning sickness, the need for prenatal care, childbirth and recovery from childbirth." S.Rep. No. 108-8, at 29 (1998), U.S.Code Cong. & Admin.News 1998, at 3, 31. Congress voiced its concern that pregnant women-who are "generally under continuing medical supervision before childbirth" and may require "several days off for severe morning sickness or other complications" or "additional time off during the recovery period from childbirth"-may suffer from employment discrimination. Id.; ef. id. at 29, U.S.Code Cong. & Admin.News 1993, at 31 (referencing the Pregnancy Discrimination Act's legislative history and discussing the lengthy medical recovery period associated with even a normal childbirth, "with a longer period where surgery is necessary or other complications develop"). These expressions of congressional intent regarding health conditions unique to women make not fairly debatable that the self-help provisions of the Act were motivated by a concern for gender discrimination.
¶5124 Were this all that mattered, the Act would likely displace the State's sovereign immunity. But to lawfully abrogate sover-cign immunity, Congress must have compiled an adequate record of discrimination by state employers. Congress did not make this case. On this point, the lead opinion and I are in full agreement, and that is enough to preserve sovereign immunity and decide this case.