Tuesday, March 18, 2014
Mary Ziegler (Florida State) joins us as a guest blogger this month. Her work in legal history focuses on the law and history of abortion, illegitimacy, contraception, marriage, and child care.
Whom are we studying when we study the history of gender and the law? Some answers to this question seem obvious. We study pioneers like Elizabeth Cady Stanton and Alice Paul. We celebrate the accomplishments of thinkers like Ruth Bader Ginsburg and Catharine MacKinnon. In researching my book, I often found the answer to this question much less clear-cut. In contemporary politics, the identities of the pro-choice and pro-life movements seem stable and straightforward. In the immediate aftermath of the Roe decision, things were far less simple. An influential committee in the ACLU worked to identify fetal rights compatible with reproductive liberty for women. Feminists viewed issues like fetal tissue research with ambivalence. Influential antiabortion activists fought for federal legislation banning pregnancy discrimination. Indeed, some pro-lifers argued for what they saw as women’s right to choose, claiming that women did not enjoy true reproductive freedom unless the State protected them against both pregnancy discrimination and the perils of poverty.
A rapidly shifting gender politics forced many of these lawyers and grassroots activists to make painful choices. The mobilization of the New Right and Religious Right, the focus of abortion-rights activists on electoral politics, and the realignment of both political parties helped to create the “pro-choice” and “pro-life” categories we now know. So too did difficult and hotly debated strategy decisions made by members of each opposing movement. For many, the creation of contemporary abortion politics was a painful change, forcing women to choose between two identities when neither accurately reflected their fundamental beliefs about gender or sex discrimination.
Part of the task for historians of women and the law is to remain open to the stories of those who don’t always come to mind when we think about feminist legal history. These stories may not change our politics or our views of the relationship between gender and the law today. Just the same, these stories powerfully illustrate why gender matters and how gender changes. They remind us how entrenched political and legal realities once seemed—and may once again seem—far from inevitable