Gender and the Law Blog

President Designates Frances Perkins National Monument for First Woman Cabinet Secretary

President Biden Designates Frances Perkins National Monument

Today President Biden will sign a proclamation establishing the Frances Perkins National Monument in Newcastle, Maine, to honor the historic contributions of America’s first woman Cabinet Secretary and the longest-serving Secretary of Labor.

Frances Perkins was the leading architect behind the New Deal and led many labor and economic reforms that continue to benefit Americans today. During her 12 years as Secretary of Labor under President Franklin D. Roosevelt, she envisioned and helped create Social Security; helped millions of Americans get back to work during the Great Depression; fought for the right of workers to organize and bargain collectively; and established the minimum wage, overtime pay, prohibitions on child labor, and unemployment insurance

National Park Service, Frances Perkins National Monument

History of The Men's Rights Movement and American Politics, 1960-2005

 Theresa M. Iker, Before the Red Pill: The Men's Rights Movement and American Politics, 1960-2005, Stanford Dep't of History, PhD Dissertation (2023).

"Before the Red Pill" [reference to "The Matrix"] traces the American men's rights movement (MRM) from its roots in the early 1960s to its growing influence in mainstream national politics by the early 2000s. Examining both MRM leadership efforts and grassroots organizing across the United States, this dissertation utilizes organizational papers, activist correspondence, oral histories, movement newsletters, advice literature and memoirs, and mainstream press coverage.

The dissertation reveals the complex dynamics of gender, race, and politics in the growth of the MRM. The experience of divorce radicalized men's rights activists, who began organizing in the 1960s to reform family law. Rather than a mere backlash against feminism, men's rights thinkers adapted some of their most important insights and strategies from second-wave feminists throughout the 1970s, before becoming militantly misogynistic by the 1990s. Both conservative women intellectuals and second wives of divorced men's rights activists played critical roles during this era, softening the movement's public image and aiding in the development of a fathers' rights sub-movement devoted to child custody and support reforms. Overwhelmingly white themselves, men's rights thinkers made selective allusions to race to compare their politics to the Black freedom struggle, yet they distanced themselves from potential Black members amid the racialized politics of the 1980s and 1990s.

By the turn of the twenty-first century, men's rights activists devoted themselves to undermining feminist organizing against rape, domestic violence, and sexual harassment while claiming that men, rather than women, were the true victims of gendered violence. The simultaneous intensification of antifeminist and anti-state sentiments among activists pushed the movement further rightward into conservative partisan politics. Understanding the men's rights movement helps explain the emotive roles of masculinity, grievance, and entitlement in mobilizing the far Right base and maintaining persistent inequalities in the contemporary United States.

Conference: Abortion in American History

Conference, Abortion in American History: Intimate Decisions, Medical Knowledge, and Legal Decrees in the Two Centuries Before Roe v. Wade

This conference brings together leading scholars to explore the multifaceted history of abortion in 19th- and 20th-century America. Building on the Longo Collection in Reproductive Biology, this conference will explore the underlying history that can deepen public understanding of the controversial politics of abortion law.

New academic research on abortion history has surged in recent years, spurred by the lead-up to the Dobbs decision in 2022. Dobbs arrived at a time when a solid court majority professed reliance on originalism, a form of legal analysis that uses constitutional history and its presumed original meaning as the basis for court decisions. Historians have been busy presenting amicus briefs, both in Dobbs and in a continuing flurry of state court cases since the ruling returned abortion law to the states. Accurately understanding both legal and reproductive history has never been more important.

 

New Book, "Give Her Credit" and the Untold Story of a Women's Bank

Grace L. Williams, Give Her Credit: The Untold Account of a Women's Bank That Empowered a Generation

The galvanizing true story of a group of remarkable women in the 1970s male-run world of business, banking, and finance. They didn’t play by the rules. They changed them and made history.

In the 1970s, a new wave of feminism was sweeping America. But in the boys’ club of banking and finance, women were still infantilized—no credit without a male cosigner, and their income was dismissed as unreliable. If bankers weren’t going to accommodate women, then women had to take control of their own futures. In 1978 in Denver, Colorado, the opening of the Women’s Bank changed everything.

It was helmed by bank officer B. LaRae Orullian and the brainchild of whip-smart entrepreneur Carol Green, who forged a groundbreaking path with their headstrong colleagues, among them: Judi Foster, investment research whiz; Edna Mosley, unyielding civil rights advocate with the NAACP; Mary Roebling, renowned financial executive; Betty Freedman, a socialite and fundraiser; and Gail Schoettler, a formidable Denver mover and shaker for social justice. Coming together and facing their own unique road to revolution, they built the most successful female-run bank in the nation. It wasn’t easy.

Give Her Credit follows the challenges, uphill battles, and achievements of some of the enterprising women of Denver who broke boundaries, inspired millions, and afforded opportunities for every marginalized citizen in the country. It’s about time their untold story was told.

CFP, Queer Constitutional History, Journal of American Constitutional History

Call for Papers

Journal of American Constitutional History

"Queer Constitutional History" 

Professors Felicia Kornbluh and Marie-Amélie George, guest editors

 We invite scholars in history, law, and related fields to submit articles for a symposium issue of the Journal of American Constitutional History on "U.S. Queer Constitutional History," to be edited by Professors Felicia Kornbluh and Marie-Amélie George, in consultation with journal editor David Schwartz.  We plan to publish the symposium issue in 2025 to coincide with 10^th anniversary of the U.S. Supreme Court's decision in Obergefell v. Hodges. At the time the Court issued the Obergefell decision, the opinion appeared to settle specific questions about the legal and constitutional status of marriages between people of the same sex and broader questions about the constitutionality of formal discrimination against gays and lesbians. Since then, the Supreme Court has issued decisions challenging established sexual-liberty jurisprudence, including Justice Thomas' concurrence in Dobbs v. Jackson (2022), which promised a reconsideration of the whole "substantive due process" tradition.

We invite essays on the queer constitutional history that gave rise to the Obergefell decision-including events outside of the realms of marriage, family law, or U.S. constitutional law-as well as the place of marriage equality within the Court's broader sexual liberty jurisprudence.  We welcome contributions on the evolution of marriage equality, queer parenting, and sexual privacy rights under the U.S. Constitution, as well as related topics. For example, submissions might examine how and why these rights became recognized, their doctrinal underpinnings, the gaps that exist in Constitutional jurisprudence, and the relationship between queer Constitutional rights and the Court's decisions in related fields.

We hope to publish a broad array of perspectives on these topics, to help inform scholarship on queer legal history and U.S. Constitutional history, as well as studies of legal institutions more generally. For that reason, this symposium issue takes an expansive approach to all of its terms: "U.S." extends beyond the mainland to include American territories and the country's diplomatic and international relations; we take "Queer" to mean research on gay, lesbian, bisexual, trans, nonbinary, or asexual people, or otherwise relating to nonnormative and stigmatized gendered and sexualized phenomena; "Constitutional" refers to questions that have been considered in U.S. constitutional courts, as well as related questions that have preceded or transcended them, and matters of state-level and not national constitutional adjudication; and "History" means the study of the past, but not necessarily the deep or distant past, and in this case cannot help but look over its shoulder to connections with contemporary issues.

Abstracts are due February 1, 2025. Please submit them by email to Felicia Kornbluh ([email protected]) and Marie-Amélie George ([email protected]). Authors of selected articles will be notified by March 1, 2025. Drafts, which should range from 5,000 to 10,000 words, will be due July 1, 2025 for submission to peer reviewers. Final versions of the articles will be due September 1, 2025. The guest editors may propose a half-day conference to immediately proceed the American Society for Legal History's annual meeting in 2025. Contributors to this symposium issue would be invited, but not required, to participate

New Book on the History of Abortion Pills

Carrie N. Baker has a new book forthcoming in December 2024 on the history of abortion pills in the United States. The book summary is here. It is available open-source here:  

This is the first book to offer a comprehensive history of abortion pills in the United States. Public intellectual and lawyer Carrie N. Baker shows how courageous activists waged a decades-long campaign to establish, expand, and maintain access to abortion pills. Weaving their voices throughout her book, Baker recounts both dramatic and everyday acts of their resistance. These activists battled anti-abortion forces, overly cautious policymakers, medical gatekeepers, and fearful allies in their four-decade-long fight to free abortion pills. In post-Roe America, abortion pills are currently playing a critically important role in providing safe abortion access to tens of thousands of people living in states that now ban and restrict abortion. Understanding this struggle will help to ensure continued access into the future.

Indigent Defense and Gender

Andrew Davies & Evangeline Bulick, Indigent Defense and Gender, The Sage Encyclopedia of Crime and Gender (Janet P. Stamatel ed., Forthcoming)

In the United States, any defendant facing the possibility of incarceration has the right to be represented by an appointed lawyer if they can’t afford to hire one privately (Argersinger v. Hamlin, 1972; Gideon v. Wainwright, 1963). “Indigent defense” is the name given to this mandate and the systems that provide such lawyers. “Public defenders” and “appointed counsel” are terms for lawyers engaged in that work.

Scholars have examined indigent defense practice through the lens of gender in both historical and contemporary contexts. In this article, we first review work describing the role of women reformers in the visioning and creation of the earliest indigent defense systems in the late nineteenth century. Second, we describe statistical evidence on lawyers’ gender in the contemporary indigent defense profession. Third, we review scholarship on gender in the practice of indigent defense. We give special emphasis to feminist scholarship on women indigent defense lawyers appointed to represent people accused of sex offenses. Though sparse, we highlight evidence on intersectional and non-binary gender identities where it is available.

Women's Legal History Podcast, Key Legal Events During the Interwar Years

Legal History Podcast: Not For Want of Trying

A legal history podcast that uncovers key events in women's legal history in the UK during the interwar years.

Gender, Constitutional Design, and Women's Leadership in Executive Positions

Bringing to your attention prior work that is particularly relevant now.

Paula Monopoli, Gender and Constitutional Design, 115 Yale Law J. 2643 (2006).

Does the allocation of power between the legislative and executive branches, and the way we define the scope of the executive affect whether women ascend to executive office? In this article, Professor Monopoli argues that the constitutional process of boundary-drawing between the legislative and executive branches of government has implications for how successful women will be in ascending to executive positions. She posits that the Hamiltonian vision of an expansive executive with plenary power is the model least likely to result in women’s ascending to executive office. The essay traces the philosophical heritage of Hamilton’s vision and outlines the empirical research that links voter perceptions about competence to the gender of candidates. It explores the stagnating progress of women in American politics in a post-September 11th environment and concludes that the choice of a more communal executive model, rather than an exclusively agentic one, may help reverse that trend and may actually result in a more effective executive.

Professor Monopoli is the founding director of the Women, Leadership & Equality Program at the University of Maryland School of Law.

The History of the Gendered Term "Congressman" and its Neutral Alternative "Representative"

You Should Call House Members "Representatives"

For most of the nation’s history, members of the U.S. House of Representatives have been addressed as “Congressman” or “Congresswoman.” By contrast, a senator is referred to as, well, “Senator.”

These gendered terms for House members dominate in journalism, everyday conversation and among members of Congress.

The name Congress refers to the entire national legislature, composed of the House of Representatives and the Senate. Gender identity aside, Congressman and Congresswoman are fundamentally inaccurate terms.

In the Constitution, Congress refers to the legislative branch as a whole. When discussing the membership of Congress, the Constitution uses “Representatives” and “Senators,” but also “Members” in reference to both. “Congressman” is nowhere in that founding document.

One of the foremost scholars of Congress, the late Richard Fenno, wrote, “a House member’s designation, as prescribed in the U.S. Constitution, is not Congressman, it is Representative.”

As a scholar of Congress and particularly the Senate, I am interested in the differences between the two chambers and how that affects American politics. In my investigation of the origins and evolution of congressman and congresswoman, I combed the records of colonial and state legislatures, as well as records related to the country’s founding and newspapers from the end of the 1700s to the mid-1900s.

Even if the current era were not one of justified sensitivity to gender neutrality and diversity, these two terms for House members are not just dated, they are wrong. Representative is the correct but rarely used term.

Gender, Family and Domestic Innovation in Postwar America

Jorge L. Contreras, Mrs. Aronson’s Patent: Gender, Family and Domestic Innovation in Postwar America" 
62 Houston Law Review (2024, Forthcoming)

This article unearths the curious and hitherto unexplored history of Aronson v. Quick Point Pencil Co. (U.S. 1979). Though the case occupies an important niche in the jurisprudence of patent misuse and preemption, its history illuminates broader issues surrounding innovation policy and gender that are increasingly relevant today. First, Aronson tells a story of domestic innovation-common sense ingenuity that emerges far from university laboratories and Silicon Valley startups. In this respect, the story is an inspirational one: anyone with a bright idea and a little bit of gumption can become an inventor. Even better: the legal system is there, in the form of patents, to help them transact on an equal footing with corporate entities. But Aronson also highlights the very real gender disparities that continue to burden the innovation economy. This account thus joins other recent expositions of the prejudices and hurdles faced by mid-twentieth century American women in the sciences and engineering. Like these accounts, Aronson shows that women inventors were at a serious disadvantage compared to their male counterparts-not only when dealing with governmental agencies, but also within the social structures imposed by their familial relationships. Relying on personal interviews and extensive archival research, this article explores both the history and implications of Aronson. It is hoped that its historical insights will support efforts aimed at addressing these persistent issues today.

Gender, Family and Domestic Innovation in Postwar America

Jorge L. Contreras, Mrs. Aronson’s Patent: Gender, Family and Domestic Innovation in Postwar America" 
62 Houston Law Review (2024, Forthcoming)

This article unearths the curious and hitherto unexplored history of Aronson v. Quick Point Pencil Co. (U.S. 1979). Though the case occupies an important niche in the jurisprudence of patent misuse and preemption, its history illuminates broader issues surrounding innovation policy and gender that are increasingly relevant today. First, Aronson tells a story of domestic innovation-common sense ingenuity that emerges far from university laboratories and Silicon Valley startups. In this respect, the story is an inspirational one: anyone with a bright idea and a little bit of gumption can become an inventor. Even better: the legal system is there, in the form of patents, to help them transact on an equal footing with corporate entities. But Aronson also highlights the very real gender disparities that continue to burden the innovation economy. This account thus joins other recent expositions of the prejudices and hurdles faced by mid-twentieth century American women in the sciences and engineering. Like these accounts, Aronson shows that women inventors were at a serious disadvantage compared to their male counterparts-not only when dealing with governmental agencies, but also within the social structures imposed by their familial relationships. Relying on personal interviews and extensive archival research, this article explores both the history and implications of Aronson. It is hoped that its historical insights will support efforts aimed at addressing these persistent issues today.

Scholarly Forum on the History of Comstock Acts and Anthony Comstock

Anthony Comstock and the Comstock Laws: A JGAPE Forum Preview, Society for Historians of the Gilded Age and Progressive Era

Over the next several weeks, we are going to be publishing a forum on the history and legacy of Anthony Comstock. This forum is forthcoming in the Journal of the Gilded Age and Progressive Era and is formally titled The History and Legacy of Anthony Comstock and the Comstock Laws. Given our current debates on abortion following the Dobbs decision and the Heritage Foundation’s Project 2025, which proposes to revive the Comstock Act, we hope this forum will provide useful historical context about the Act’s influence on American life. This is the first of seven installments.

Forum Introduction

By Magdalene Zier, Lauren MacIvor Thompson, Cathleen Cahill, and Kimberly A. Hamlin

Anthony Comstock arrived in Washington, D.C., in January 1873 with a collection of pornography and big plans for what to do with it. Bearing a veritable grab bag of explicit images, books, pamphlets, contraceptives, and sex toys that he had ordered expressly for the purposes of shock, he set up displays, first in the private homes of legislators and then in the office of the vice president inside the congressional building. As congressmen trooped by to gawk, Comstock spoke to them about the “nefarious business” of obscenity. In just a few weeks, Congress would pass a sweeping law bearing his name, one that criminalized mailing anything to do with sex. “An Act of the Suppression of Trade in, and Circulation of, Obscene Literature and Articles of Immoral Use” included not just pornography and sexual material, but also personal correspondence, educational pamphlets, contraceptives, and items related to abortion. To enforce this sweeping new law, Comstock was appointed Special Agent of the Post Office and endowed with the power to search the mail, seize obscene items, and make arrests. He would soon proudly declare of his accomplishments: “I have endeavored to raise a legal barrier between the youth and this hydra-headed monster of Obscenity.” He was not yet thirty years old.

This blog series aims to provide vital historical context for those seeking to understand the modern revival of Anthony Comstock and his namesake law. The Comstock Act has never been repealed and remains part of Sections 1461 and 1462 in the United States Code, although many Americans have little to no idea about the details of this law, if they have even heard of it. Anthony Comstock himself seems like an odd joke today: a repressed, puritanical, anti-sex reformer and a relic of a bygone past (Figure 1). And yet, because the act has been revived as a strategy for limiting access to reproductive healthcare, Comstock is no joke.

New Book, The Bluestockings: A History of the First Women's Movement

NYT, Book Review, Book Review, The Bluestockings, When Women's Wits Ruled London's Salons

*** Both Woolf and Wollstonecraft argued far more stridently for women’s rights than did Macaulay or her peers, a loosely connected group of 18th-century British women writers and thinkers known — sometimes derogatorily, sometimes affectionately — as the Bluestockings. But as Susannah Gibson argues in her fast-paced and intimate study of the group, the Bluestockings’ feminist revolution lay in their determination to think and write and educate themselves, despite the “pitiless machinations” of British society, which kept single women dependent on their fathers, and married women subordinate to their husbands.

CFP Research Handbook on Gender, History and Law

Call for Contributions for Research Handbook on Gender, History, and Law (Edward Elgar)

As part of Edward Elgar's Research Handbooks in Gender and Law Series edited by Robin West and Alexander Maine, this volume on Gender, History, and Law aims to bring together critical and thought-provoking contributions on the most pressing topics, issues and approaches within legal and gender history. The collection aims to set the agenda in the field and serve as the most important and up-to-date point of reference for researchers as well as students, policy-makers, and lawmakers. 

We are aiming for about 30 essays of 8,000-10,000 words by scholars of legal and gender history on any topic that fits within the book's broad themes, including but not limited to gendered history within legal categories such as family, criminal law and international law, on particular historical periods, on specialist topics such as capitalism and labor, sexuality, race, identity, citizenship, the legal profession and courts, and on sources and methodology. 

The Research Handbook will be published in English, but we seek to provide a broad global perspective. To fulfill its aim of providing cross-cutting scholarship in law and history, each contribution should explore perspectives on what it means to do legal history in the chosen area in the context of the author's own approach.

Manuscripts must be original and not published elsewhere, and are due to the editors by July 1, 2025. Publication is anticipated to be in the summer of 2026.

Please submit abstracts by September 30, 2024. For questions and to submit abstracts, please feel free to reach out to any of us.

Rosemary Auchmuty ([email protected])

Caroline Derry ([email protected])

Danaya Wright ([email protected]) 

New Book, The Sentimental State: How Women-Led Reform Built the American Welfare State

Interview with Elizabeth Garner Masarik on her Book, The Sentimental State: How Women-Led Reform Built the American Welfare State (Univ. Georgia Press 2024)

I got the chance to speak with historian Elizabeth Garner Masarik about her new book The Sentimental State: How Women-Led Reform Built the American Welfare State. An assistant professor of history at SUNY Brockport, Elizabeth is a scholar of American women’s history, the Gilded Age and Progressive Era, and the administrative state. Her new project is on American spiritualism, and she was also eager to discuss her findings on women and the history of welfare networks, charity, and maternalist sentiment. Dr. Masarik defines “sentimentalism,” or feelings surrounding motherhood and child-rearing, as one of the chief drivers behind the push for women-led public health and social initiatives in the nineteenth century.

Your new book is a fascinating examination of the intersection of women’s state-building and the politics of domesticity. Can you talk a little bit about the origins of the book? Was it part of your dissertation? What new directions did you go in as you wrote?

Yes, this book came out of my dissertation. I took a women’s history course with sexuality, gender and sports scholar Susan Cahn during the first semester of my MA program and was hooked. I really latched on to the U.S. maternalist movement of the late 19^th and early 20^th centuries and dove headfirst into learning about the early formation of the U.S. welfare state. Additionally, the primary sources I found where women were speaking about, and grieving over, the death of their infants and young children just hit me; after becoming a mother myself, I couldn’t fathom being able to go on with life if one of my children died. And so, in a way, examining child and infant mortality became a kind of masochistic way for me to study history while also feeling this immense empathy for my subjects. I didn’t set out to focus on infant and child death at the beginning, but the connections between emotions and state-building became so glaringly obvious that I couldn’t look away. It was a subject that spoke to me as a mother and as a recipient of welfare. It felt very personal. When I revised the dissertation into book form I focused more heavily on sentimentalism as a cultural phenomenon of the nineteenth century and how I found that bleeding into the twentieth century.

Revisiting the Legacy of a Feminist Icon, Ruth Bader Ginsburg

Deborah Brake, Gender and the Law: Revisiting the Legacy of a Feminist Icon, Ch. 1 in THE JURISPRUDENTIAL LEGACY OF JUSTICE RUTH BADER GINSBURG (Ryan Vacca & Ann Bartow, eds., NYU Press 2023)

Justice Ginsburg attained celebrity status in her later years as the voice of feminism from the bench, but her influence on law and gender was not always so venerated. For much of her career, feminist scholarly criticism of her gender jurisprudence was sharp. Critics called the approach “formal equality,” pointing out that it benefited those women most similarly situated to men. The criticism echoed that leveled against her strategy as a litigator representing male plaintiffs. In recent years, Justice Ginsburg’s legacy has been burnished by a fresh interpretation crediting it with a more robust vision of gender equality than previously appreciated. This chapter contends that, while far from radical, the Justice’s gender jurisprudence is a product of a jurist committed to minimizing the role of gender as a site of social and economic oppression.

Although Justice Ginsburg’s impact on gender equality can fill a book on its own, this chapter focuses on identifying and explaining three core themes: an antipathy toward gender stereotypes embedded in the law; a vision of gender equality that transcends formal equality; and a recognition of the centrality of reproductive freedom to women’s equality. Each of these themes has been advanced, albeit imperfectly, by Justice Ginsburg’s career as a litigator and a jurist.

Utah's Majority-Women Supreme Court Upholds Injunction of Strict Abortion Ban and Includes Women's Legal Scholarship of History in its Analysis

The majority-female Utah Supreme Court upheld an injunction preliminarily enjoining an abortion ban by a vote of 4-1. The case is Planned Parenthood of Utah v. State, ___P.3d___, 2024 WL 3612730 (Utah Aug. 1, 2024)

    Wash Post, Utah Abortion Ban Remains on Hold After Ruling by State's High Court

    NYT, Utah Supreme Court Upholds Block on Strict Abortion Ban

In the discussion of the state history of abortion regulation in the late 19th century, the majority includes a discussion of my work: 

In addition, the State's evidence does not necessarily demonstrate that abortion was illegal at statehood because Utahns understood that a woman lacked the legal ability to decide whether to carry a pregnancy to full term. There is evidence suggesting that concern for the life of the mother motivated, at least in part, abortion bans. See, e.g., Tracy A. Thomas, Misappropriating Women's History in the Law and Politics of Abortion, 36 Seattle U. L. Rev. 1, 21 (2012). Tracy Thomas writes that “early legislation” (taking place around 1841) “continued to focus on medical malpractice and protection of the life and health of the mother from the consequences of abortion.” Id. ***

 Some scholars also suggest that the push for anti-abortion laws that determined fetal life started from conception was a way to standardize the medical profession. Thomas writes: “The lobbying effort to criminalize abortion was spearheaded by the medical profession.” Thomas, supra ¶ 145, at 21. Doctors “claim[ed] pregnancy as an area solely for medical expertise. ... Quickening, the physicians argued, could not be relied upon as an indicator of fetal life because it did not occur at a standard moment.” Id. at 21–22. Reva Siegel writes that “[d]uring the period of the criminalization campaign, the gynecologists and obstetricians of the AMA [American Medical Association] were seeking to appropriate management of the birthing process from midwives, and to prevent women from entering the medical profession.” Reva Siegel, Reasoning from the Body: A Historical Perspective on Abortion Regulation and Questions of Equal Protection, 44 Stan. L. Rev. 261, 300 (1992). The period Thomas and Siegel examine—the 1850s to the 1880s—parallels the founding of the Utah Territory and its development toward statehood. See Thomas, supra ¶ 145, at 21; Siegel, supra at 286 (discussing the AMA's 1859 resolution “condemning abortion as an unwarranted destruction of human life” and the AMA's 1860s campaign to save “the nation from the evils of abortion” (cleaned up)).

Understanding the Original Meaning of Washington v. Glucksberg and its Use in the Dobbs Abortion Decision

Marc Spindelman, Washington v. Glucksberg's Original Meaning

This Article elaborates and defends Washington v. Glucksberg's original meaning both on its own terms and against accounts of Glucksberg that depict it as having announced and followed a strict test of history and tradition as its basic approach to Fourteenth Amendment substantive due process rights.  
 
The nominal occasion for the present return to Glucksberg and its original meaning is the Supreme Court's decision in Dobbs v. Jackson Women's Health Organization. Dobbs famously insists that Glucksberg supplies it with the authoritative grounds in the Court's Fourteenth Amendment substantive due process jurisprudence for its own history-and-tradition-based approach to Roe v. Wade and constitutional abortion rights. As Dobbs figures it, Glucksberg signs the constitutional warrant that Dobbs enforces by overturning Roe.   

Proceeding in stages, the Article traces Dobbs' reliance on Glucksberg before pivoting to a detailed account of Glucksberg's original meaning, which engages and surmounts Dobbs' undefended tally of Glucksberg. Having shown Dobbs' reading of Glucksberg cannot be squared with Glucksberg's text and its meaning--as crosschecked against other Supreme Court decisions, as well as new sources found in the Supreme Court archives--the work explains that Dobbs is also deficient in not providing an independent, full-blown justification, beyond Glucksberg's invocation, for its basic, if contoured, constitutional interpretive method of decision. In context, Dobbs' failure to offer this kind of public accounting, consistent with constitutional and rule-of-law demands, means that Dobbs stands exposed as lawless at its foundations. Dobbs is thus primed for challenge on these grounds, the very terms of legality that Dobbs deploys as it eliminates Roe and constitutional abortion rights.

 

Comstockery: How Government Censorship Gave Birth to the Law of Sexual and Reproductive Freedom

Reva Siegel & Mary Ziegler, Comstockery: How Government Censorship Gave Birth to the Law of Sexual and Reproductive Freedom, and May Again Threaten It, Yale L. J. (forthcoming)

In the aftermath of the overturning of Roe v. Wade, the antiabortion movement has focused on a new strategy: transforming the Comstock Act, a postal obscenity statute enacted in 1873, into a de facto national ban on abortion. Claims on the Comstock Act have been asserted in the medication abortion case now before the Supreme Court and in the campaign for the Presidency. This Article offers the first legal history of the Comstock Act that reaches from its enactment to its post-Dobbs reinvention, offering critical resources for evaluating claims for revived enforcement of Comstock that are now being asserted in courts and in politics. 

The Article's history undermines revivalists' claims about the Comstock statute's meaning and the democratic legitimacy of enforcing the law as they interpret it today. Revivalists read the statute as a plain-meaning, no exceptions nationwide abortion ban when the law Congress enacted in 1873 policed obscenity rather than criminalizing health care. Even the judges who developed the most expansive Victorian understanding of obscenity under the statute protected the doctor-patient relationship. The public's repudiation of this expansive approach to obscenity as "Comstockery"-an illegitimate and overbroad understanding of obscenity that encroached on democracy, liberty, and equality-led to the statute's declining enforcement and to cases in the 1930s affirming that federal obscenity law allowed Americans to protect their health. 

These developments were not only statutory; they were constitutional. From conflicts over Comstock's enforcement emerged popular claims on democracy, liberty, and equality in which we can recognize roots of modern free speech law and the law of sexual and reproductive liberty lost to constitutional memory. Recovering this lost history changes our understanding of the nation's history and traditions of sexual and reproductive freedom.