Gender and the Law Prof Blog

Editor: Tracy A. Thomas
University of Akron School of Law

Tuesday, August 13, 2019

Central Park's First Statute of Real (rather than Fictional) Women Redesigned to Include Sojourner Truth with Women's Suffrage Leaders Elizabeth Cady Stanton and Susan B. Anthony

From Press Release:

Today, Monumental Women’s Statue Fund announced a redesigned statue that will honor pioneering women’s rights advocates and will be the first statue depicting real women in the 165-year history of New York City’s Central Park.

The amended design includes Susan B. Anthony, Elizabeth Cady Stanton, and Sojourner Truth.  All three are remarkable and monumental women’s rights pioneers who were New Yorkers and contemporaries. In the amended design, nationally-recognized sculptor Meredith Bergmann shows Anthony, Stanton, and Truth working together in Stanton's home, where it is historically documented they met and spent time together.

The NYC Public Design Commission must review the amended design of the statue, which will be unveiled on The Mall in Central Park on August 26, 2020, the 100th anniversary of the ratification of the 19th amendment, when women constitutionally won the right to vote. Next year is also the 200th anniversary of Susan B. Anthony’s birth.

“Our goal has always been to honor the diverse women in history who fought for equality and justice and who dedicated their lives to the fight for Women's Rights. We want to tell their stories and help create a full and fair historical record of their vast and varied contributions. When the Public Design Commission unanimously approved our previous design with Anthony and Stanton, but required that a scroll with names and quotes of 22 diverse women’s suffrage leaders be removed, we knew we needed to go back to the drawing board and create a new design.  It is fitting that Anthony, Stanton, and Truth stand together in this statue as they often did in life.” said Pam Elam, President of Monumental Women.

Central Park's First Statute of Real Women Redesigned to Include Sojourner Truth

Last year’s unveiling of designs for the first statue in Central Park’s 165-year history that depicts real historic women–a sculpture of Elizabeth Cady Stanton and Susan B. Anthony–was met with mixed reviews: Why didn’t the statue, set to be dedicated in August of 2020, marking the 100th anniversary of nationwide women’s suffrage, include any of the many African-American women who aided in the cause? Today it was announced that a redesigned statue honoring pioneering women’s rights advocates will include Susan B. Anthony, Elizabeth Cady Stanton, and Sojourner Truth, an escaped slave and abolitionist who joined the fight for women’s rights.

August 13, 2019 in Legal History, Pop Culture | Permalink | Comments (0)

Monday, July 29, 2019

Rediscovering the First Woman Judge, Florence Allen

The Cleveland Plain Dealer has some recent articles highlighting Judge Florence Allen and calling for her recognition.  Allen is colloquially known as "the first woman judge" as she was the first woman elected to a trial court of general jurisdiction (Cuyahoga County Court of Common Pleas, Cleveland), the first woman elected to a state supreme court (Ohio 1922), the first woman appointed to a federal appellate court (U.S. Court of Appeals for the Sixth Circuit, 1932), and the first woman shortlisted for the U.S. Supreme Court.

Andrea Simakis, Before RBG, A Cleveland Judge Made History

Andrea Simakis, Women Lawyers, Judges of Ohio "On Fire" to Honor Judge Florence Allen

Allen is the subject of my current book project, "'A Manly Mind': Judge Florence Allen, The First Woman Judge."  The book is an intellectual biography of this famous first, seeking to exploring her ideas, motivations, and jurisprudence.  I've spent two years reviewing the historical and legal archives, and now am writing in earnest.  A shorter journal article summarizing some of the findings from the research and on Allen's life will be forthcoming in the journal of the new Ohio Legal History Project, an initiative of the Ohio State Bar Foundation.  

Florence Allen was an icon of the woman's suffrage movement as both an activist and an advocate.  Her suffrage work led to her inclusion as one of the inaugural members of the Social Justice ParkSocial Justice Park, in Columbus, Ohio.  Allen was a moderate, believing strongly in the nonpartisan nature of the judiciary, tempering her decisions with logic and reason, and searching within the system for a practical solution.  She prided herself on hard work, logic and intellect, and rejected society's limited role for women.  

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July 29, 2019 in Books, Courts, Judges, Legal History, Women lawyers | Permalink | Comments (0)

Podcast: The Constitutional Legacy of Seneca Falls

I enjoyed discussing the history and constitutional relevance of the first woman's rights movement in this We the People Podcast with the National Constitution Center.

The Constitutional Legacy of Seneca Falls (July 2019)

July 19 was the anniversary of the Seneca Falls Convention, the nation’s first women’s rights convention held in Seneca Falls, New York in 1848. This episode explores what happened at the historic convention, and how its legacy shaped the Constitution through the fight for women’s suffrage and the 19th Amendment and, later, landmark gender equality and reproductive rights cases, including Roe v. Wade. Women and law scholars Erika Bachiochi of the Ethics & Public Policy Center and Tracy A. Thomas of the University of Akron School of Law join host Jeffrey Rosen.

My discussion draws on my book, Elizabeth Cady Stanton and the Feminist Foundations of Family Law (NYUP 2016) tracing pioneering women's rights leader Elizabeth Cady Stanton's work in organizing the Seneca Falls Convention and leading the first women's rights movement for over fifty years.

Here is the Declaration of Sentiments waterfall outside the Women's Rights National Park in Seneca Falls, reflecting Stanton's words.

DeclarationWaterfall2015

July 29, 2019 in Abortion, Constitutional, Legal History, Reproductive Rights | Permalink | Comments (0)

Tuesday, July 23, 2019

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?.

 

July 23, 2019 in Abortion, Books, Constitutional, Family, Gender, Legal History | Permalink | Comments (0)

Thursday, July 18, 2019

The Competing State and Federal Strategies for Winning Women's Right to Vote under the 19th Amendment

Lisa Tetrault, Winning the Vote: A Divided Movement Brought About the 19th Amendment, 40 Humanities (Summer 2019)

In 1869, a bold new idea was born. . . .“Woman’s Suffrage by the proposed Sixteenth Amendment is before the nation for consideration,” one newspaper heralded. Demanding their enfranchisement through a constitutional amendment, “women,” another column remarked, “strike out in a new path.” Women had been demanding the vote for some time, but this new approach was extremely far-fetched. ***

 

Although women demanded the vote as far back as the 1840s, they did not call for a federal amendment until after the Civil War, when a new battle over the status of recently emancipated freed people split the nation. What rights should former slaves have, if any? Rejecting most of African Americans’ demands upon freedom, a band of congressmen nevertheless supported freedmen’s demands to vote. They proposed to accomplish this through amending the Constitution.

 

Passing Congress in 1869, the Fifteenth Amendment declared that voting “shall not be denied or abridged . . . on account of race, color, or previous condition of servitude.” When ratified in 1870, the amendment struck down state requirements that voters be “white,” enfranchising black men nationwide. This creation of voters through federal amendment had never before been tried.

 

Congressional passage of the Fifteenth Amendment, however, tore apart the feminist-abolitionist community and split the movement. Often working together in the same prewar coalitions, women’s rights and antislavery advocates regrouped after the Civil War to form the American Equal Rights Association (AERA). The AERA advocated the enfranchisement of both African Americans and women, as twin demands.

 

When the Fifteenth Amendment advanced only one of those goals, Elizabeth Cady Stanton and Susan B. Anthony—leading suffragists—balked. At the group’s 1869 annual convention, the pair refused to support the amendment’s ratification because it omitted women. ***

 

Angrily, Stanton and Anthony bolted from the AERA and formed a new organization, the National Woman Suffrage Association. Stanton and Anthony used their National Association to oppose the Fifteenth Amendment and advocate for their newly conceived idea for a Sixteenth Amendment, granting women’s suffrage.

 

In their eyes, the Fifteenth Amendment had only one redeeming feature: It had nationalized suffrage, shifting voting regulation from the states to the federal government. This meant suffragists no longer had to labor at the state level, attempting to remove the word “male” from the voting qualifications in each and every state—an excruciatingly onerous fight. Now they could focus all their energies on a single citadel, the U.S. Constitution.

 

Not all suffragists agreed with Stanton and Anthony’s constitutional logic, however. Their rivals in the AERA, which included most of its leading membership, countered the pair by forming an opposing American Woman Suffrage Association. Overseen by Lucy Stone—a prominent white reformer and peer of Stanton and Anthony—the American Association not only supported the Fifteenth Amendment, but also insisted the vote must still be won in the individual states. They rejected Stanton and Anthony’s arguments that constitutional authority around voting in the U.S. had been remade. The Fifteenth Amendment had been no more than a postwar exigency, ratified in order to redress the evil legacies of slavery.

July 18, 2019 in Constitutional, Legal History | Permalink | Comments (0)

Wednesday, July 17, 2019

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.

 

July 17, 2019 in Abortion, Books, Family, Legal History | Permalink | Comments (0)

Tuesday, July 16, 2019

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.

July 16, 2019 in Abortion, Books, Constitutional, Family, Legal History, LGBT | Permalink | Comments (0)

Thursday, July 11, 2019

The Best Books on Women's Suffrage

The Best Books on Women's Suffrage

Why don’t more people know about the suffrage movement? It was, after all, the largest political mobilization of women to date. It drew on the time, talent and energy of three generations of women, and yet few Americans could name more than a single suffragist. It is a puzzle to me. I fear one of the reasons is that we don’t know as much as we should about the history of American women.

 

And it’s not for lack of trying. There were multiple early histories of the suffrage movement—attempts to cement its significance in American history—written by the suffragists themselves. But it didn’t work. By the time you get to World War II, what women had gone through to get the vote was forgotten, in the way that women’s contributions are so often marginalized.

 

The centennial of the Nineteenth Amendment seems like a good chance to rectify that. What I’m hoping is that the centennial will prompt people to think: ‘Why don’t I know more about the suffrage movement? Maybe I’d like to learn a little bit more—and maybe I’ll read that new book by Susan Ware!’

July 11, 2019 in Books, Constitutional, Legal History | Permalink | Comments (1)

Monday, June 24, 2019

Why do we Blame Women for Prohibition?

Mark Lawrence Schrad, Why Do we Blame Women for Prohibition?

On January 16, 1919—the 18th Amendment was ratified, enshrining alcohol prohibition in the U.S. Constitution. And for the past hundred years, we’ve largely blamed women for that. Why?

 

With the obvious exception of the women’s rights movement—from suffragism to #MeToo—perhaps no other social movement in American history is as synonymous with women as temperance, and none is as vilified. Histories dismiss prohibition derisively as a “pseudo-reform ... carried about America by the rural-evangelical virus,” and a “wrongheaded social policy waged by puritanical zealots of a bygone Victorian era.” We describe prohibitionists in the same way we talk about Al Qaeda or ISIS: They were “ruthless” “extremists,” “deeply antidemocratic” “fanatics and fools,” who posed a “threat to individual freedoms.” These evildoers are almost universally understood to be women.

 

The standard trope back in the 1920s, when prohibition was in full force, was that the policy was “put over while the boys were away” fighting World War I—if only the men had been home, prohibition would have been avoided. Surprisingly, this gendered conspiracy theory has endured, despite being completely unfounded. There was no popular referendum on 18th Amendment, and most women couldn’t vote anyway since, chronologically, the 18th Amendment came before the suffragist 19th Amendment. (A handful of western states granted women full voting rights before the 19th Amendment.) The only woman who voted for the 18th Amendment was Jeannette Rankin of Montana, the country’s first—and at that time, only—congresswoman. In 1918, hers was but one of the bipartisan supermajority of 282 yeas (to 128 nays) in the House that passed the prohibition amendment. In the all-male Senate, the vote to submit the amendment to the states for ratification was even more lopsided: 65-20.

June 24, 2019 in Constitutional, Legal History | Permalink | Comments (0)

Tuesday, June 18, 2019

Register Now Center for Constitutional Law Conference on the 19th Amendment at 100: From the Vote to Gender Equality

Register now for the upcoming conference sponsored by the Center for Constitutional Law at Akron: The 19th Amendment at 100: From the Vote to Gender Equality

The conference examines both historic and legal contexts, exploring the advocacy for the 19th Amendment as well as residual legal problems with voting and women's public role continuing up to present day.  It explores issues of history, politics, voting, and public participation and the way in which gender was implicated in all.

Check out the terrific list of speakers here featuring law scholars and historians.

Women's suffrage movement in Ohio

 

June 18, 2019 in Conferences, Constitutional, Legal History | Permalink | Comments (0)

Friday, June 14, 2019

Connecticut Passes Most Generous Family Leave in the US

Connecticut Passes Most Generous Paid Family Leave in the U.S.

Connecticut is poised to become the seventh state in the U.S. to provide paid time off to new parents and caregivers, adding further fuel to paid family leave as an issue in the 2020 elections.

 

Democratic governor Ned Lamont plans to sign the bill “ASAP,” according to a spokeswoman. When he does, Connecticut will join New York and New Jersey in offering the benefit, effectively making the New York metropolitan area a paid family leave zone for new parents.

 

If signed, then starting in 2021, workers in Connecticut would get 12 weeks off to care for a new baby, a seriously ill family member or loved one or to deal with their own illness. The benefit will be funded by a payroll tax on workers of 0.5 percent. Benefits will cover 95 percent of low-wage workers’ pay up to $900 a week, the most generous level of wage replacement in the country. New York currently offers 55 percent wage replacement, increasing to 66 percent when its policy is fully phased in.***

 

The new law adds fuel to the growing momentum behind paid family leave. Since 2016, three other states and Washington, D.C., have passed paid leave. And another bill is moving forward in Oregon as well.

 

June 14, 2019 in Equal Employment, Family, Legal History | Permalink | Comments (0)

Wednesday, June 5, 2019

The 19th Amendment: A Reading List

History of Woman Suffrage (six volumes), available on Project Gutenberg

Tina Cassidy, Mr. President, How Long Must We Wait?  Alice Paul, Woodrow Wilson, and the Fight for the Right to Vote (Simon & Schuster 2019)

J. Kevin Corder & Christina Wolbrecht, Counting Women's Ballots(Cambridge 2016)

Lynda Dodd, Sisterhood of Struggle: Leadership and Strategy in teh Campaign for the Nineteenth Amendment, in Feminist Legal History (Tracy A. Thomas & Tracey Jean Boisseau, eds. 2011)

Ellen Carol DuBois, Outgrowing the Compact of the Fathers: Equal Rights, Woman Suffrage, and the United States Constitution, 1820-1878, in 74 J. Amer. History 836 (1987).

Ellen Carol DuBois, Feminism and Suffrage: The Emergence of an Independent Women's Movement in America, 1848-1869 (1978) 

Ellen Carol DuBois,  Suffrage: Women's Long Struggle for the Vote (Simon and Schuster forthcoming Feb. 2020)

Ann Gordon, ed., African American Women and the Vote, 1837-1965 (U Mass Press 1997)

Lauren Free, Suffrage Reconstructed: Gender, Race and Voting Rights in the Civil War Era (2015)

Aileen S. Kraditor, The Ideas of the Woman Suffrage Movement, 1890-1920 (1965) 

W. William Hodes, Women and the Constitution: Some Legal History and a New Approach to the Nineteenth
Amendment, 25 Rutgers L. Rev. 26  (1970)

JoEllen Lind, Dominance and Democracy: The Legacy of Woman Suffrage for the Voting Right, 5 UCLA Women's L. J. 113 (1994)

Holly McCammon & Lee Ann Banaszek, eds., 100 Years of the 19th Amendment: An Appraisal of Women's Political Activism (Oxford Press 2018)

Corrine McConnaughy, The Woman Suffrage Movement in America: A Reassessment (Cambridge 2013)

Reva Siegel, She the People: The Nineteenth Amendment, Sex Equality, and Federalism, 115 Harv. L. Rev. 847 (2002)

Rosalyn Terborg-Penn, African American Women in the Struggle for the Vote: 1850-1920  (1998)

Lisa Tetrault, The Myth of Seneca Falls: Memory and the Women's Suffrage Movement, 1848-1898 (2014)

Tracy Thomas, More Than the Vote: The Nineteenth Amendment as Proxy for Gender Equality, Stanford J. Civil Rights & Civil Liberties (forthcoming)

Marjorie Spruill Wheeler, ed. One Woman, One Vote: Rediscovering the Woman Suffrage Movement (1995) (many excellent contributions inside this collection)

United States v. Susan B. Anthony, 11 Blatchford 200, 202 (1873)

Sally Roesch Wagner, ed. The Women's Suffrage Movement (2019)

Elaine Weiss, The Woman's Hour: The Great Fight to Win the Vote (2018) 

Adam Winkler, A Revolution Too Soon: Women Suffragists and the Living Constitution, 76 NYU L Rev.  1456 (2001)

 

June 5, 2019 in Books, Constitutional, Legal History, Scholarship | Permalink | Comments (0)

Reflection and Analysis on the 100th Anniversary of the 19th Amendment

Many articles out yesterday on the 100th Anniversary of Congress's passage of the 19th Amendment.  Ratification by the states came in August 2020, so we will be celebrating the 100th Anniversary for the next year with more history and analysis to come.

The Library of Congresss has this new exhibit: Shall Not be Denied

The Atlantic started a series of articles on the 19th Amendment.  Votes for Women: A Century of Suffrage

Emma Green, The Epic Political Battle Over the Legacy of the Suffragettes

Adrienne LaFrance, The "Undesirable Militants" Behind the 19th Amendment

Kimberly Hamlin, NEH, The Forgotten Suffragists

Kimberly Hamlin, Wash Post How Racism Almost Killed Women's Right to Vote

Tracy Thomas, More Than the Vote More Than the Vote: The 19th Amendment as Proxy for Gender Equality, Stanford J. Civil Rgt. & Civil Liberties (forthcoming)

Tracy Thomas, Speech, The 19th Amendment: From the Vote to ERA

The Center for Constitutional Law at the University of Akron School of Law will sponsor a conference on the 19th Amendment this fall.  Registration and information on speakers is here.

June 5, 2019 in Constitutional, Legal History | Permalink | Comments (0)

Tuesday, June 4, 2019

Abolishing Juries of Matrons in England, Used to Secure Reprieves for Pregnant Women Sentenced to Death

Kevin Crosby, Abolishing Juries of Matrons, Oxford J. Legal Studies (Dec. 2018)

This article explores the last 50 years of the jury of matrons, a special type of jury used in England and Wales until the middle of the 20th century to secure reprieves for pregnant women sentenced to death. Despite claims that the jury of matrons had fallen out of use by the middle of the Victorian era, such juries were used in over 10% of cases in which women were sentenced to death during the first three decades of the 20th century. Exploring the circumstances in which the jury of matrons was abolished in 1931 can help us see how various important parts of the contemporary criminal justice system of England and Wales developed. In particular, it allows us to see in greater detail how ideas of the jury and of capital punishment were changing at this time, and how important political networks were in securing legislative reforms.

June 4, 2019 in Legal History, Pregnancy | Permalink | Comments (0)

Friday, May 17, 2019

Video with Soledad O'Brien, The 19th Amendment: Then and Now

Soledad O'Brien, 19th Amendment: Then and Now

The National Archives is launching a new exhibit, “Rightfully Hers,” to spotlight a century of political struggle by suffragists, including Susan B. Anthony and Elizabeth Cady Stanton. The 19th Amendment was ratified in 1920, but what many don’t know is that it didn’t give all women the right to vote. Soledad is joined by three historians – Ann Gordon, Marcia Chatelain, and Maggie Blackhawk – for a discussion about the 19th Amendment. 

May 17, 2019 in Constitutional, Legal History | Permalink | Comments (0)

Thursday, May 16, 2019

Why the Supreme Court Didn't Overturn Roe in 1992, Even Though it Had the Votes

Marcia Coyle, The Justices Had 5 Votes to Overturn Roe in 1992. Why That Didn't Happen, Natl L. J.

In 1992, anti-abortion groups thought they had a winning case in defense of a restrictive Pennsylvania state law. There appeared to be five votes on the U.S. Supreme Court to overrule the landmark decision Roe v. Wade, but that did not happen. As Alabama and Missouri lawmakers adopt strict anti-abortion laws, and predict successful outcomes at the high court, history provides some lessons: Never bet on what occurs behind the high court’s closed conference doors.

 

After oral arguments in Planned Parenthood of S.E. Pennsylvania v. Casey, Justices Harry Blackmun and John Paul Stevens believed the 1973 ruling in Roe was doomed.

 

Stevens, writing in his newly published book, “The Making of a Justice,” said the justices, except for him and Blackmun, agreed the U.S. Court of Appeals for the Third Circuit correctly upheld all of the challenged abortion restrictions—save for one, which required a married woman to certify she had notified her husband of her intent to have an abortion.

 

The Casey case, which affirmed Roe’s central holding, is getting renewed attention today for the standard the decision set for determining whether a state law posed an “undue burden” on a woman’s right to get an abortion. The justices are weighing several abortion-related challenges, and separately, new laws passed by Alabama and other Republican-led states could tee up direct challenges to Roe in the coming months.

 

Several new books, including the one from Stevens, offer a glimpse behind the scenes at how the Pennsylvania case was resolved and why caution is warranted in predicting the outcome in the most contentious cases.

 

“Harry and I both assumed that the result [in Casey] would be explained in an opinion overruling Roe v. Wade,” Stevens wrote in his autobiography, published this week.

 

In fact, at the justices’ private conference, Chief Justice William Rehnquist counted five votes to reverse Roe, and he assigned the court’s opinion to himself, according to journalist Evan Thomas in his new book, “First,” a biography of Sandra Day O’Connor.

May 16, 2019 in Abortion, Legal History, Reproductive Rights, SCOTUS | Permalink | Comments (0)

Tuesday, April 30, 2019

More than the Vote: The 19th Amendment as a Proxy for Gender Equality

My latest article, More than the Vote: The Nineteenth Amendment as Proxy for Gender Equality, forthcoming in a symposium edition of the Stanford Journal of Civil Rights and Civil Liberties along with articles by Felice Batlan and Lisa Tetrault.

The original idea behind the Nineteenth Amendment was never just about the vote. Instead, the first women's rights movement 175 years ago, like the modern movement for the Equal Rights Amendment, sought comprehensive equality for women in all avenues of life. The constitutional text for women’s full equality and emancipation has changed over the centuries; first embodied in the grant of the vote as a proxy for structural change, and now incorporated into the demand for “equal rights.” Yet women have been consistent over time in understanding the radical idea that systems of governance, family, industry, and church need dismantling and reconstructing in order to support women’s equality and emancipation.

This paper first details the origins of women’s political demand for the vote as part of a comprehensive social reform. It then discusses the four strands of the comprehensive early women’s rights agenda for gender equality focused on the political state, domestic family, economic industry, and religious church. Finally, it connects the suffrage activism with demands for an equal rights amendment to realize the full civil rights of equality envisioned by and for women.

This long view of women’s rights shows that the movement was not solely about suffrage, but that the vote stood as a shorthand for a complete revolution of the interlocking systems supporting women’s oppression and denying women equal rights. The legal history illustrates that “women’s rights” has always been a multiple issue, multiple systems platform, even as certain issues like suffrage or abortion have been isolated in the dominant public discourse, often driven there by opponents of gender equality. Appreciating the context and constitutional history of the Nineteenth Amendment supports a more robust understanding of constitutional guarantees of gender equality today, supporting interpretations of “equal protection” under the Fourteenth Amendment to encompass the full array of public and private rights.

April 30, 2019 in Constitutional, Family, Legal History, Scholarship | Permalink | Comments (0)

Monday, April 1, 2019

Remembering the History and Mythology of Seneca Falls and Women's First Demand for the Vote

Lisa Tetrault, Fight by Remembering: The Making of Seneca Falls, Ms.

The Nineteenth Amendment to the U.S. Constitution was finally ratified on August 18, 1920. . . .

 

Emphasizing the long struggle that had culminated in this moment, newspapers heralded the so-called Anthony Amendment “as a living monument to its dead framer, Susan B. Anthony.” History was invoked again and again.

 

The Anthony Amendment, as it remains known today, was actually written by another activist, Anthony’s close friend Elizabeth Cady Stanton. Anthony had not even been at the famed 1848 meeting in Seneca Falls. Yet newspapers and celebrants alike constantly placed her there. Anthony had not joined the cause of suffrage until a full three years later, in 1851, when she met Stanton, who recruited her.

 

Women had not even won the right to vote on that historic day in August 1920. The amendment stipulated in full that “the right of citizens of the United States to vote shall not be denied or abridged by the United States or by any State on account of sex.” Those 28 words failed to prohibit other forms of discriminatory practices, such as poll taxes and literacy tests, which were then law in several states across the country. Together, with outright violent intimidation and targeted administration, those legal prohibitions continued to bar from the polls many women of color. When these women came to the leading suffrage organizations asking for help in securing voting rights, white women turned them away. The vote, a fight begun by Anthony in 1848, it was said, had been won.

 

As we ponder how to commemorate this 2020 centennial moment, it behooves us to attend to the memories that suffragists themselves handed down. We must interrogate how and why celebrants in 1920 so assuredly placed Anthony at Seneca Falls, even though she had not been there, and why they so confidently used Seneca Falls as the movement’s beginning, when the movement actually had no singular point of departure. When we pull at that thread and ask how this story came to be—not the facts of the 1848 convention itself, but the story about that convention, along with the lessons that inhered within it—we unravel something that we were not meant to see: history-telling as an important form of activism.

 

The reporters were absolutely right—history mattered—but not in ways that they fully grasped. They missed how, in the aftermath of the American Civil War, Elizabeth Cady Stanton and Susan B. Anthony had invented this Seneca Falls origin story in an effort to shape a postwar suffrage campaign. They missed how memory itself had played a critical role in the long fight for the vote.

April 1, 2019 in Constitutional, Legal History | Permalink | Comments (0)

The History of Sex Discrimination in Public Accommodations

Elizabeth Sepper & Deborah Dinner, Sex in Public, 129 Yale L. J. (forthcoming)

This Article recounts the first history of sex in public accommodations law—a history essential to debates that rage today over gender and sexuality in public. Just fifty years ago, not only sexual minorities but also cisgender women were the subject of discrimination in public. Restaurants and bars displayed “men-only” signs. Women held secondary-status in civic organizations, like Rotary and Jaycees, and were excluded altogether from many professional bodies, like press clubs. Sports—from the Little League to the golf club—kept girls and women from achieving athletic excellence. Insurance companies and financial institutions subsumed married women’s identities within those of their husbands. Over the course of the 1970s, the feminist movement protested and litigated against sex discrimination in public accommodations. They secured state laws opening up commerce and leisure for “full and equal enjoyment” by both sexes. At the time “sex” was added to state public accommodations laws, feminists, their opponents, and government actors understood sex equality in public to signify more than equal access to the public sphere. It also implicated freedom from the regulation of sexuality and gender performance and held the potential to transform institutions central to dominant masculinity, like baseball fields and bathrooms. This history informs the interpretation of public accommodations laws in controversies from same-sex couples’ wedding cakes to transgender people’s restroom access.

April 1, 2019 in Constitutional, Gender, Legal History | Permalink | Comments (0)

Monday, March 11, 2019

Illinois Proposes Progressive Reproductive Rights Law

Illinois Democrats Propose Laws Expanding Abortion Access--Including Repeal of Parental Notification for Minors, Chic. Trib.

llinois HouseDemocrats have introduced two measures that would expand abortion access in the state, including a repeal of parental notification requirements in cases involving minors.

 

The proposed legislation filed Wednesday follows Democratic Gov. J.B. Pritzker’s pledge last month to make Illinois “the most progressive state in the nation when it comes to standing up for women’s reproductive rights.”

 

One bill, dubbed the Reproductive Health Act, would repeal the state’s so-called partial-birth abortion ban, which placed restrictions on the procedure later in pregnancy. In addition, the act would require private insurance plans in Illinois to cover abortions the same as contraception, fertility and maternity care, as well as allow advanced-practice nurses to perform abortions.

 

The bill also would abolish abortion legislation adopted in 1975, though most of those provisions already have been blocked by the courts, including criminal penalties for physicians who perform abortions.***

 

The second bill, which would repeal the state’s parental notice law, was sponsored by Rep. Emanuel “Chris” Welch, D-Hillside. Parental notification requirements were passed in 1995 but blocked by the courts until about five years ago.

 

Illinois law currently mandates that minors notify a parent, grandparent, a stepparent who lives in the home or a legal guardian before having an abortion. A minor has the legal right to request a waiver of parental notice, a process called judicial bypass, which is granted if a judge deems the minor mature and well-informed, or finds that notification wouldn’t be in her best interest.

 

Abortion rights supporters say that places an unfair burden on minors with difficult family situations and could prove dangerous if a parent is abusive.

Legislation Would Greatly Expand Reproductive Rights in Illinois

A bill overhauling Illinois’ abortion law and replacing it with a more liberal version has wide Democratic support in the House.

 

The Reproductive Health Act, proposed by Rep. Kelly Cassidy, repeals the current law dictating abortion policies in the prairie state and replaces it with policies to “protect individual decision-making.”***

 

This would expand a law signed by former Gov. Bruce Rauner, which allowed tax dollars to be spent on abortion procedures through Illinois’ Medicaid and state employee health insurance programs.

 

Soon after passage, that legislation was challenged in court by attorneys with the Thomas More Society. It filed documents with the State Supreme Court in December 2018 asking the justices to take up the case.

 

Cassidy’s measure additionally specifies that “a fertilized egg, embryo or fetus does not have independent rights.” It mandates that the state cannot infringe upon the expanded rights this legislation grants women and creates an avenue for legal action.

March 11, 2019 in Abortion, Healthcare, Legal History | Permalink | Comments (0)