Gender and the Law Prof Blog

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

Wednesday, October 2, 2019

Reading the 19th Amendment into Constitutional Jurisprudence

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

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

Abstract:

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

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

October 2, 2019 in Constitutional, Family, Legal History, SCOTUS | Permalink | Comments (0)

Monday, September 30, 2019

History of the French Shadow Jury of Women

Sara Kimble, Of "Masculine Tyranny" and the Women's Jury": The Gender Politics of Jury Service in Third Republic France, Law & History Review (2019)

In 1905 Hyacinthe Bélilon (1846–1913) and Camille Bélilon (1851–1930), two sisters working under pseudonyms as writers, began attending criminal trials and issuing unofficial verdicts as part of a new organization: the jury féminin, the women’s jury. Led by the sisters, this organization consisted of a panel of twelve female jurors who attended trials in Paris.  As witnesses to the courtroom spectacle, these women would have been seated as members of the public audience, behind the gates of the barreau, the open space where attorneys and witnesses addressed the judges. Following each trial, the jury féminin issued their own unofficial verdicts and published their reasoning in the monthly newspaper Journal des femmes over a period of 5 years.  The resulting trove of verdicts for eighty cases highlights the ways in which these unauthorized female jurors made decisions to exonerate or assign responsibility to the defendants.

 

The jury féminin contributed to a sustained public protest against male bias in the justice system, a condemnation of official all-male juries’ role in perpetuating a double moral standard and the inequalities of the French civil and penal codes. Their feminist legal commentary on criminal cases challenged the assumption that the legal system provided equal treatment for female victims or defendants. These activists’ courtroom appearances and published articles were forms of protest that furthered the political campaign to admit women to criminal juries, and by extension, to promote an enlarged role in civic life for women.

September 30, 2019 in Courts, International, Legal History | Permalink | Comments (0)

Wednesday, September 18, 2019

Rethinking the Supreme Court's Decision in Muller v. Oregon through an Intersectional Lens

Emily Prifogle, Law & Laundry: White Laundresses, Chinese Laundrymen, and the Origins of Muller v. Oregon  
Forthcoming, Studies in Law, Politics, and Society

This article uses the historian’s method of micro-history to rethink the significance of the Supreme Court decision Muller v. Oregon (1908). Typically considered a labor law decision permitting the regulation of women’s work hours, the article argues that through particular attention to the specific context in which the labor dispute took place — the laundry industry in Portland, Oregon — the Muller decision and underlying conflict should be understood as not only about sex-based labor rights but also about how the labor of laundry specifically involved race-based discrimination. The article investigates the most important conflicts behind the Muller decision, namely the entangled histories of white laundresses’ labor and labor activism in Portland, as well as the labor of their competitors — Chinese laundrymen. In so doing, the article offers an intersectional reading of Muller that incorporates regulations on Chinese laundries and places the decision in conversation with a long line of anti-Chinese laundry legislation on the West Coast, including that at issue in Yick Wo v. Hopkins (1886).

September 18, 2019 in Constitutional, Gender, Legal History, Race | Permalink | Comments (0)

Tuesday, September 10, 2019

Anna Julia Cooper, Activist for Black Women's Suffrage and Social Service

The Atlantic, How Black Suffragettes Subverted the Domestic Sphere

A few decades after her graduation from Oberlin College, the scholar and educator Anna Julia Cooper wrote a stern missive in the Ohio university’s alumni journal. Having relocated to Washington, D.C., where she worked in the district’s first Colored Settlement House, Cooper wrote in the early 1900s with clarity and conviction about the importance of social service. She exalted the domestic sphere as a cornerstone of broader community support—and, in doing so, also illustrated just how unevenly groups like white religious entities metered their care. Her letter, published amid the struggle against gendered discrimination at the ballot box, revealed rifts in which groups of Americans most readily earned others’ sympathy and respect. One hundred years after the passage of the 19th Amendment guaranteed white women the right to vote, Cooper’s work still offers an instructive lens through which to consider social movements and interpersonal dynamics alike.

Like those made by other black suffragettes, the statement, titled “The Social Settlement: What It Is and What It Does,” was an often pithy indictment of the sociopolitical landscape—and, implicitly, a blueprint for what might be improved. ***

 

Sometimes referred to as the mother of black feminism, Cooper was born into slavery around 1858 in Raleigh, North Carolina. She would go on to spend most of her long academic and community–oriented career living in Washington, D.C., where she helped establish the Colored Women’s League (which later became part of the National Association of Colored Women’s Clubs, led by the likes of Mary Church Terrell, the organization’s first president). As white women across America endeavored to secure voting rights for themselves—and made calculated choices to exclude black people from those efforts—Cooper produced some of the most foundational analysis of injustice in the United States, most notably the overlaps of racism and sexism.

September 10, 2019 in Legal History, Race | Permalink | Comments (0)

Thursday, September 5, 2019

CFP Rethinking First Wave Feminism

Signs Special Issue: Rethinking “First Wave” Feminisms

Over the past several decades, scholarship in a variety of disciplines has challenged the “wave” model of feminism. Inspired by the 2020 centennial of the Nineteenth Amendment, this special issue seeks to rethink “first wave” feminisms in a heterogeneous and expansive way—by pushing geographic, chronological, and ideological boundaries and by broadening the definition of whom we usually think of as early feminists. While contributions on the Nineteenth Amendment in the United States, and the suffrage movement worldwide, are welcome, we also encourage submissions that consider early manifestations of feminism and feminist movements in broad and global terms. Scholars from all disciplines are encouraged to submit their work.

The editors invite essays that consider questions along but by no means limited to the following lines:

  • How were the era’s signal achievements—the global movement for universal suffrage, international labor legislation for women and children, international human rights, and transnational solidarities around a range of goals—achieved? What compromises were entailed in the legislative accomplishments, and what possibilities did their passage enable? What accomplishments were outside the realm of legislation?
  • In our scholarly and popular retellings, what is celebrated, and what is silenced? Are there historical figures, or events that have been written out of the story, and why?
  • What were the racial politics of the first manifestations of feminism? How do we understand—in light of the intervening history—the compromises and political exigencies that led to the passage of the Nineteenth Amendment and similar developments worldwide? How do the exclusions of the era help us recognize the exclusions of our own?
  • What were the sexual politics of early feminisms? What role did class- and race-based understandings of respectability play? What role did reproductive rights and justice play?
  • What are the feminist implications of the medical history of the era, notably the movement for birth control, underground abortion networks, and early transgender movements?
  • What were the class politics of early feminisms, and what role did political economy and labor play in feminist thought and activism?
  • How do we understand first-wave feminisms through the frames of the Romantic and modernist turns? How did new literary, visual, and musical representations of women shape (and how were they shaped by) women’s newfound status as public and political actors?
  • How do we understand the long history of feminism in terms of coterminous (and overlapping) movements and developments, including but not limited to war, imperialism, revolution, socialism, migration, urbanization, pandemic, progressivism, abolitionism, Reconstruction, segregation, and fascism—and how does this confluence shed light on the present era?
  • Can we understand early feminisms as media phenomena shaped by (and shaping) the communications and technological developments of their era, notably the telegraph, radio, and the increasing proliferation of print culture? What key texts (including literary texts) articulated important feminist theories and galvanized activism?
  • Finally, how could we understand the initial emergences of feminism and its subsequent history if we rejected the wave metaphor and instead conceive of early feminism—with its limitations and its extraordinary achievements—as a beginning that casts a clear and compelling light on the feminist activism to come?

Signs particularly encourages transdisciplinary and transnational essays that address substantive feminist questions, debates, and controversies without employing disciplinary or academic jargon. We seek essays that are passionate, strongly argued, and willing to take risks.

The deadline for submissions is September 15, 2020. The issue will be guest edited by Susan Ware, general editor of the American National Biography and Honorary Women’s Suffrage Centennial Historian at the Schlesinger Library, and Katherine Marino, assistant professor of history at UCLA.

Please submit full manuscripts electronically through Signs’ Editorial Manager system at http://signs.edmgr.com. Manuscripts must conform to the guidelines for submission available at http://signsjournal.org/for-authors/author-guidelines/.

September 5, 2019 in Call for Papers, Legal History, Theory | Permalink | Comments (0)

Book Podcast The Importance of Studying Women's History

Cover of Oxford Handbook of American Women's and Gender History

 

Podcast, The Case for Women's History

In the spring of 2019, a widely circulated column assailed the field of history for being too “esoteric,” in particular calling out subfields like women’s and gender studies. The executive director of the American Historical Association, Jim Grossman, wrote a response suggesting that the critic should have talked to actual historians about why fields that may seem esoteric are actually very valuable. Today’s guests are the editors of the Oxford Handbook of American Women’s and Gender History.

 

Ellen Hartigan O’Connor and Lisa Materson, both professors of history at the University of California, Davis, join us to discuss the field of women’s studies, which as they’ve argued in the introduction to the book, is not an esoteric topic at all, but actually quite critical to our understanding of American history.

***

 

So the core of women’s and gender history as a field is archive innovation. Because, to your point about, you know, the lack of sources, or voices don’t appear in archives, the whole field is built around, in many instances, writing histories of people who either appear sparsely in records, in court cases, in business correspondence, or in diplomatic treaties for example. So they appear either very infrequently or not at all. And alternatively, these are archives, or the records that have been created, not from the perspective of women. And so as a result, the field has developed a range of approaches that interrogate the archive, and are innovative in the in the way that they approach it to recover the history of those of women, for example, and those individuals who haven’t historically appeared in the archive.

 

And I think it’s worth mentioning that what are sometimes just referred to as silences, or “the sources are not there.” I think the most recent scholarship on Women’s and Gender history points out that those silences are deliberate that the sources are the result of records created by people in institutions in order to consolidate power. That that was an essential part of creating the archive is to consolidate power over women over other women, men over women, heterosexuals over non binary folks. And so rather than to lament the sources that are not there–and it’s the task of women’s agenda historians both to read against the grain as they say–but also to critically analyze the way that the archive itself deliberately silences these voices.

September 5, 2019 in Books, Legal History | Permalink | Comments (0)

Thursday, August 29, 2019

How the Equal Rights Amendment would Affect Women's Rights

 I'm quoted in this article in Time on the history and future of the ERA.

Tara Law, Time, The U.S. Constitution Doesn't Guarantee Equal Rights for Women. Here's Why.

When American women won the right to vote — a milestone commemorated on Women’s Equality Day, which marks the anniversary of the Aug. 26, 1920 certification that the 19th Amendment had been ratified — it was just one part of an even larger fight for equality. From Mary Church Terrell’s endeavors to make sure African-American women were included in the fight for suffrage, to Margaret Sanger’s work to promote access to birth control, to Ruth Bader Ginsburg’s efforts to eliminate sex discrimination in the law, women before and after that day in 1920 have fought for wider rights.

 

And yet, the U.S. Constitution does not say that people are equal regardless of their sex.

 

This fact came close to changing in 1972, when the U.S. legislature passed the Equal Rights Amendment (ERA), which stated that rights cannot be denied “on account of sex.” But after conservatives mobilized opposition to the ratification of the proposal, the amendment fell short of the three-quarters majority needed to add the ERA to the Constitution. Now, as the Equal Rights Amendment has regained momentum — with two more states, Illinois and Nevada, recently ratifying it — advocates say that there’s a new opportunity for the ERA to move ahead. ***

How would an Equal Rights Amendment affect women’s rights?

Although American women have made significant gains in equality since the 1970s — and certainly since the 1920s — advocates say that an Equal Rights Amendment could still have a profound effect on the law and on American society.

 

Advocates say that the amendment is help back by the sense among some people that it’s not necessary, but proponents argue that it could strengthen the legal basis for combating violence against women, pay inequality and maternity leave.***

 

Professor Tracy Thomas of The University of Akron School of Law tells TIME that the law would prevent women’s rights from sliding back, and eliminate some “wiggle room” that leaves space in the law for stereotypes to affect civil rights. She also argues that protecting women’s rights in the Constitution would have a major cultural impact.

 

There’s this overriding structure of the highest law in the land that has this absolute command, and so that has to trickle down,” says Thomas. She says that recent events such as the rise of the #MeToo movement reveal how quickly society can change. “Once you start changing the culture and the dialogue, things that were acceptable become unacceptable really quickly.”

August 29, 2019 in Constitutional, Equal Employment, Legal History | Permalink | Comments (0)

CFP AALS Women in Legal Education Section "A Century Since Suffrage"

Call for Presentations and Papers – Monday, September 23 Deadline


The Women in Legal Education (WILE) Section of the American Association of Law Schools Seeks submissions for the American Association of Law Schools Annual Meeting January 2-5, 2020 in Washington, D.C.

The Section on Women in Legal Education is pleased to announce a Call for Papers from which presenters will be selected to participate in the Section’s main program at the AALS 2020 Annual Meeting in Washington, D.C. The program, A Century Since Suffrage: How Did We Get Here? Where Will We Go? How Will We Get There?, will explore the legal accomplishments and failures of the women’s movement since 1920. A century ago, women won the right to vote. Since then, women garnered additional rights in virtually every legal area, including in the realms of employment, property, reproduction, education, caretaking, sexual freedom, and protection from violence. Despite significant success, much work remains.

This session will consider the future of the women’s movement through a critical examination of our past as guided by three multi-faceted inquiries:
(1) How did we get here?
Topics can include, for example: Who shaped the movement’s path? What were the movement’s guiding ideologies, practices, and priorities? Where did the movement fail? How did the exclusion of African American and other minority women shape the movement’s trajectory and goals? How did the prioritization of some issues over others impact women’s lives and the reality of sex equality?
(2) Where will we go?
Topics can include, for example: What are or should be our priorities as we move forward? How do we continue our work given the current political climate, assault on women’s rights, and status of our world? How will our understandings of gender shift the goals of the women’s movement? What impact will intersectionality have on the movement?
(3) How will we get there?

Topics can include, for example: Who will shape our actions and goals as we move forward? Which philosophies will guide us? What are the obstacles in our path? What have we learned from our past and how will that knowledge guide us into the future?
Submission guidelines: We welcome proposals for 30-minute presentations on these topics. Proposals for presentations should be sent as an e-mail file attachment in MS Word to

Professor Rona Kaufman at kitchenr@duq.edu by Monday, September 23, 2019. She will confirm receipt of all submissions. Proposals for presentations should be 500-1500 words long, and should denote the topic to be addressed, any special technological needs for the session, the presenter’s background, years of teaching, institutional affiliation, and contact information. All abstracts will be reviewed by members of the WILE Program Committee. Selected professors will present their work at the 2020 AALS Annual Meeting. Full drafts of articles based on conference presentations will be due by July 1, 2020. Final versions of the articles will be due by August 19, 2020. Accepted articles will be published in the Winter 2021 issue of the Duquesne Law

August 29, 2019 in Call for Papers, Conferences, Legal History | Permalink | Comments (0)

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.  

Allen_Judge_Florence_E.300 (002)

 

 

 

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)