Gender and the Law Prof Blog

New Book: Work, Parenting and Inequality--Workplace Laws and Policies from 1898 to 2018

Candace-Saari-Kovacic-Fleischer, Work, Parenting and Inequality: Workplace Laws and Policies from 1898 to 2018

Work, Parenting and Inequality: Workplace Laws and Policies from 1898 to 2018 considers whether laws in the United States make it difficult for people to be employees and parents at the same time. The book covers constitutional law, employment law, social security law, poverty law, discrimination law, disability law, and veterans law in historical context beginning with the 1890s. To do this, the book includes copies of primary sources—reports, bills, laws as originally passed, signing statements, amendments, and bills not passed—and court cases arranged chronologically by topic. Because the book focuses on policies and consequences of laws, it explains how to understand each law before introducing it in statutes and cases. Thus, it is intended that the book be a reference for people in a variety of disciplines.

The Use of Agency Law for Married Women's Business Rights in Historic Nantucket

Mary L. Heen, Agency: Married Women Traders of Nantucket, 1765-1865, 21 Georgetown J. Gender & Law (2019)  

Before the enactment of separate property and contract rights for married women, generations of married women in seaport cities and towns conducted business as merchants, traders and shopkeepers. The first part of this article shows how private law facilitated their business activities through traditional agency law, the use of powers of attorney, trade accounts and family business networks. These arrangements, largely hidden from public view in family papers, letters, and diaries, permitted married women to enter into contracts, to buy and sell property, and to appear in court. Private law, like equity, thus provided a more flexible alternative to the common law of coverture under agreements made within the family itself. On the other hand, public law proved much more restrictive for wives who were not part of a viable or harmonious marriage. In post-revolutionary Massachusetts, for example, the feme sole trader statute and various judicially adopted exceptions to coverture applied only to certain wives abandoned by their husbands.

The second part of the article provides a case study of three generations of married women traders from Nantucket during the whaling era, the oil exploration business of its time. Their stories show how some married women, within the constraints of the law as it developed in Massachusetts without courts of equity, attained a form of autonomy in business or commercial activity at the same time that they fulfilled their family responsibilities. Their stories also uncover tensions underlying the first wave of women’s rights reform efforts in the mid-nineteenth century, including the developing separation between work and home that continues to pose challenges for family law and for men and women today. In a broader sense, this historical study also illuminates the interaction among private law, public law, and evolving social practice as the law both reinforced and shaped family roles during a period of increased commercialization and industrialization.

Dads as Allies for the Next Generation of Gender Equality

Michelle Travis (University of San Francisco School of Law) has just published a new book, Dads For Daughters: How Fathers Can Give Their Daughters a Better, Brighter, Fairer Future. It's available for pre-order on Amazon and is launching a the end of January from Mango Publishers. Here's the abstract:

 

For decades, women have been breaking down barriers, cracking the glass ceiling, and proving and re-proving themselves. Yet our next generation of girls is still growing up in a profoundly unequal world. It's time to expand our efforts and accelerate our progress toward equality. To do that, we need more men to get involved.

 

Dads For Daughters is an invitation for more to join the fight for women's rights. Inspired by their daughters, fathers are uniquely positioned to become powerful allies for girls and women. But in a post-#MeToo world, it can be difficult for men to step in and speak up. Despite these challenges, many men are still coming forward as ready, willing, and able supporters, who want to learn more about becoming part of the solution. That's where Dads For Daughters can help. This book arms fathers with the data they need to advocate for gender equality. It also provides role models by sharing inspiring stories of dads of daughters who have already had an impact. Most importantly, it offers concrete strategies and expert advice for how more men can get involved.

 

In this book, dads of daughters will find a wide range of options for where to focus their energy--from mentoring women to equalizing pay, from sports fields to science labs, from building empathy to combating gender bias, from boardrooms to ballot boxes. With every small step, dads have the power to make incredible change and support the progress of girls and women in their families, workplaces, and communities.

 

Dads For Daughters also offers women a practical guide for recruiting passionate men into action. It highlights successful strategies for working with men to support girls and women, along with resources for engaging men in gender equality initiatives. Women and men are stronger working together. Together, we can create a more successful future for all of our daughters to thrive.

 

 

Woman Challenges UT Lewdness Statute as Unconstitutional, Stemming from Charge from Being Topless in her own Home in front of Step-Children

Utah Woman Charged with Lewdness After Being Topless in Her Own Home

A Utah woman has been charged with lewdness in her own home after her stepchildren walked into the room and saw her bare chest.

 

Attorneys for the American Civil Liberties Union of Utah argued this week that the statute under which Tilli Buchanan, 27, was charged is unconstitutional, and they have asked a judge to drop the charges against her and change the state law.

 

Buchanan and her husband had been installing drywall in the garage and had taken off their shirts that were itchy from the fibers, she told The Salt Lake Tribune.

 

When her stepchildren, aged 9, 10 and 13, walked in, she "explained she considers herself a feminist and wanted to make a point that everybody should be fine with walking around their house or elsewhere with skin showing," her lawyers wrote in court documents, The Associated Press reports.

 

Now the state had charged Buchanan with three charges of lewdness involving a child. The charge is a Class A misdemeanor.

 

Though her husband was similarly clad, he was not charged with a crime.

 

The state's lewdness statute criminalizes exposure of "the female breast below the top of the areola" in the presence of a child in a private place "under circumstances the person should know will likely cause affront or alarm."

 

If convicted, Buchanan faces imprisonment, fines and the requirement to register as a sex offender for 10 years.

 

The charges were filed after the children's mother told that authorities she was "alarmed" by the incident, according the AP.

 

Buchanan's case raises a number of constitutional concerns, says Leah Farrell, an attorney at the ACLU of Utah.

 

To begin with, "the criminalizing of behavior that many people don't consider criminal, and is normal."

 

Most people wouldn't consider, for instance, that they "might be brought into court because of their dealing with their dirty clothes within their house. Anything that really extends the criminal justice system into people's homes in this way is something that we're interested in looking at closer," Farrell says.

 

And then there's the gender issue.

 

"Simply because Miss Buchanan is a woman, she is facing this charge," Farrell says. "Therefore, women throughout Utah are at higher risk of facing a criminal charge simply because of their gender. There are different ideas around what morality is or is not. But the state's reach to criminalize morality based on gender and gender stereotyping is incredibly problematic."

 

Farrell notes that the statute's language requiring women to predict whether going topless is likely to cause "affront or alarm" imposes an additional burden that is not required of men.

Leveling Down Gender Equality by Denying Remedies for Equal Protection Violations

Pleased to see that my recent article, Leveling Down Gender Equality, in the Harvard Journal of Law & Gender (2019), was reviewed favorably today in JOTWELL   Chao-Ju Chen, Equality for Whom: The Curious Case of RBG's Equality and Morales-Santana's Nationality.

Sessions v. Morales-Santana is a curious case of gender equality, simultaneously celebrated for refining the Supreme Court’s view on sex-classification while condemned for providing the plaintiff “the mean remedy.”¹ Striking down a gender-based distinction in the Immigration and Nationality Act (“INA”) by arguing against legislating based on gender stereotypes, it is a landmark success for Justice Ruth Bader Ginsburg and the liberal feminist brand of equality jurisprudence. Refusing to grant the plaintiff citizenship by offering a leveling-down remedy, it is a cruel blow to the plaintiff, whose win in the nation’s equality law is a loss in his unequal life. Tracy A. Thomas’ Leveling Down Gender Equality provides a deliberate critique that details the Court’s decision in the historical context of immigration laws and gender equality review, sheds light on the dark sides of celebrity Justice Ginsburg’s gender equality jurisprudence, and proposes a way forward: “leveling up” as the presumption. It is a must-read for anyone who wonders what has happened to Ginsburg’s gender equality jurisprudence and what to do about the Court’s mean remedy.***

The core mission of Leveling Down Gender Equality is to rebut the Court’s remedy presumption that leveling-up (extension) and leveling-down (nullification) are equally valid remedies for a violation of equality and to argue for the presumption of leveling up to protect the right to a meaningful remedy. From Thomas’ point of view, the answer to the curious case of Ginsburg’s equality and Morales-Santana’s nationality lies in the Court’s choice of remedy, rather than in its choice of equality review (anti-classification or anti-subordination). She began her adventure by first explaining the Court’s mean remedy and alternative remedies considered but not adopted in detail (Part I), then argued for the presumption of leveling up (Part II) and reasoned why leveling down should be treated as a rare exception (Part III).

The highlights of Part I lie in its success in locating the mean remedy in the context of Ginsburg’s gender equality jurisprudence and judicial philosophy. Thomas refuted the convenient guess that the mean remedy was a pragmatic strategy to achieve majority, and argued instead that Ginsburg’s choice of eliminating preference for women “fits within her bigger concern about stereotypes, backlash, and denial stemming from protectionism” (P. 190) and was guided by her “deeper jurisprudential concerns about systematic gender norms” (P. 191) and preference for judicial constraint. Comparing what “then-professor Ginsburg” had said to what “Justice Ginsburg” did in Morales-Santana, Thomas showed how Justice Ginsburg, while maintaining then-professor Ginsburg’s preference for the “legislative-like role of the court” in remedial decisions, failed to employ then-professor Ginsburg’s proposed guidelines, which would have supported leveling up. She forcefully demonstrated that Justice Ginsburg “had the precedents for leveling up on her side, yet she adopted the countervailing view in the name of judicial restraint” (P. 193), and criticized Ginsburg’s omission, misreading and non-engagement with gender equality precedents which would have required stronger evidence of legislative intent and evaluations of equitable considerations as well as their implications that extension, rather than nullification, had been a generally preferred choice.***

The second step of Thomas’ mission is to establish the presumption of leveling up and leveling down as the rare exception. Relying on the familiar feminist critique that equality means more than mere formal equal treatment, Thomas argued for equality as equal concern. She contended that leveling down for gender equality is normatively inconsistent with constitutional requirement, because “denying a benefit in order to rectify inequality . . . fails to honor or effectuate the ultimate meaning of the operative constitutional right.” (P. 200.) She cited Palmer v. Thompson as an example to show how closing down all pools to remedy racially segregated swimming pools serves to perpetuate and reinforce, rather than abolish, racial inequality. On top of leaving inequality intact, she argued, leveling down will also discourage legal actions for justice and compromise citizens’ ability to “act as private attorney generals to help enforce the public laws of gender equality.” (P. 201.)

In her arguments against leveling down as a meaningful remedy for plaintiffs, Thomas invoked Ginsburg’s own judicial record to demonstrate how Justice Ginsburg has deviated from her professional past. In United States v. Virginia, Ginsburg made clear that the plaintiff’s rightful position was the targeted goal of equal protection remedy, which demanded to eliminate both the ongoing discrimination and the discriminatory effects of the past. Writing for the majority, Ginsburg rejected the defendant’s choice of remedy to provide a separate military education for women, and emphasized that the key question for the Court was the plaintiff’s denied benefit. Again, should Ginsburg have done what Ginsburg did in Virginia, an extension would have been the remedy for Morales-Santana. Besides, Ginsburg’s decision does not survive the test of valuing equitable concerns relevant to overcoming leveling up (cost or economic impact, harms to third parties, and broader national policy concerns). The legislative history of intent to discriminate against Mexican and Asian people should have been taken into account.***

At the end of the article, Thomas delivered her final blow to the case and concluded that “such a case does not leave a promising legacy for gender equality jurisprudence, but instead takes one giant constitutional step backwards.” (P. 218.) 

Placing Elizabeth Warren's Experience of Pregnancy Discrimination in Historical Context

Joanna Grossman, The Pregnant Pause: Placing Elizabeth Warren's Experience of Pregnancy Discrimination in Historical Context, Verdict

Elizabeth Warren reported that her contract as a teacher was not renewed when she was visibly pregnant at the end of her first year. The crowd went wild—not with sympathy for her plight, but with accusatory disbelief. Why would she get fired just for being pregnant? Because that’s what happened to pregnant women until 1978, when pregnancy discrimination became unlawful. Warren’s pregnancy was in 1971. But the public’s reaction to Warren’s report about her experience suggests that this country’s long history of legal and widespread pregnancy discrimination may need to be excavated. After all, if we don’t believe that women were discriminated against in an era in which such behavior was overt and commonplace, what is the likelihood that we will believe women who continue to experience discrimination today? We have come a long way, but there is still much work to be done.***

 

Pregnant women were subject to a particular set of whims. The idea of pregnant women doing paid work triggered a few common reactions, ranging from a paternalistic desire to protect them from the perils and demands of paid labor, to stereotypes about their physical capacity or willingness to service the “ideal worker” norm, to concerns about “lewdness” because pregnancy resulted from sex. These reasons, though varied, all led to the same outcome: the partial or full exclusion of pregnant women from the workforce. Actual and potential pregnancy was the justification for innumerable laws and policies that disadvantaged working women.***

 

In the first half of the twentieth century, many states imposed special limits on working women, most designed to protect and preserve women’s reproductive function. The Supreme Court upheld such a law in Muller v. Oregon (1908), permitting the state of Oregon to restrict the number of hours women, but not men, could work per day in a factory or laundry, notwithstanding having struck down a New York law that restricted the hours of all bakery employees under the now-defunct theory of economic substantive due process. Workers in general had a constitutional right to negotiate the terms of the labor, but women could be subject to special “protection” required by “her physical structure and a proper discharge of her maternal functions.” A brief filed in that case recited four ways in which a long work day was incompatible with womanhood: “(a) the physical organization of women, (b) her maternal functions, (c) the rearing and education of the children, (d) the maintenance of the home–are all so important and so far reaching that the need for such reduction need hardly be discussed.”***

 

At the height of the second wave women’s rights movement, pregnant women were in dire straits. There was only one shining light during the first half of the 1970s. During the same year it rejected an equal protection-based right against pregnancy discrimination in Geduldig, the Supreme Court invalidated aspects of public school mandatory leave policies for pregnant teachers. At issue in Cleveland Board of Education v. LaFleur were policies from two school districts forcing pregnant teachers to leave work early in their pregnancies. One school district also forced teachers to wait three months after childbirth before returning to work, regardless of their individual condition or capacity. The Court invalidated both rules under the Due Process Clause, which is the home for privacy-based rights related to reproduction—contraception, abortion, and childrearing. The Court’s concern was not that pregnant women were being singled out for adverse treatment, but that they were presumed to be incapable of work based on their condition without regard for their individual capacity. The Court thought it arbitrary that a pregnant woman who was not disabled by pregnancy would have to leave her job nonetheless just because other pregnant women might have been disabled at the same point in pregnancy. The oral arguments in that case revealed some of the bizarre notions that animated these rules. The lawyer for one of the districts explained that pregnant teachers had to be removed from the classroom because their swollen bellies would be confusing for the students, who might think their teacher had “swallowed a watermelon.” During the same term, the Court invalidated Utah’s unemployment compensation rules that prohibited a pregnant woman from collecting benefits because of presumed incapacity. These rulings ushered in an anti-stereotyping principle that meant it was fine to fire pregnant women who actually had some level of incapacity due to pregnancy or childbirth, but unacceptable to presume their incapacity simply from the fact of their condition.

 

New CA Law Allows Campaign Funds to be Used for Childcare to Promote Gender Parity Among Elected Officials

Bill Promoting Gender Parity Among Elected Officials Signed into Law by Governor Newsom

A bill introduced by Assemblymember Rob Bonta (D-Oakland) that would allow campaign funds to be used for child care by those who choose to run for elected office in California was signed into law Monday by Governor Gavin Newsom.

 

“AB 220 will help create greater gender parity among elected officials in California and more broadly help all parents with young children seek and serve in public office by allowing the use of campaign funds for child care expenses,” said Bonta. “I’m excited and extremely grateful to Governor Newsom for signing AB 220 into law.” 

 

AB 220 amends the Political Reform Act of 1974 to expressly allow campaign funds to be used for child care by those who choose to run for elected offices in California. 

 

Currently, there is no statute in California or official ruling by the California Fair Political Practices Commission (FPPC) allowing candidates to use campaign funds for child care purposes. That meant any person who attempted to use campaign funds for child care expenses had no statutory protection and would have been relying on a 20-year-old, non-binding advice letter by the FPPC which does not carry the weight of law. AB 220 provides certainty for parents of young children seeking office by placing this allowance in statute. 

Reading the 19th Amendment into Constitutional Jurisprudence

Neil Siegel, Why the Nineteenth Amendment Maters Today: A Citizen's Guide for the Constitution

Providing an excellent macro-level account of how the 19th Amendment is relevant to constitutional interpretation today, in reading the 19th Amendment and its history into a jurisprudence of equality.

Abstract:

This year marks the one hundredth anniversary of the ratification of the Nineteenth Amendment to the United States Constitution, a radically pro-democratic amendment that empowered roughly ten million women to vote in a general election for the first time. Given the practical and expressive significance of the Amendment, it is appropriate that the United States is honoring the occasion. But Americans might do more than honor their shared past. They might be encouraged to think about why the story of the Nineteenth Amendment matters to Americans living today. That story includes a half-century of social movement contestation over whether permitting women to vote would destroy or democratize the American family and the American constitutional structure. This Essay revisits the story of the Nineteenth Amendment—an unfinished narrative of both disappointment and hope—in the service of identifying reasons why that story relates to the lives of contemporary Americans. Its overarching objective is to suggest that the full story of the Amendment has always involved much more than a narrow debate over a determinate decision rule regarding women’s access to the franchise. To accomplish that objective, the Essay makes four points in four parts. The first two explain when and how voting rights for all women slowly became a reality, and the final two identify some implications of that history for American constitutional law and contemporary constitutional politics.

Part I considers which women were enfranchised when and why it matters. Part II considers some of the groups (men) and structures (federalism) that both impeded and facilitated woman suffrage. Part III explains the link between restrictions on woman suffrage and the social subordination of women to men, showing how the anti-subordination rationale of the Nineteenth Amendment bears on both its own interpretation and the interpretation of the Equal Protection Clause by the courts. Part IV turns to the contemporary implications of the story of the Nineteenth Amendment for American constitutional politics, including debates over the Equal Rights Amendment, unequal pay for equal work, paid family and self-care leave, and restrictions on access to contraception and abortion.

New Books: The Preacher's Wife on Women's Search for Spiritual Authority

Kate Bowler, The Preacher's Wife: The Precarious Power of Evangelical Women Celebrities

Whether standing alone or next to their husbands, the leading women of megaministry play many parts: the preacher, the homemaker, the talent, the counselor, and the beauty. Boxed in by the high expectations of modern Christian womanhood, they follow and occasionally subvert the visible and invisible rules that govern the lives of evangelical women, earning handsome rewards or incurring harsh penalties. They must be pretty, but not immodest; exemplary, but not fake; vulnerable to sin, but not deviant. And black celebrity preachers' wives carry a special burden of respectability. But despite their influence and wealth, these women are denied the most important symbol of spiritual power―the pulpit.

The story of women who most often started off as somebody's wife and ended up as everyone's almost-pastor, The Preacher's Wife is a compelling account of women's search for spiritual authority in the age of celebrity. 

Podcast: Law Professor Discusses Gender and US Asylum Law and the Difference Feminist Legal Thought Made

Signs, Ask a Feminist: Deborah Anker Discusses Gender and US Asylum Law

Aziza Ahmed: Hi, this is Aziza Ahmed. I’m a law professor at Northeastern University’s School of Law, and I’m so happy to be talking to Deborah Anker today as part of the Signs “Ask a Feminist” series.  Deborah, thank you so much for taking the time to be with us on this podcast today.

Deborah Anker: My pleasure.

AA: Your work has been so instrumental in helping advocates and lawyers acknowledge the complexity that gender brings to immigration and asylum law.

***

AA: I was curious to hear from you about when you felt like feminism really came to immigrants’ rights work. I’m sure in communities themselves it was there…

DA: I really thank the women’s movement for challenging the public-private distinction. That was key. And we learned that from the women’s movement—that so-called “private acts of violence” were of public concern and of human-rights concern, or were human rights violations. That was incredibly important.

AA: And became foundational to the types of gender-based asylum claims…

DA: It became very, very foundational for the cases that we brought. It was really the women’s movement that made us start thinking about it. People would come in and we would interview the man and find out what his problems were. We never thought that what happened to women would rise to the level of persecution or would be considered persecution by the adjudicators and by the authorities. That was incredibly important. That rape could constitute prosecution, that “private acts of violence” could constitute prosecution. I think we now understand that being forced to leave your child as a form of persecution.

Projecting Concepts of Gender Onto Same-Sex Divorce

Suzanne A. Kim & Edward Stein, Gender in the Context of Same-Sex Divorce and Relationship Dissolution. 

This article identifies ways that judges, lawyers, researchers, and policy makers may attend to the role of gender and gender dynamics facing same-sex couples upon divorce or other relationship dissolution. When same-sex couples marry, the legal system and society at large may project conceptions of gender onto same-sex couples, often in a manner that conflicts with couples’ intentions and practices. Gender and gender dynamics may affect the bases for dissolution, the financial aspects of dissolution, and the determination of child custody. The article also suggests directions for future research on the impact of gender on the dissolution of same-sex relationships.

Addressing Pre-Birth Inequalities in Women's Maternity and Health

Joanna Grossman, The Seeds of Early Childhood, 71 Florida Law Review Forum 117, 131 (2019)

The trajectory of childhood is often shaped before childhood even begins. Pre-birth inequalities are not natural or inevitable. Rather, we create and cement policy choices that reduce access to adult healthcare, restrict accessible contraception, impede access to abortion, and deny prenatal care. Together, these choices mean that, in the United States, we maintain very high rates of unwanted pregnancy and increasingly high rates of maternal mortality and morbidity, burdens that fall disproportionately on women of color and women of lower socioeconomic status. Equality demands that we address these disproportionate burdens.

Most States Prohibit Blending Surnames at Marriage

Hannah Haksgaard, Blending Surnames at Marriage, 30 Stanford L. & Policy Rev. 307 (2019)

In most states, marrying couples are severely limited in their surname choices at the time of marriage. While recent scholarship has focused on men’s limited surname choices, other important problems with the marital surname process exist. For example, the increasingly popular decision to blend surnames — taking parts of both current surnames to create an entirely new surname — is generally not allowed. Four states explicitly allow for surname blending on the marriage license, and three more allow for any surname to be adopted. This article argues the remaining states should follow suit by allowing surname blending and other surname options. In addition to providing too few surname options, in most states the current system creates ambiguities and problems because marriage licenses fail to reflect the married surname of either spouse. This article argues that states should update marriage licenses to include the surname a marrying couple chooses to adopt as the marital name.

Listen to Hannah discuss her work on the Ipse Dixit Podcast

New Progressive Oregon Family Leave Law First in Nation to Cover Minimum-Wage Workers

Oregon Paid Leave Law is Nation's First to Fully Cover Lowest Wages

Oregon Gov. Kate Brown on Friday signed what advocates are calling the nation’s most progressive paid family and medical leave measure, making the state the first in the country to offer 100% wage replacement for minimum-wage workers.

 

The law, which will pay out benefits beginning in 2023, gives 12 weeks paid time off to new parents, victims of domestic violence and those who become ill or need to care for a sick family member. It also includes people who may be in the country illegally and those working part time. Residents need to work 1,000 hours a year to qualify.

 

The state joins eight others and the District of Columbia in offering paid family leave.

 

“This is one of the most inclusive and equitable paid leave laws in the country,” said Andrea Paluso, executive director of Family Forward, the advocacy group who helped craft the bill. “It’s accessible to nearly every worker and provides enough benefits so people can just focus on taking care of themselves or their families when they need to.”

 

The law allows workers to take time off not only to care for blood relatives, but also for significant others, friends and other close associates that are the “equivalent of a family relationship.”

 

Workers will also be able to take paid leave in non-consecutive increments, allowing those with chronic illnesses to take time off when needed.

New Book: Deception in Intimate Relationships

Jill Hasday’s new book, Intimate Lies and the Law, is out from Oxford University Press.  She says that deception within intimate relationships is a fascinating topic—especially when it happens to someone else.

For more information, you can check out Jill’s website: https://jillhasday.com/. 

Here’s a description of the book:

Intimacy and deception are often entangled.  People deceive to lure someone into a relationship or to keep her there, to drain an intimate’s bank account or to use her to acquire government benefits, to control an intimate or to resist domination, or to capture myriad other advantages.  No subject is immune from deception in dating, sex, marriage, and family life.  Intimates can lie or otherwise intentionally mislead each other about anything and everything.

Suppose you discover that an intimate has deceived you and inflicted severe—even life-altering—financial, physical, or emotional harm.  After the initial shock and sadness, you might wonder whether the law will help you secure redress.  But the legal system refuses to help most people deceived within an intimate relationship.  Courts and legislatures have shielded this persistent and pervasive source of injury, routinely denying deceived intimates access to the remedies that are available for deceit in other contexts.

Jill Elaine Hasday’s Intimate Lies and the Law is the first book that systematically examines deception in intimate relationships and uncovers the hidden body of law governing this duplicity.  Hasday argues that the law has placed too much emphasis on protecting intimate deceivers and too little importance on helping the people they deceive.  The law can and should do more to recognize, prevent, and redress the injuries that intimate deception can inflict.

Entering an intimate relationship should not mean losing the law’s protection from deceit.

Legal Thinking about the Declaration of Sentiments for Women's Rights at Seneca Falls on its 171st Anniversary

July 19 & 20 celebrated the 171st anniversary of women's first official demand for equal political, civil, and religious rights in the Declaration of Sentiments at Seneca Falls, New York.  The Women's Rights National Historical Park now sits at the sight of the Wesleyean Church where the convention took place, and is worth a visit.

I have written much about the Declaration of Sentiments and its author, pioneering feminist leader Elizabeth Cady Stanton. The Declaration and its articulation of 18 necessary rights for women, as well as its structural elimination of "separate spheres" of women's inferiority, essentially provided a road map for legal and social reform for women's equality and equity.

I spoke about the history a bit with the National Constitution Center in a forthcoming We the People podcast. 

I wrote about the broad agenda of the Declaration and the first women's rights movements in the forthcoming article, More Than the Vote: The Nineteenth Amendment as Proxy for Gender Equality, Stanford Journal of Civil Rights and Civil Liberties.

I traced its historical origins and legal significance particular in the area of family law and social rights in my book, Elizabeth Cady Stanton and the Feminist Foundations of Family Law (NYUP 2016).  I blogged about the opening chapters addressing the context and specifics of the Declaration of Sentiments, here at Introduction  and here, "What Do You Women Want?.

 

Voluntary Motherhood: What Did 19th Century Feminists Think About Abortion and Birth Control

There is a lot of current interest in this 100th anniversary year of the 19th Amendment and the campaign for women's rights on whether the early feminists supported abortion.

The Atlantic has this recent article: Olga Khazan, Did the Suffragists Support Birth Control? (featuring historians Linda Gordon and Lisa Tetrault)

I was interviewed in a previous article in The Atlantic about the question: The Abortion Debate and the Legacy of Women's Suffrage (June 2019)

And I spoke about this topic, among other things regarding the first women's rights movement, in this We The People podcast with the National Constitution Center.

There is interest because abortion is such a key issue of women's rights and women's oppression today.  Both pro-choice and pro-life women look for historical grounding as to what the first leaders thought.

As Linda Gordon has written in her seminal book on the topic, The Moral Property of Women, it is not that easy to make the connection as the context and the debate were different in the nineteenth century.  Yet there was significant consensus among women reformers, both conservative and progressive, as to "voluntary motherhood" and the right of women solely to control pregnancy and marital relations through abstinence.

I have written more specifically about this question with respect to the views of pioneering feminist leader Elizabeth Cady Stanton: Tracy A. Thomas, Misappropriating Women's History in the Law and Politics of Abortion, 36 Seattle L. Rev. 1 (2012)

I also wrote about this question of Stanton's views on abortion and birth control in my book, Elizabeth Cady Stanton and the Feminist Foundations of Family Law (NYUP 2016).   Here is an excerpt from Chapter 4 of the book:

The “Incidental Relation” of Mother

 The woman is greater than the wife or the mother; and in consenting to take upon herself these relations, she should never sacrifice one iota of her individuality to any senseless conventionalisms, or false codes of feminine delicacy and refinement.   ~ Letter from Mrs. Stanton to Seventh National Woman’s Rights Convention,  Nov. 24, 1856

Stanton continued to demand women’s freedom in marriage by focusing on a woman’s right to choose motherhood. In a time when motherhood defined all women culturally and legally, Stanton challenged the entrenched norm dictating that women’s primary role in life was that of mother. Womanhood, she said, was the “first consideration” of women’s own happiness: wifehood and motherhood secondary, “mere incidents of their lives.” Stanton identified women’s burdens from enforced motherhood resulting from their lack of reproductive control and men’s sexual privilege as victimization and oppression, not natural or ordained relations. Her solution was to give the woman alone the right to choose and control procreation. She demanded the law recognize a woman’s right to bodily autonomy and self-determination in sexual relations, a radical contribution to the evolving feminism.

The “sovereign right to her own person,” as Stanton articulated it, was a wife’s cognizable right to counter the husband’s common-law conjugal right. It was a right of sexual refusal and abstinence, not contraception. The nineteenth-century woman’s movement shared Stanton’s critique of the male sexual prerogative in marriage and endorsed this alternative ideology of “voluntary motherhood” establishing a wife’s right to refuse sexual relations. Women were entitled to this gendered, unilateral control over reproduction because of their individual right to bodily autonomy and because they alone bore the consequences of maternity to their physical health and livelihood from the obligations of childcare. Stanton encouraged women to exercise this right of sovereignty in their own marriages to produce fewer, but healthier children under an “enlightened motherhood” theory of maternity. This contradicted the social conservatism of the late nineteenth-century, which demanded that white, middle-class women fulfill their duty to produce more children “to preserve the race” against threats from increased immigration and racial diversity.

Women’s growing awareness of the oppression of forced maternity led to an increase in the practice of abortion by the mid-nineteenth century. The increase triggered moral outrage, public debate, and legislative reforms resulting in the criminalization of early-term abortions for the first time. Stanton joined the discussion on her own terms, eschewing the moralization and refocusing the debate on the underlying issues of women’s legal and social victimization. She attacked the double-standards of sexuality that tolerated male licentiousness, but imposed all costs of extramarital sex on women, from the social shunning of unwed mothers to the crimes of prostitution and infanticide. Stanton used the context of infanticide to make more sweeping criticisms of the structural defects of the legal system that excluded women at every level—as  lawmakers, judges, juries, lawyers, and witnesses. Stanton demanded the participation of women in all aspects of the legal process to remedy the unjust prosecution of desperate acts like infanticide and the resulting injustice of judgment without mercy.

Involuntary Motherhood

The terms of marriage in the nineteenth century included the husband’s prerogative to control sexual relations. A husband had the power to demand sexual intercourse, while the wife had the duty to submit. The law justified the husband’s sexual right to his wife’s body under a theory of initial consent to the marriage. Drawing from the political theory of consent of the governed, the justification was that the woman’s consent to marriage was irrevocable consent to all sexual relations at any time. This was a status-based rule, operating automatically for all marriages regardless of individual choice or dissent. The laws of marriage, divorce, and rape endorsed the husband’s sexual privilege. In divorce cases, courts refused to grant wives’ petitions on the basis of cruelty from forced marital sex, finding that “copulation itself was in the exercise of the marital right,” and a usual and expected part of marriage. At the extreme, this marital consent theory excused marital rape. Rape by definition could not be perpetrated against one’s wife. As English treatise writer Sir Matthew Hale explained the common law, “the husband cannot be guilty of a rape committed by himself upon his lawful wife, for by their mutual matrimonial consent and contract the wife hath given up herself in this kind unto her husband, which she cannot retract.”

Feminists uniformly rejected this legally-sanctioned violence of forced sex and maternity. They instead advocated for “voluntary motherhood,” giving the wife the unilateral right to refuse sexual relations, abstaining periodically or permanently unless procreation was desired. There was wide consensus among women reformers on this issue, including the radical free lovers, the feminist suffragists, and conservative moral reformers. “On no question did the feminists agree so clearly as on . . . ‘voluntary motherhood’. . . incorporating both a political critique of the status quo, as involuntary motherhood, and a solution.” “Their priority was women’s right to say no to men.” These women proposed a radical reversal of the entrenched norms of marital power by granting women, and not men, the sole right to dictate the terms of marital sex.

Stanton voiced her strong rejection of this male sexual privilege and identified it as a source of women’s oppression. Writing to Anthony in 1853 about marriage as a key site of subordination, Stanton argued, “man in his lust has regulated long enough this whole question of sexual intercourse. Now let the mother of mankind, whose prerogative it is to set bounds to his indulgence, rouse up and give this whole matter a thorough, fearless examination.” A few years later, she featured forced maternity in her Paper on Marriage directed to a Quaker audience. “Have the best Christian men in this nation ever felt the least compunction of conscience, as they have contemplated, year by year, the drooping form, the pale check, the sunken eye, the joyless, hopeless life of the self-sacrificing wife, the mother of six, eight or ten children? . . . Victims all, to the lust and selfishness of those to whom they looked for care and support – dead, or suffering life, with the excessive cares and anxieties of maternity!” “All things,” she argued, “are inverted, disorganized, so long as the mother of the race is subjected to man—so long as all her holy intuitions of virtue, purity, chastity, are sacrificed to the lust and selfishness of man.”

Other women reformers shared Stanton’s indictment of male lust at women’s expense, including abolitionist and early feminist, Sarah Grimké. In an 1856 essay, Marriage, Grimke expressed her visceral reaction to how man subordinated women to his own passion by the principle of superior rights. Her critique stemmed from first-hand observations of the difficult and successive pregnancies of her sister, Angelina Grimké Weld, and the resulting disability that caused Angelina to abandon public abolition and women’s rights work. “Man seems to feel that Marriage gives him the control of Woman’s person just as the Law gives him the control of her property.” “Has she not been continually forced into a motherhood which she abhorred, because she knew that her children were not the offspring of Love but of Lust? Has she not in unnumbered instances felt in the deepest recesses of her soul, that she was used to minister to Passion, not voluntarily to receive from her husband the chaste expression of his love?” Grimké empathized with the shattered sentimentality of marriage in which women “entered the marriage relation in all purity and innocence expecting to realize completion of their own halfness the rounding out of their own being,” but “too soon discovered that they were unpaid housekeepers and nurses, and still worse, chattels personal to be used and abused at the will of a master.” “How many so called wives,” she challenged, “rise in the morning oppressed with a sense of degradation from the fact that their chastity has been violated, their holiest instincts disregarded, and themselves humbled under an oppressive sense of their own pollution, and that, too, a thousand times harder to bear, because so called husband has been the perpetrator of the unnatural crime.” The solution, she argued was “a right on the part of woman to decide when she shall become a mother, how often and under what circumstances.”

The feminists advocating voluntary motherhood developed a structural attack on forced marital sex looking beyond the individual behavior of husbands to the law and economics of marriage. Their phrase “legalized prostitution” encapsulated the idea of the legally proscribed exchange of sex for money in the dependency of marriage. “Is marriage sacred,” Stanton asked rhetorically, “where a woman consents to live in legalized prostitution! her whole soul revolting at such gross association!” Feminists challenged the basis of marriage which essentially was an economic transaction that rendered women socially and financially dependent upon their husband. The wife, like a street prostitute, was forced to submit to unwanted sex in exchange for monetary support. “If marriage was to rise above ‘legalized prostitution,’” Stanton argued, wives “needed personal freedom more than a legal right to control marital intercourse.” Freedom came only with economic independence and economic profession, providing the necessary alternative to marriage.

Mainstream popular literature picked up on the criticisms of involuntary motherhood, but rejected the feminists’ structural insights. Women’s magazines, novels, and popular guides to women’s health incorporated the feminist ideas of involuntary motherhood as legalized prostitution and agreed that women should control their husbands’ sexual access. However, these prescriptive writers focused on the solution of changing men’s individual behavior by appealing to “manly self-restraint” and men’s own self-interest. They persuaded men that they would be happier if their wives were happier, and wives would be happier if given respite from insistent demands for unwanted sex and pregnancy. This view played into the convention of the husband’s superior power, encouraging his benevolent use of it, rather than adopting the feminist demand for a wife’s prioritized right to make the decision herself.

“Sovereign of Her Own Person”

The most radical idea of the voluntary motherhood movement was a woman’s “right to her own person.” By this, the women’s rights advocates meant the right to bodily autonomy and individual control of their bodies for sex and procreation. They prioritized this right, claiming it as “a subject which lies deeper down into woman’s wrongs than any other.” As free love advocate Mary Gove Nichols wrote, “woman’s one, single, and supreme right and the one which includes all others, is her right to herself.” Stanton corresponded with Nichols in the early 1850s and agreed with her that “the right to control one’s body was the preeminent personal and political right.”

Stanton wrote publicly in 1855 to emphasize the centrality of the issue of sexual autonomy to women’s rights, “the battleground where our independence must be fought and won.” The vast majority of women, she said, regarded the present marital arrangements “with deep and settled disgust.” While rights to vote and hold property were important, “the sacred right of a woman to her own person, to all her God-given powers of body and soul,” was a great social and human right “before which all others sink into utter insignificance.” She focused on the idea that “to the mother of the race, and to her alone, belonged the right to say when a new being should be brought into the world.” Has man, she asked, “in the gratification of his blind passions, ever paused to think whether it was with joy and gladness that she gave up ten or twenty years of the heyday of her existence to all the cares and sufferings of excessive maternity?”

Lucy Stone begged Stanton to address the issue of “a wife’s right to her own body” at the Seventh National Women’s Rights Convention. Stone wrote, “I very much wish that a wife’s right to her own body should be pushed at our next convention. It does seem to me that you are the one to do it.” Stone though, prudish even by Victorian standards and sensitive to public rejection, refused to address the issue herself. Stanton obliged, writing a short letter to the convention, though it arrived too late to be discussed. Stanton called women to “a proper self-respect” and decried the marriage in which a woman accepted “herself as a mere machine, a tool for men’s pleasure.” Elsewhere, she elaborated on what she meant by a woman “owning her own body.” By this she meant “as opposed to the old common law of England, I deny the husband’s right . . . to burden her with the hardships of reproduction. . . I deny man’s right to seek gratification of his sexual nature at the expense of undermining the well being of the woman and her offspring.”

The New York Times attacked this assertion of a woman’s right of self-ownership, dismissing women’s claims of abuse from involuntary motherhood. The paper revealed what it assumed was shocking proposition that “the Woman’s Rights movement leads directly and rapidly in the same direction, viz. to Free Love, that extreme section of it we mean which claims to rest upon the absolute and indefeasible right of woman to equality in all respects with man and to a complete sovereignty over her own person and conduct.” Sarah Grimké responded to the attack by affirmatively embracing the charge: yes, she said, “this exposition of the principles of the Woman’s Rights movement I heartily accept. We do claim the absolute and indefeasible right of woman to an equality in all respects with man and to a complete sovereignty over her own person and conduct.” Human rights, she asserted are universal, not based upon sex, color, capacity or condition, and “none but despots will deny to woman that supreme sovereignty over her own person and conduct which Law concedes to man.” “Yet,” she said, “the Times is horror-struck at the idea of a woman’s claiming ‘A supreme sovereignty over her own person and conduct.’ Is it not time that she should? Has not man proved himself unworthy of the power which he assumes over her person and conduct?’

Stanton “understood a woman’s right to control her person as the foundational right upon which political and economic equality needed to rest if they were to have any value.” Writing to Anthony, she argued, “when we talk of woman’s rights, is not the right to her person, to her happiness, to her life, the first on the list?” She analogized to the slave on the southern plantation presented with the idea of the elective franchise, to which you might get a vacant stare. “The great idea of his right to himself, to his personal dignity, must first take possession of his soul.”

Stanton’s solution was for women to have the sole and absolute right to refuse marital sexual intercourse. This restructured the existing law of irrevocable consent to the marital contract and shifted the privilege of determining sexual relations to women. This was “an intensely gender-specific argument” for a right intended for women only, because they were the ones solely responsible for the physical demands of maternity itself and the caring and raising of children. Stanton, as the mother of seven children, experienced the social reality that imposed the work of raising children exclusively on women. She thus vividly understood “that women needed to have full control over marital intercourse so that they could determine how many children they would raise and when.”

Other feminists agreed with both Stanton’s view of the sovereign right to self-determination and her justification for that unilateral right stemming from women’s exclusive responsibility for bearing and raising children. “The law of motherhood should be entirely under woman’s control, . . . and that woman must first of all be held as having a right to herself.” As Grimké wrote, “surely as upon her alone devolves the necessity of nurturing unto the fullness of life the being within her and after it is born, of nursing and tending it thro’ helpless infancy and capricious childhood, often under the pressure of miserable health, she ought to have the right of controlling all preliminaries.” She described the “burden on woman by the care of many children following in quick succession,” and its resulting “unnatural tug upon her constitution.” She added, “if man had all these burdens to bear, would not he declare that common sense and common justice confer this right upon him.”

In the following decades, Stanton’s speeches and lectures aimed to convince women of their “right to their own person” and the “preservation of their own womanhood.” “Let us remember,” she repeated, “that womanhood is the great fact, wifehood and motherhood its incidents.” Must the heyday of her existence be wholly devoted to the one animal function of bearing children? Shall there by no limit to this but woman’s capacity to endure the fearful strain on her life?” In her “Marriage and Maternity” lecture, Stanton advised women that bearing children was not their sole duty and purpose, as they had been told. “We must educate our daughters,” she said, “first—to regard their own lives and bodies and the laws govern them.” She argued that “the preservation of their own womanhood was the one prime object of their lives.” Instead, she said, “as it is now, we look up to wives and mothers, and down on womanhood. This is wrong.” Stanton said she revered single women like “Susan B. Anthony and [sculptor] Harriet Hosmer who have done great things in the world without having borne children.” She continued “we must educate our girls that they are independent; that in the society of the refined they may be happy; that they may live peaceful, glorious lives, and take high seats in Heaven, without ever seeing a man.”

^***** 

“The Science of Life”

Wide support for voluntary motherhood among women reformers and feminists did not, however, mean that these women endorsed contraception. Methods of birth control were known from ancient Egyptian times with rudimentary condoms, douches, diaphragms, and pessaries available, though many were derived from poisonous substances and incorrect science. Technical advances in 1844 with the patenting of vulcanized rubber allowed mass-production of condoms, and at mid-century advertisements for contraceptives appeared in most mainstream newspapers. Several books on birth control had been written, including utopian Robert Dale Owen’s Moral Physiology (1831), Dr. Charles Knowlton’s Fruits of Philosophy (1832), and Dr. Edward Bliss Foote’s Medical Common Sense (1864). Foote also operated a clinic distributing information and patented devices to his patients until his arrest in 1876. Women’s health advocates began to preach on physiology or the “science of life” informing women of the details of sex, menstruation, and reproduction.

Stanton preached this new sexual physiology to women in her “Marriage and Maternity.” She reported to friends that this “new gospel of fewer children” was “gladly received.” “What radical thoughts I then and there put into their heads as they feel untrammeled, these thoughts are permanently lodged there! That is all I ask.” Her lectures uniquely for women only taught “the laws of life and health,” and advised them “to learn and practice the true laws of generation.” Stanton endorsed the theories of Dr. John Cowan and his book on sexual physiology, The Science of New Life. “I have read Dr. Cowan’s work, and made it my text-book in lectures, ‘to woman alone,’ for several years,” she wrote. Cowan detailed male and female anatomy and the biological functioning of sex and reproduction, believing that “knowledge must precede virtue.” He credited the many legitimate reasons women desired to prevent pregnancies, but cautioned that while “all manner and means are and have been used” to accomplish prevention, most as a rule caused physical or spiritual harm to the individual. He detailed the options for “the prevention of conception” including withdrawal, condoms, sponges, syringes, and the rhythm method. Condoms, he noted were effectual, but not pleasurable to the male. Sponges or rubber barriers, he stated, were widely used, but not reliable because often inserted incorrectly. Syringes with powders were “damaging to the vitality of the part” and unreliable. Cowan’s conclusion was that continence (abstinence) was the only appropriate method to prevent conception.

Audiences, however, questioned Stanton as to the practical realities of accomplishing prevention by this, or any other, means. In San Francisco, as reported by a male journalist who allegedly snuck into the women-only lecture in female disguise, one woman asked, “How can we follow your advice and keep from having children?” Stanton answered on two fronts: structural and personal. First, she said, “woman’s perfect independence is the answer to that query. Woman must at all times be the sovereign of her own person.” When asked a follow up question by a second woman, “What are we to do when men don’t agree with us?” Stanton gave a second suggestion, based on her support of the social purity idea of a single sexual standard and systemic reduction in the sexualization of women. She replied that men could be educated as to voluntary motherhood, that their passions could be controlled, and that women should stop stimulating men’s passions with dress, dance, and fashion with bare arms and bare necks. One lady then “asked a question which hinted at prevention by other than legitimate means.” The paper reported that “Mrs. Stanton promptly replied that such views of the matter were too degrading and disgusting to touch upon, and must be classified in the category of crime alongside infanticide.” Apparently Stanton, or perhaps the reporter, did not want to go on the record as supporting abortion, by then illegal in many states.

Stanton’s personal views on birth control are not clear.  Biographers have concluded that her “writing was ambivalent on the subject of birth control.” “Some indicate that she was ignorant of contemporary methods of contraception, others indicate that she was aware of and approved of birth control, but did not practice it.” The evidence of Stanton’s large family of eight pregnancies (one miscarriage) in seventeen years, and her private frustration with this frequent childbearing, suggests that she did not use birth control or practice abstinence, even with her husband’s lengthy absences from home. As she reminisced in her diary, “I knew no better than to have seven children in quick succession. This was not Stanton’s obedience to her wifely duty, however, but rather an embracing of her own sexuality. “In contrast to many of her contemporaries, Stanton was aware of women’s sexuality, and she agreed with an 1853 phrenological analysis of herself as ‘able to enjoy the connubial relationship in a high degree.’” In another diary entry, she criticized a Walt Whitman poem for ignoring women’s sexuality. “He speaks as if the female must be forced to the creative act, apparently ignorant of the fact that a healthy woman has as much passion as a man, that she needs nothing stronger than the law of attraction to draw her to the male.”

Stanton’s public recommendation of abstinence, rather than birth control, was the common thinking among reformers at the time. Feminists in the nineteenth century opposed birth control as harmful, promiscuous, and contrary to broader demands for women’s empowerment. They feared the promiscuity contraception would facilitate by granting men free license to engage more freely in extramarital sex and prostitution. To separate sex from reproduction did not help women, as it merely allowed men to further indulge their sexual license and family irresponsibility. Contraception also contradicted the systemic goals of the women’s rights movement to empower women generally. While the movement sought freedom from excessive pregnancies and childbearing, it also sought respect and authority for motherhood and freedom from male sexual tyranny. “Abstinence helped women strengthen their ability to say no to their husbands’ sexual demands, . . . while contraception . . .  would have weakened it.” The solution to both the problem of unwanted pregnancies and sexual tyranny was abstinence and a single sexual moral standard restraining both women and men’s sexual impulses. Nineteenth-century feminists “wanted to help women avoid pregnancy for physical or psychological reasons,” but not for the reason of permitting women to “engage freely and often in sexual intercourse” without the possibility of pregnancy.

From a modern perspective, “a principle of voluntary motherhood that rejects the practice of contraception seems so theoretical as to have little real impact.” But as historian Linda Gordon explains, the breakthrough of the voluntary motherhood movement was in its acceptance of women’s sexuality and women’s unilateral right to control it. “To suggest, as these feminists did, that women might have the capacity to be sexual subjects rather than objects, feeling impulses of their own, tended to weaken the claim that the maternal instinct was always dominant.” Voluntary motherhood was the radical theoretical foundation of the right of reproductive control; more specific strategies of birth control and abortion were adopted later as means by which to execute this fundamental right.

In the nineteenth century, however, the public discussion and dissemination of birth control information became illegal when it was banned as obscenity under the 1873 federal Comstock Law. The Comstock Law, named for moral purity crusader Anthony Comstock, prohibited the sale, offer, publication, possession, advertisement, or other distribution of any obscene writing, picture, instrument or drug and any of these intended “for the prevention of conception or procuring abortion.” States passed related “Little Comstock Laws” prohibiting other distribution and manufacturing of contraception and birth control information. In addition to these obscenity laws, medical professionals and moral reformers condemned the “unnatural” and sinful limitation of family size and the “race-suicide” it threatened for the white middle class. Yet people continued to practice family planning by some means, as the average number of children per family declined over the century from 7.04 in 1800 to 3.56 by 1900.

Stanton hinted at her opposition to this ban on discussing birth control. In the early 1880s, while in England visiting her daughter Harriot, Stanton met the free thinker and radical Annie Besant. Besant had been convicted in 1877 of obscenity for publishing Knowlton’s Fruits of Philosophy detailing methods of contraception. The “Knowlton trial” triggered the founding of the Malthusian League in Britain, building on the ideas of Thomas Malthus regarding overpopulation and now promoting birth control to redress the overpopulation and its related poverty and social problems. Stanton seemed to agree with theory in recounting her meeting with Besant in her diary. “My sense of justice was severely tried by all I heard of the persecutions of Mrs. Besant and Mr. Bradlaugh for their publications on the right and duty of parents to limit population.” “Who can contemplate,” she continued, “the sad condition of multitudes of young children in the Old World whose fate is to be brought up in ignorance and vice—a swarming, seething mass which nobody owns—without seeing the need of free discussion of the philosophical principles that underlie these tangle social problems?” Her view stood in contrast to that of her colleague Matilda Joslyn Gage, who in response to the Knowlton trial, condemned Besant’s endorsement of contraception, while supporting the broader concept that the “law of motherhood should be entirely under woman’s control.”

Feminist endorsement of contraception would not come until the early twentieth century, after Stanton’s time. Socialist and nurse Margaret Sanger coined the term “birth control” in 1916 and established a clinic in Brooklyn, New York to provide information about contraception to working-class women. She was arrested and convicted of violating the New York Comstock Law. On appeal, the court upheld the conviction, but found that physicians and pharmacists were exempted by the law, thus permitting medical professionals to distribute birth control information and contraception for “the purposes of preventing disease.” Sanger’s case thus medicalized birth control, a result that practically ended the ban on contraception, while also removing such procreative decisions solely from women’s autonomy.

The Campaign Against Abortion

In the absence of legal and effective contraception, abortion, and even infanticide, were practiced in the nineteenth century. By 1850, there was a demonstrable increase in abortions facilitated by advertisements for abortion medicines and services, and by the growing use of the practice by married couples as birth control. This triggered moral and legal outrage resulting in a public campaign to criminalize abortion that became a “mass political issue in America” in the late 1860s. The campaign led by the male medical profession overtook feminists’ advocacy of voluntary motherhood and indicted women’s attempts to obtain control of procreative decisions.

Stanton joined in at the periphery of this debate, drawn by its attack on women. She did not engage with the moral question of abortion, but instead utilized the public attention to reframe the issues as one of women’s rights more generally. She gravitated to the related, but more shocking issue of infanticide, expressing empathy for women defendants and criticism of a discriminatory legal system that convicted them. The male-dominated abortion debate provided the toehold for Stanton to get an audience for her radical ideas about women’s legal and social equality, questioning the absence of women in the legal process as well as the gendered sexual moral standard. As she had in other contexts, Stanton revealed her aptitude for capitalizing on the media’s attention to keep her agenda of the broader “woman question” front and center.

Abortion had not always been publicly condemned. At common law in America, abortion was legal prior to quickening, around four months when fetal movement can be felt. Abortion was morally tolerated, though publicly invisible, as an “often-regrettable necessity” for poor, young, unmarried women who had been seduced. Early laws prohibited late-term abortions or targeted medical malpractice and poisonous medicines that harmed women. By mid-century, however, abortion had increased as middle-class, married people used abortion as birth control. Abortion became more visible as newspapers ran barely-disguised advertisements for “French” and “Portuguese” medicines (French meaning contraception and Portuguese code for abortion) and physician services to “restore the natural return of menses.” The prevalence of abortion raised it to a public concern, fueled by nativist fears that immigrants would replace white Americans through the birthrate. The medical profession instigated the efforts for legal reform, supported by sensationalist journalism, which produced new laws that criminalized abortion at any time in every state by the turn of the century. This anti-abortion campaign was infused with anti-woman sentiments, fearful of women’s growing social power, and reasserting patriarchal control and women’s maternal submission.

The lobbying effort to criminalize abortion was spearheaded by the medical profession. In 1859, the American Medical Association (AMA) issued a resolution condemning abortion as an “unwarrantable destruction of human life.” The doctors had scientific, ethical, and professional motivations for leading the charge against abortion. Practically, as doctors professionalized, the new “regulars” of male medical school graduates sought to drive out the competing local practitioners, the untrained “irregulars” of female midwives who had monopolized obstetrical and gynecological care.” Women, though, became the targeted evil. Horatio Storer, one of the first male gynecologists and the leading antiabortion crusader of the AMA wrote that “[t]he true wife” does not seek “undue power in public life, . . . undue control in domestic affairs, . . . or privileges not her own.” The AMA’s 1871 Report on Criminal Abortion denounced the married woman who aborted a pregnancy: “She becomes unmindful of the course marked out for her by Providence, she overlooks the duties imposed on her by the marriage contract. She yields to the pleasures—but shrinks from the pains and responsibilities of maternity . . . .” The AMA campaign succeeded in convincing the public and the politicians that abortion, and women, were a threat to the social order and male authority.

The campaign expressly took on the feminists and their claim of reproductive control.  Nineteenth-century feminists did not publicly support abortion, just as they did not endorse legalized birth control. Abortion, like contraception, only increased male sexual license, and threatened physical harm to women from poisonous substances and surgical malpractice. The physicians’’ campaign, however, distorted the women’s rights metaphor of legalized prostitution to claim that they heretically intended that “man’s natural sexual urges were allowed expression in marriage without reproductive consequence.” Dr. H.S. Pomeroy took on Stanton directly in his book, The Ethics of Marriage. “There are lecturers to ‘ladies only’ who profess to be actuated simply by good-will toward their unfortunate sisters, who yet call woman’s highest and holiest privilege by the name of slavery, and a law to protect the family from the first step toward extinct, tyranny.” “There are apostles of woman’s rights,” he continued, who “arouse women to claim privileges now denied them. . . . And there are those who teach that their married sisters may save time and vitality for high and noble pursuits by ‘electing’ how few children shall be born to them.” Storer added that “if each woman were allowed to judge for herself in this matter, her decision upon the abstract question would be too sure to be warped by person considerations, and those of the moment. Woman’s mind is prone to depression, and indeed, to temporary actual derangement, under the stimulus of uterine excitation.” Women were thus mentally incapable of making the procreative decision.

The media supported the physicians’ lobbying campaign, inflamed by sensational journalism. The newspapers published editorials against the “frightfully prevalent” “social evil” of “child murder,” commenting that “the murder of infants is a common thing among American women.” One editorial lamented that “thousands of human beings are thus murdered before they have seen the light of this world.” The papers printed stories recounting the horrific details of women dying from abortions in squalid conditions and exposés on the underground abortion trade in New York City. The remedy, they declared, was in the prohibition and criminalization of abortion. These mainstream papers, however, were complicit in the escalation of the abortion practice as they accepted lucrative abortion advertisements soliciting such business and selling medicinals for abortion. They stopped publishing such ads only when prohibited by law, first by New York state law and then by the federal Comstock anti-obscenity law.

 New York, Stanton’s home state, was at the forefront of this debate and evolution of the law of abortion. Early revisions of code in 1828 and 1845 were designed to protect women from malpractice and criminalize a larger practice of behavior, but practically had little effect due to the high prosecutorial burden of proving beyond a reasonable doubt that a woman was “pregnant” and had the “intent thereby to procure a miscarriage.” The Medical Society of the State of New York renewed legal reform lobbying in 1867, to “arrest this flagrant corruption of morality among women, who ought to be and unquestionably are the conservators of morals and of virtue” and prohibit newspaper ads as “highly detrimental to public health and morals.” In 1868, the New York legislature banned advertisements for any “article or medicine for the prevention of conception or procuring of abortion.” Another law in 1869 made abortion at any time, including prior to quickening, illegal and removed the prosecutors’ burden of proving pregnancy, and revisions in 1872 further strengthen its prohibitions and penalties.

In the midst of this public and legislative frenzy over abortion in New York, Stanton began her new woman’s rights newspaper, the Revolution. Starting in January 1868, the paper was drawn into the fray, designed as it was to engage its readers with all topics of the day. The paper published a few submissions opposing abortion and calling for stricter prohibitions. Its financier George Francis Train registered his disgust of abortion, attacking the “French habits, French customs, poisonous drugs, and a false life, combined with the terrible demoralizing effect of the speculum and the lancet—the one poisoning the system, the other destroying chastity as well as maternity,” which failed to “maintain law and virtue” or “respect our manhood." The Revolution also printed articles from feminist voices reacting to the anti-abortion campaign’s demonization of women. These writers, including Matilda Joslyn Gage, were “highly sympathetic to the reasons why women sought abortions” and placed the moral blame on men who refused to control their sexual demands. “This crime,” Gage wrote, of what the papers called “child murder,” lies at the door of the male sex,” wrote Matilda Joslyn Gage. Another writer pointed to the larger class issues and “antagonism” underlying the abortion problem. “When the conditions of society are so false that mothers kill their own children, the trouble lies deeper down than ‘Restellism.’” “Prohibitory laws and the imprisonments of the Madames Restell do not remedy drunkenness or child murder; they do not touch the case.”

Restellism, the epithet for abortion, derived from the most famous practitioner of abortion from 1836 to 1878, Madame Restell (Ann Lohman). Madame Restell flaunted a very public existence, living in a palatial mansion on Fifth Avenue in New York City and operating her practice out of her home. In addition, she sold products through the newspapers and mails. Lohman was arrested many times, but convicted finally in 1878 following a sting operation by Anthony Comstock. She committed suicide after she lost her appeals.

Stanton’s male co-editor, Parker Pillsbury, also wrote several articles on abortion in the Revolution, revealing his moral opposition but rejecting criminal regulation. Pillsbury’s moral stance against abortion was consistent with his religious belief of perfectionism and his background as a former Congregationalist minister and zealous abolitionist. In the Revolution, he expressed his abhorrence of the “evil” crime of “foeticide” and “killing the unborn,” and his concern over “the frightful increase” in abortion. He attacked those who encouraged the practice of abortion, “that very evil in all its horrible enormity and extent.” He berated those like Madame Restell who profited from abortion, “those who make it a profession and grow enormously rich in the murderous business; and yet walk unblushingly, and ride most magnificently on Broadway in broad day, and receive both the gratitude and gold of those who employ them.”

In another Revolution editorial entitled Quack Medicines, Pillsbury condemned the mainstream and religious newspapers for supporting Restellism by publishing advertisements for abortion and contraceptive medicines. He criticized them for accepting the “advertisements of professional murderers, who commit infanticide for pay,” simply because the advertising patronage paid “far better than any other.” The Revolution, he said, refused to publish “gross personalities and quack advertisements,” though it did print ads for female physicians for services of an “accoucheuse” (midwife) who devoted “special attention to female disease.” Like the other feminist writers in the Revolution, Pillsbury blamed men for the unwanted pregnancies. His proposed solutions were women’s empowerment and foundling hospitals run by the state that would care for the children given up for adoption.

Stanton weighed in briefly in her editorial Infanticide and Prostitution. The short blurb written during the Revolution’s second month of operation responded to the sensationalist attacks on women in the mainstream press, just as the New York legislature considered a restrictive new abortion law. She began by reprinting an excerpt from the New York Tribune in which that paper concluded that “the murder of infants is a common thing among American women.” The Tribune lamented “child murder,” claiming that “the murder of children, either before or after birth, has become so frightfully prevalent that physicians, who have given careful and intelligent study to the subject, have declared that were it not for immigration the white population of the United States would actually fall off!” Stanton also excerpted an article from the New York Sun on the “social evil statistics” of prostitution, showing how she linked together these issues together as related to male licentiousness.

Stanton dismissed the moral and religious outrage directed against women. “Let us no longer weep, whine and pray over all these abominations.” Instead, she cut to the underlying systemic cause of these social concerns. “We believe the cause of all these abuses lies in the degradation of woman.” The only remedy, she said, was “the education and enfranchisement of woman.” Stanton wrote she was not surprised that women “do everything to avoid maternity” because maternity is presented religiously as a curse, and women “through ignorance of the science of life and health find it so.” The blame instead belonged to men. “Strike the chains from your women; for as long as they are slaves to man’s lust, man will be the slave of his own passions.” Stanton called for the remedy of “enlightened conscientiousness” and “for every thinking man” to change things in his own household by facilitating intentional and healthful procreation. Stanton, however, wrote nothing further on the issue. Instead, she became obsessed with the notorious trial of Hester Vaughn, sentenced to death for infanticide. The Vaughn case engaged these questions about the sexual double standard and women’s reproductive control while providing the additional opportunity for Stanton to challenge the greater systemic problems of a legal system that professed to dispense justice for women without women’s participation in the process.

 

The Gender Inequality of Cognitive Household Labor

Allison Daminger, The Cognitive Dimension of Household Labor, American Sociology Rev. (July 2019)

Household labor is commonly defined as a set of physical tasks such as cooking, cleaning, and shopping. Sociologists sometimes reference non-physical activities related to “household management,” but these are typically mentioned in passing, imprecisely defined, or treated as equivalent to physical tasks. Using 70 in-depth interviews with members of 35 couples, this study argues that such tasks are better understood as examples of a unique dimension of housework: cognitive labor. The data demonstrate that cognitive labor entails anticipating needs, identifying options for filling them, making decisions, and monitoring progress. Because such work is taxing but often invisible to both cognitive laborers and their partners, it is a frequent source of conflict for couples. Cognitive labor is also a gendered phenomenon: women in this study do more cognitive labor overall and more of the anticipation and monitoring work in particular. However, male and female participation in decision-making, arguably the cognitive labor component most closely linked to power and influence, is roughly equal. These findings identify and define an overlooked—yet potentially consequential—source of gender inequality at the household level and suggest a new direction for research on the division of household labor.

Book Review Stone's Sex and the Constitution, Comparing Women's Rights & LGBT Movements

Rivka Weill, Women’s and LGBTQ Social Movements and Constitutional Change -- On Geoffrey Stone’s Sex and the Constitution: Sex, Religion, and Law from America’s Origins to the Twenty-First Century, Jerusalem Review of Legal Studies, Forthcoming

This essay reviews Geoffrey Stone’s “Sex and the Constitution: Sex, Religion, and Law from America’s Origins to the Twenty-First Century.” Part I offers a synopsis of the treatise to make it accessible to the general public. Stone’s 600 pages book reviews the regulation of sex in the ancient cultures of the Greeks, Romans, and ancient Hebrews. It later discusses the evolution of the regulation of sex in Christianity and the English common law. Stone then focuses specifically on US regulation of obscenity, contraception, abortion, and same-sex marriage to portray a story of progress with a warning that much of this progress depends on the composition of the Supreme Court. Part II reveals the contribution of Sex and the Constitution to the literature with respect to the ways social movements may bring about constitutional change outside the formal process defined in the Constitution for amendment. Part III offers some critical reflections on the book. In particular, it argues that Stone’s book implicitly asserts great similarities between women’s and LGBTQ movements’ struggles for the recognition that their rights demand constitutional protection. Yet, Stone should have acknowledged more forcefully the major differences between the two struggles. They differ substantially in their opening positions, their agendas for social change, the length of the struggles, the pace of change, and their successes. Some possible explanations are offered for the rather meteoric success of the LGBTQ members in transforming law and society within a short period in comparison to the rather slow pace of change for women. Moreover, while women’s successes assisted the gay rights revolution, some of the advancement in gay rights came at the expense of advancement of women.

How Marriage Continues to Be Gendered in Same-Sex Divorce

Suzanne Kim & Edward Stein, "Gender in the Context of Same-Sex Divorce and Relationship Dissolution" 

We suggest that marriage is likely to remain gendered in a variety of ways in the near term, although how it may continue to be gendered over time is not clear. We focus here on some ways in which gender may continue to play a role in the dissolution of the relationships of same-sex couples in the U.S., specifically with respect to (i) the grounds for divorce, dissolution, and annulment, (ii) the financial aspects of relationship dissolution, (iii) the custody of children, and (iv) the social experience of divorce and relationship dissolution more generally. We draw on existing social scientific and legal research, but because same-sex marriage has only been legal for just over a dozen years and in place across the country for just over two years, many of the questions about gender and
same-sex divorce cannot be answered without more research and the passage of time.