Gender and the Law Blog

How the 19th Century Comstock Obscenity Law a the Key to the Abortion Fight

Emily Bazelon, NYT, How a 150-Year Old Law Against Lewdness Became a Key to the Abortion Fight

Anthony Comstock, a 19th-century crusader against sexual liberty, was mocked as a prude in his own time, but wielded real power. He persuaded Congress in 1873 to pass the Comstock Act, written by and named for him, making it a federal crime to send or deliver “obscene, lewd or lascivious” material through the mail or by other carriers, specifically including items used for abortion or birth control.

By the 1960s, the Comstock Act had fallen out of use — narrowed by court rulings, partly gutted by congressional repeals — and it was made an unconstitutional relic by the Supreme Court’s decision in 1973 in Roe v. Wade, recognizing a national right to abortion. But it stayed on the books.

Now, Comstock is back, once more being wielded as a weapon by social conservatives. Their arguments use the language of the act to target the mailing of abortion pills, and they are pushing judges and the Biden administration to reopen seemingly long-settled questions.

NYT, What to Know About the Comstock Act

The Comstock Act’s definition of what was lewd material would be “radically unfamiliar” to people living today, according to Mary Ziegler, professor of law at University of California, Davis. Examples she cited included “somebody writing a letter to somebody asking them for a date if they weren’t married,” and “somebody mentioning the existence of an abortion in a newspaper.”

“The early Comstock Act enforcement is extraordinarily broad, and gets broader and broader,” Professor Ziegler said.

I have written some about the origins of the Comstock law: See Tracy Thomas, Elizabeth Cady Stanton and the Feminist Foundations of Family Law 91, 174-75 (NYU Press 2016); Tracy Thomas, Misappropriating Women's History in the Law and Politics of Abortion, 36 Seattle L. Rev. 1 (2012).

See also Gender & the Law Blog, Siegel and Ziegler on SCOTUS, Mifepristone, and the 19th Century Comstock Act

For a fictionalized story of the crusader Anthony Comstock and feminist activist Elizabeth Cady Stanton, see Marge Piercy, Sex Wars: A Novel of Gilded Age New York

Senate Will Vote on Equal Rights Amendment This Week, 100 Years After it was First Introduced

Wash Post, Schumer Announces Senate Will Vote on the Equal Rights Amendment This Week

The Senate will vote on the Equal Rights Amendment this week — 100 years after it was first introduced in Congress — Senate Majority Leader Charles E. Schumer said Monday.

Schumer, speaking at Hunter College in New York, argued that the Supreme Court’s decision to overturn Roe v. Wade and efforts to limit access to the abortion pill mifepristone, as well as state-level actions to roll back women’s rights, have made the ERA and its protections more critical than ever.

“In this ominous hour of American history, the Equal Rights Amendment has never been as necessary and urgent as it is today,” Schumer (D-N.Y.) said in a statement Monday.

The proposed amendment to the U.S. Constitution would guarantee equal rights under the law regardless of sex — meaning the Constitution would clearly state that women have equal rights as men. While the amendment was introduced in Congress in 1923 by leaders of the suffrage movement, it only passed in March 1972.

Ms, Ahead of the First ERA Senate Vote in 40 Years, a Nationwide Petition Launches

Senate Majority Leader Chuck Schumer (D-N.Y.) just announced the first vote on the Equal Rights Amendment in the Senate in 40 years.

“The founding document has never been interpreted to guarantee that the rights of women and the rights of men as a class are simply equal,” said Schumer on Monday at a press conference at Hunter College in New York City. “That’s why I am calling for a vote on the Equal Rights Amendment.” The senator said the vote will happen “this week,” with floor debate on Wednesday and a vote on Thursday.

For more on the history of the ERA, see Tracy Thomas & TJ Boisseau, After Suffrage Comes Equal Rights? ERA as the Next Logical Step, in 100 Years of the Nineteenth Amendment (Holly McCammon & Lee Ann Banaszak, eds. Oxford Press 2018).

Siegel and Ziegler on SCOTUS, Mifepristone, and the 19th Century Comstock Act

Reva Siegel & Mary Ziegler, Our Victorian Supreme Court, Slate

The fate of mifepristone, a drug used in more than half of abortions in the United States, will now be decided by the same conservative justices who reversed Roe v. Wade, ending Americans’ right to legal abortion after nearly half a century of access. In its ruling on the mifepristone case last week, the 5^th Circuit offered the Supreme Court an outline for a faux compromise: the divided three-justice panel did not revoke the original approval of mifepristone as Judge Matthew Kacsmaryk had (though the appeals court seemed open to doing so at a later stage of the litigation). Instead, the 5^th Circuit proposed bringing back all kinds of limits and restrictions on the drug that haven’t been in effect since 2016: limiting its use to the first seven weeks of pregnancy (instead of 10 weeks) and requiring three in-person doctor visits instead of a telehealth consultation.

The kicker, though, was the 5^th Circuit’s deployment of the Comstock Act, the 19^th-century anti-vice law that has quickly become a centerpiece of anti-abortion attacks. While the court didn’t reach a definitive conclusion, it hinted that the Comstock Act makes it a crime to mail every drug or device intended or adapted for abortion.

The mifepristone case will reveal the true commitments of the conservative Supreme Court justices who reversed Roe in Dobbs v. Jackson Women’s Health Services. In that decision, the conservative justices claimed to be returning the abortion issue to the people, but was their talk of democracy just an excuse for supporting abortion bans? Will they now go further than Dobbs’ cherry-picked history by reviving Victorian laws that women had no voice in enacting in order to continue restricting abortion access?

Challenging Dobbs' Faulty Originalist History

Miranda McGowan, The Democratic Deficit of Dobbs, Loyola U. Chicago L.J. (forthcoming 2023). 

Overturning the fifty-year old constitutional right to abortion, Dobbs v. Jackson Women’s Health Organization wrapped itself in the mantle of the rule of law. The Dobbs Court claimed that Roe and Casey had lawlessly departed from the Court’s established history and tradition test for determining whether an unenumerated right is fundamental and protected by the Constitution. The actual history and tradition test, Dobbs said, only protects a claimed right as fundamental if positive law had affirmatively protected it when the Fourteenth Amendment was ratified. Seeing only abortion restrictions in the relevant time period, Dobbs concluded that the right to abortion is not a fundamental right.

Rule of law values, however, condemn rather than justify Dobbs’s method and holding. Dobbs turns on an act of judicial discretion, one it neither acknowledges nor justifies. This Article reveals that, since the 1960s, the Court has relied upon least three versions of the history and tradition test for identifying fundamental rights. Dobbs created a fourth overtly originalist test that dates back only to the 2010 Second Amendment incorporation case, McDonald v. City of Chicago. The original and most established version from Griswold v. Connecticut, however, is dynamic, not originalist: this test draws on recent precedents as much as longer-standing legal traditions and acknowledges that any new fundamental right creates a precedent for future fundamental rights claims.

Stripped of its rule of law veneer, Dobbs can only justify its originalist methods and result by reference to the originalist, normative justification of popular sovereignty. But on that ground, too, Dobbs fails. Dobbs’s originalist history and tradition approach is fundamentally undemocratic and at war with the ideal of popular sovereignty. This Article demonstrates that the history surrounding women and abortion in the nineteenth century makes any popular sovereignty justification for Dobbs’s originalism impossible—as well as anachronistic and incoherent. The positive law protections for abortion or contraception that Dobbs demands never would have existed in the nineteenth century for reasons having nothing to do with “the people’s” views on abortion. Robust social norms about gender and sexuality guaranteed both women and men’s quiescence to the mid-nineteenth century wave of abortion restrictions. Without legal penalty, “the people,” in fact, obtained abortions and used contraceptives throughout the nineteenth century. Dobbs’s originalist error cannot remain confined to abortion if its methods are applied consistently. The Court claimed that Dobbs does not portend a reversal of other fundamental rights cases. If true, that fact condemns Dobbs as a selective application of its supposed premise—which is to say as a political act of judicial hypocrisy. Dobbs’s methods put contraceptive access right on the chopping block.

h/t Legal Theory Blog

How the History and Tradition Test of Dobbs Perpetuates Inequality

Reva Siegel, How "History and Tradition" Perpetuates Inequality: Dobbs on Abortion's Nineteenth-Century Criminalization, 60 Houston L. Rev. (2023)

In this Commentary, I show how the tradition-entrenching methods the Court employed to decide New York State Rifle & Pistol Ass’n, Inc. v. Bruen and Dobbs v. Jackson Women’s Health Organization intensify the gender biases of a constitutional order that for the majority of its existence denied women a voice in lawmaking and restricted women’s roles. The tradition entrenching methods the Court employed to decide Bruen and Dobbs elevate the significance of laws adopted at a time when women and people of color were judged unfit to participate and treated accordingly by constitutional law, common law, and positive law. The methods the Court employs are gendered in the simple sense that they tie the Constitution’s meaning to lawmaking from which women were excluded and in the deeper sense that the turn to the past provides the Court resources for expressing identity and value drawn from a culture whose laws and mores were more hierarchical than our own.

Sampling their recent opinions, Part II of this Commentary shows that the conservative Justices have repudiated past practices when those practices expressed racism or nativism to which the Justices objected. Yet, Part III of this Commentary shows that in Dobbs the conservative Justices embraced past practices as the nation’s history and tradition, counting abortion bans enacted with the support of the nineteenth-century anti-abortion campaign without scrutinizing evidence that the campaign mixed arguments for protecting unborn life with arguments that banning abortion would prevent ethnic replacement and would enforce wives’ marital and maternal roles. In Part IV, I suggest that Justice Alito might have refused to defer to prejudice of the past as he did in Espinoza v. Montana Department of Revenue if he saw religious liberty, rather than abortion rights, at stake.

There are several reasons for revisiting the claims about abortion, history, and tradition on which the Dobbs decision rests. Even if the Supreme Court itself never acknowledges Dobbs’s selective and inaccurate account of the historical record, as it acknowledged historical errors of Bowers v. Hardwick in Lawrence v. Texas, there is value in recognizing that the Court’s claims about the past have a politics. In demonstrating that the Court selectively defers to the past, this Commentary shows how the Court’s history-and-traditions method provides new justifications for enforcing old forms of status inequality. This Commentary builds the historical record critical to debates over the criminalization of abortion in state courts and legislatures. And it contributes to Professor Melissa Murray’s remarkable and wide ranging account of how the jurisprudence of Bruen and Dobbs is gendered: Children of Men: The Roberts Court’s Jurisprudence of Masculinity.

Book Review: Queer Career--Sexuality and Work in Modern America

Guardian, "Work is About Belonging": LGBTQ+ People's History in the Workplace

In a new book, historian Margot Canaday studies the neglected history of queer people in American workplaces

There has been scant attention paid to queer people in the workplace, argues historian Margot Canaday in her fascinating new book Queer Career: Sexuality and Work in Modern America. “Queer people are one of the largest, but least studied, minority groups in the workforce,” Canaday said while speaking to the Guardian about her book.

According to her book, straight historians have tended to ignore the experiences of LGBTQ+ people in the workplace and queer researchers have focused on other aspects of community life, assuming that workplaces were uninteresting, because they weren’t places where LGBTQ+ were able to reveal their true identities. “There has been an assumption that the workplace has been a straight place that was not so revelatory for historians,” Canaday told me.

Canaday’s belief is that the conventional wisdom is wrong – in fact, the history of queer identities in the workplace has been much more complex and fascinating than previously assumed. “I think for all of us – queer or straight – work is about belonging and identity,” Canaday said. “But there are also things that are unique about work for queer people. For instance, it was a way gay people found other gay people. Or for folks who are gender non-conforming, there’s a way that work affirms that isn’t available anywhere else.”

Working off her hunch, as well as a desire to write a queer history that did not marginalize women, Canaday got to work interviewing queer-identified people who had participated in the labor force as far back as the 1950s.

Book Review, The Visibility Trap, Reviewing Anna Lvovsky's "Vice Patrol"

Kate Redburn, The Visibility Trap, 89 University of Chicago Law Review 1515 (2022)

Transgender people in the United States are under attack. From municipal policing to state legislation and federal administrative law, trans people face well-organized efforts to regulate non-normative gender identities out of existence. Within the transgender movement - and the broader LGBT legal movement of which it is a part - much of the debate over how to respond to apparent backlash turns on visibility politics. Some advocates herald visibility as the path to social justice, arguing that cultural representation that accurately portrays transgender lives will sway public opinion in favor of inclusion. A growing chorus responds that visibility without protection invites surveillance and backlash.

In her brilliant work of legal history, Vice Patrol, Anna Lvovsky disentangles the forms of cultural salience, stereotype, and self-representation that often fly under the banner of “visibility.” Lvovsky takes moments of mid-century gay visibility as her starting point, showing how media attention hardened stereotypes about gay culture. Those stereotypes had a curious afterlife in the legal system, leading to “epistemic gaps” between enforcement institutions. On her account, courts did more than showcase public debates over the nature of homosexuality: they established “binding truths” about queer life.

This essay reads contemporary anti-transgender policing and transgender civil rights struggles through Vice Patrol to explore possible escape routes from the visibility trap. Through a deeper understanding of the way criminal enforcement metabolizes popular representation, it encourages contemporary transgender advocates to develop a kind of strategic intelligibility, by distinguishing circumstances and situations where visibility to the state is more or less necessary and desirable.

Dorothy Kenyon and Pauli Murray: Their Quest for Sex Equality in Jury Service

Jennifer Brinkley, Dorothy Kenyon and Pauli Murray: Their Quest for Sex Equality in Jury Service,   
Tennessee Journal of Race, Gender, and Social Justice, Forthcoming

This article will look at the history of women and jury service, focusing on the work both Kenyon and Murray did to persuade courts that sex discrimination, like race discrimination, was unconstitutional. Jury service was an issue that advocates of equality could agree upon and Kenyon and Murray would use every resource at their disposal to obtain compulsory service for women. Part II gives a brief history of how women were excluded from juries in the United States. It provides popular culture references of the time, along with public opinion about whether women should serve. This clarifies the history surrounding jury service. Part III provides context on the lives of Dorothy Kenyon and Pauli Murray before they became a team. Their litigation strategy was strongly influenced by division in the women’s equality movement over how best to proceed to seek relief from sex discrimination. Some thought legislative change would be best, while others believed judicial reinterpretation was the proper pathway. The division, and its impact, is discussed. Part IV begins with a history of jury service litigation before various courts. In 1966, Kenyon and Murray co-authored the ACLU’s brief for a federal court case, White v. Crook, where they successfully challenged an Alabama statute restricting jury service only to white males. Prior to White, all sex-based discrimination challenges arguing a Fourteenth Amendment violation had failed. White wanted to successfully link the civil rights and women’s rights movements by showing the inferior status both groups experienced. This section gives details about the White case — the facts, arguments made, and ultimate victory. Following their work on White, Kenyon and Murray encouraged the creation of the ACLU Women’s Rights Project, which would place Professor Ruth Bader Ginsburg at the helm. In her brief for Reed v. Reed, where the United States Supreme Court unanimously struck down an Idaho law preferring males over females in administrating estate matters, Ginsburg gave credit to both Kenyon and Murray by listing them as co-authors. The Reed decision marks the first time the Supreme Court declared a statute unconstitutional based on sex-based differentials using the Equal Protection Clause of the Fourteenth Amendment. A discussion of the ACLU Women’s Rights Project and subsequent cases drawing on the strategies put forth in White provides evidentiary support of the important work Kenyon and Murray did to effect change. They built, step by step, a foundation on which Ginsburg, on behalf of the Women’s Rights Project, could be successful in arguing sex discrimination cases. Part V concludes with a summary of their friendship, outside of Kenyon and Murray’s activism.

Abortion Rights and Federalism--Some Lessons from the Nineteenth Century United States

Kate Masur, Abortion Rights and Federalism: Some Lessons from the Nineteenth Century United States

The Dobbs decision, which gives states complete control over abortion laws, has unleashed conflicts that resemble the battles that arose when enslaved people fled slave states for free states, and enslavers, in turn, mobilized state and federal power to get them back. The Supreme Court’s decision in Dobbs v. Jackson Women’s Health Organization has prompted frequent allusions to slavery and the antebellum United States. The history of those struggles reminds us of the corrosive impact of interstate conflict and of the importance of federal protections for freedom and individual rights. The history of the United States in the nineteenth century also reminds us that when we bring the power of the federal government to bear on an issue, it must be done with respect for people’s dignity and capacity for moral decision-making.

*Professor Masur delivered the Spring 2022 Regula Lecture at the Center for Constitutional Law at Akron based on her book, Until Justice Be Done: America’s First Civil Rights Movement, From the Revolution to Reconstruction (2021), a finalist for the 2022 Pulitzer Prize in History.

The Fall of Cross-Dressing Bans and the Transgender Legal Movement, 1963-86

Kate Redburn, Before Equal Protection: The Fall of Cross-Dressing Bans and the Transgender Legal Movement, 1963–86, Law & History Review, 1-45 (2023).

Scholars are still unsure why American cities passed cross-dressing bans over the closing decades of the nineteenth century. By the 1960s, cities in every region of the United States had cross-dressing regulations, from major metropolitan centers to small cities and towns. They were used to criminalize gender non-conformity in many forms - for feminists, countercultural hippies, cross-dressers (or “transvestites”), and people we would now consider transgender. Starting in the late 1960s, however, criminal defendants began to topple cross-dressing bans.

The story of their success invites a re-assessment of the contemporary LGBT movement’s legal history. This article argues that a trans legal movement developed separately but in tandem with constitutional claims on behalf of gays and lesbians. In some cases, gender outlaws attempted to defend the right to cross-dress without asking courts to understand or adjudicate their gender. These efforts met with mixed success: courts began to recognize their constitutional rights, but litigation also limited which gender outlaws could qualify as trans legal subjects. Examining their legal strategies offers a window into the messy process of translating gender non-conforming experiences and subjectivities into something that courts could understand. Transgender had to be analytically separated from gay and lesbian in life and law before it could be reattached as a distinct minority group.

Full text: https://www.doi.org/10.1017/S0738248022000384

New Book Her Honor: Stories of Challenge and Triumph from Women Judges

Lauren Stiller Rikleen ed., Her Honor: Stories of Challenge & Triumph from Women Judges (2023)

At a time when surveys reveal declining trust in our courts, this book offers reasons for hope and even pride. Her Honor features a collection of personal stories by and about some of the country's most respected female judges. Each chapter author openly shares nuanced stories of challenges and successes, including the inequality, bias, and other barriers they faced and overcame in their lives.

The 25 judges featured in Her Honor are from all levels of the state and federal courts, including Chief Judges and two Supreme Court Justices. Their moving stories will be all too recognizable by women who may currently be experiencing similar challenges and biases in their own careers.

Her Honor also demonstrates how the best of our judges share a passion for ensuring an accessible and fair system of justice, without a political agenda. They reveal a deep compassion for humanity along with an abiding respect for the law, respecting precedent but acting with courage if the law offers a way forward.

All the judges in this book have lived lives of deep influence. The stories shared will extend that influence further and inspire future generations to persevere in their careers during even the most difficult time

Etienne C. Toussaint on "The Purpose of Legal Education"

Etienne C. Toussaint has posted forthcoming work on SSRN titled The Purpose of Legal Education. This article is to be published in Volume 111 of the California Law Review (2023). The abstract previews:  

 

When President Donald Trump launched an assault on diversity training, critical race theory, and The 1619 Project in September 2020 as “divisive, un-American propaganda,” many law students were presumably confused. After all, law school has historically been doctrinally neutral, racially homogenous, and socially hierarchical. In most core law school courses, colorblindness and objectivity trump critical legal discourse on issues of race, gender, or sexuality. Yet, such disorientation reflects a longstanding debate over the fundamental purpose of law school. As U.S. law schools develop antiracist curricula and expand their experiential learning programs to produce so-called practice-ready lawyers for the crises exposed by the COVID-19 pandemic, scholars continue to question whether and how, if at all, the purpose of law school converges with so

 

This Article argues that the anti-racist, democratic, and movement lawyering principles advocated by progressive legal scholars should not be viewed merely as aspirational ideals for social justice law courses. Rather, querying whether legal systems and political institutions further racism, economic oppression, or social injustice must be viewed as endemic to the fundamental purpose of legal education. In so doing, this Article makes three important contributions to the literature on legal education and philosophical legal ethics. First, it clarifies how two ideologies—functionalism and neoliberalism—have threatened to drift law school’s historic public purpose away from the democratic norms of public citizenship, inflicting law students, law faculty, and the legal academy with an existential identity crisis. Second, it explores historical mechanisms of institutional change within law schools that reveal diverse notions of law school’s purpose as historically contingent. Such perspectives are shaped by the behaviors, cultural attitudes, and ideological beliefs of law faculty operating within particular social, political, and economic contexts. Third, and finally, it demonstrates the urgency of moving beyond liberal legalism in legal education by integrating critical legal theories and movement law principles throughout the entire law school curriculum.

 

 

Virginia Judge Cites 19th Century Slavery Law in Holding Frozen Embryos are Chattel

Judge Richard Gardiner, a Fairfax County Circuit Court Judge, has made national headlines by ruling that frozen embryos are legal chattel. 

The preliminary opinion by a Fairfax county circuit court judge, Richard Gardiner, which he delivered in a long-running dispute between a divorced husband and wife, is being criticized by some for wrongly and unnecessarily delving into a time in Virginia history when it was legal to own human beings.

 

Solomon Ashby, president of the Old Dominion Bar Association, a professional organization made up primarily of African American lawyers, called Gardiner’s ruling troubling.

 

“I would like to think that the bench and the bar would be seeking more modern precedent,” he said.

 

Gardiner did not return a call to his chambers on Wednesday. His decision, issued last month, is not final: he has not yet ruled on other arguments in the case involving Honeyhline and Jason Heidemann, a divorced couple fighting over two frozen embryos that remain in storage.

Here is a link to the full opinion. The ruling file format does not allow for pasting into this blog, however, the reasoning on pages 7-8 is worth a read.

New Book First Woman Judge: Florence Allen, Feminism and the Transformation of US Courts

My new book, First Woman Judge: Florence Allen, Feminism & the Transformation of US Courts, will be published by the University of California Press in 2025. The book examines the jurisprudence of Judge Allen's forty years on the courts through the lens of progressive law, feminism, and social justice. 

Judge Florence Allen was the "first" woman judge many times over.  She was the first woman in the country elected to a general jurisdiction trial court, the Cuyahoga County Court of Common Pleas (Cleveland) in 1920 immediately following ratification of the 19th Amendment.  Before that there had been a few women magistrates in the country: two women justices of the peace (WY and IL), two women juvenile court judges (IL and DC), and one woman probate judge (KS). Allen was then the first woman elected to a state supreme court, joining the Ohio Supreme Court in 1922. She was then the first woman appointed to a federal appellate court, nominated by President Franklin D. Roosevelt to the U.S. Court of Appeals for the Sixth Circuit in 1934. And she was the first woman shortlisted to the U.S. Supreme Court--considered ten times by four presidents from two parties.

I've written a basic account of Allen's life and jurisprudence here: The Jurisprudence of the First Woman Judge, Florence Allen: Challenging the Myth of Women Judging Differently, 27 William & Mary J. Race, Gender & Social Justice 293 (2021). The book will delve more into Allen's progressive roots, theories of the expansive governmental power, liberal and social feminisms, and work for women's rights and suffrage.

 

 

Mary Wollstonecraft's 18th Century Feminist Philosophy of Relational Autonomy

Alan Coffee, "Mary Wollstonecraft and Relational Autonomy" in Routledge Handbook of Autonomy, Ben Colburn (ed.), London: Routledge, 2022, 65-74

Although best known as an early and pioneering feminist, Mary Wollstonecraft has more recently become recognised as a wide-ranging moral and political philosopher (Bergès and Coffee 2016, Bergès, Botting and Coffee 2019). One ideal that is of central importance within her philosophical framework is that of social and personal freedom understood as independence from arbitrary control. Although I generally prefer to speak of ‘freedom’ or ‘independence’ with respect to Wollstonecraft, these being her own terms, the concept that she uses can be understood in terms of a form of autonomy. In particular, it can be argued that Wollstonecraft develops an idea that anticipates and foreshadows the contemporary notion of relational autonomy (Mackenzie 2016, Coffee 2018).

New Book: Woman, The American History of an Idea

Lillian Faderman, Woman: The American History of an Idea (2023)

What does it mean to be a “woman” in America? Award-winning gender and sexuality scholar Lillian Faderman traces the evolution of the meaning from Puritan ideas of God’s plan for women to the sexual revolution of the 1960s and its reversals to the impact of such recent events as #metoo, the appointment of Amy Coney Barrett to the Supreme Court, the election of Kamala Harris as vice president, and the transgender movement.
 
This wide-ranging 400-year history chronicles conflicts, retreats, defeats, and hard-won victories in both the private and the public sectors and shines a light on the often-overlooked battles of enslaved women and women leaders in tribal nations. Noting that every attempt to cement a particular definition of “woman” has been met with resistance, Faderman also shows that successful challenges to the status quo are often short-lived. As she underlines, the idea of womanhood in America continues to be contested.

Situating Dobbs in Constitutional Memory and Other Contexts Where Women's Rights Have Been Retracted

Paula Monopoli, Situating Dobbs, 14 ConLawNOW 45 (2023)

This Article applies the concept of constitutional memory to the Supreme Court’s decision in Dobbs v. Jackson Women’s Health Organization to dispute the dominant view that the case was unique in erasing a constitutional right. It offers three examples—voting, Prohibition, and protective labor legislation—to illustrate how situating Dobbs within an expansive view of feminist legal history teaches us that it is not the only—just the most recent—example of the Court’s eroding or erasing previously recognized legal protections or rights that had a positive impact on women’s lives. It concludes that Congress, the Supreme Court, and the People themselves have been more likely to erase or erode a legal or constitutional right that has a disproportionately positive effect on women’s lives. By adopting a broader view of constitutional history, advocates can more effectively respond to Dobbs’ implications for reproductive self-determination.

The Original Public Meaning of Abortion and the Ambiguities of Pregnancy

Evan Bernick & Jill Wieber Lens, Abortion, Original Public Meaning, and the Ambiguities of Pregnancy

Relying on 1868 abortion statutes, the 2022 Supreme Court held in Dobbs v. Jackson Women’s Health Org. that no federal constitutional right to abortion exists. Mere months later, a petition for certiorari asked the Court to determine that “person” in the Fourteenth Amendment includes prenatal existence, which would require criminalization of abortion in all states. The petitioners cited Dobbs and claimed the authority of legal history in 1868 and before. These arguments will be heard again, and they are increasingly framed in terms of the “original public meaning” of the Fourteenth Amendment.

This Article refutes them on their own terms. It looks at 1868, but it doesn’t stop at statutes, treatises, or dictionaries. Instead, it looks at the reality of pregnancy in 1868, as experienced by the public—in particular, by women and their doctors. This was a reality full of ambiguities. Pregnancy was not medically diagnosable until quickening; ideas of prenatal development were fluid and women let doctors take their miscarried fetal tissue and stillborn babies away for scientific study; and pregnancy loss was common and expected and impossible to distinguish from abortion.

Women and their doctors lived these ambiguities. Nothing in the statute books changed them. These ambiguities similarly negate any possibility that the original public meaning of “person” in the Fourteenth Amendment included prenatal existence.

I've also done a little bit of work on the public meaning of abortion in the 1860s. See Tracy Thomas, Elizabeth Cady Stanton & the Feminist Foundations of Family Law (NYUP 2016), chp. 4, "The Incidental Relation of Motherhood."

Study Shows Intergenerational Gap in Decisionmaking by Women Judges, with Women Coming of Age Before 1963 Voting with Significantly Higher Progressive Inclinations

Isaach Unah, Ryan Williams & Stephanie Zaino, Echoes of the Feminine Mystique: Female Judges and Intergenerational Change in the United States Courts of Appeal,  Journal of Law & Politics (forthcoming) 

Is there an intergenerational gap in decision-making among female judges? Do female judges from United States Supreme Court Justice Ruth Bader Ginsburg’s generation hold a different orientation to law and policy as compared to judges from younger generations? Reviewing different theoretical perspectives regarding gender and judging, we examine the significance of intergenerational change among female judges whose political coming-of-age occurred at different historical intervals. We explore how this change informs decisional outcomes in the U.S. courts of appeals. To designate a temporal marker of intergenerational change, we use Betty Friedan’s publication of The Feminine Mystique in 1963. Our analysis indicates that despite the traditionalistic culture in which they grew up, female judges who came of age prior to publication of The Feminine Mystique voted with significantly higher progressive inclinations compared to female judges who came of age after the book’s emergence. We explore the implications of this finding for judicial decision-making.

Interview with Author of New Shirley Chisholm Biography

The 19th features an interview of historian Anastasia Curwood on her new biography of Shirley Chisholm, the first Black woman elected to Congress.  The article explains why a "cradle to grave" biography about Chisholm is so important: 

Shirley Chisholm was a trailblazer: the first Black woman elected to Congress and the first Black candidate and the first woman candidate for a major-party nomination for president of the United States. Still, despite her tremendous influence on American politics, biographies of Chisholm have been immensely hard to come across. 

With her recently released book, “Shirley Chisholm: Champion of Black Feminist Power Politics,” Anastasia C. Curwood, a professor and interim chair of the Department of History at the University of Kentucky, hopes to alleviate this gap. A cradle-to-grave biography as Curwood calls it, the book gives insight into who Chisholm was as a person and how Chisolm’s many lived experiences and multiple identities shaped who she was. In the book, Curwood coins the term “Black Feminist Power Politics” to describe how Chisholm’s identity as a Black woman born to immigrant parents in a working-class family allowed her to empathize with the lived experiences of marginalized individuals and informed her politics. 

The 19th article features an interview with the author describing many themes of the book. The book was published on January 10, 2023.