Gender and the Law Prof Blog

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

Tuesday, April 7, 2020

How the 1918 Flu Pandemic Helped Advance Women's Rights

How the 1918 Flu Pandemic Helped Advance Women's Rights

***One hundred years ago, a powerful strain of the flu swept the globe, infecting one third of the world’s population. The aftermath of this disaster, too, led to unexpected social changes, opening up new opportunities for women and in the process irreversibly transforming life in the United States.

 

The virus disproportionately affected young men, which in combination with World War I, created a shortage of labor. This gap enabled women to play a new and indispensible role in the workforce during the crucial period just before the ratification of the 19th Amendment, which granted women suffrage in the United States two years late

 

Why did the flu affect more men than women?

 
Known as the Spanish flu, the 1918 “great influenza” left more than 50 million people dead, including around 670,000 in the United States.

 

To put that in perspective, World War I, which concluded just as the flu was at its worst in November 1918, killed around 17 million people – a mere third of the fatalities caused by the fluMore American soldiers died from the flu than were killed in battle, and many of the deaths attributed to World War I were caused by a combination of the war and the flu.

 

The war provided near perfect conditions for the spread of flu virus via the respiratory droplets exhaled by infected individuals. Military personnel – predominantly young males – spent months at a time in close quarters with thousands of other troops. This proximity, combined with the stress of war and the malnutrition that sometimes accompanied it, created weakened immune systems in soldiers and allowed the virus spread like wildfire.***

 

It was more than just male conscription in war, however, that led to a greater number of men who were infected and died from the flu. Even at home, among those that were never involved in the war effort, the death rate for men exceeded that of women. Demographic studies show that nearly 175,000 more men died than women in 1918.

 

In general, epidemics tend to kill more men than women. In disease outbreaks throughout history, as well as almost all of the world’s major famines, women have a longer life expectancy than men and often have greater survival rates.

 

The exact reason why men tend to be more vulnerable to the flu than women continues to elude researchers. The scoffing modern term “man flu” refers to the perception that men are overly dramatic when they fall ill; But recent research suggests that there may be more to it than just exaggerated symptoms.

 

Flu Brought More women into the Workforce

 

The worker shortage caused by the flu and World War I opened access to the labor market for women, and in unprecedented numbers they took jobs outside the home. Following the conclusion of the war, the number of women in the workforce was 25 percent higher than it had been previously and by 1920 women made up 21 percent of all gainfully employed individuals in the country. While this gender boost is often ascribed to World War I alone, women’s increased presence in the workforce would have been far less pronounced without the 1918 flu.***

 
Women began to move into employment roles that were previously held exclusively by men, many of which were in manufacturing. They were even able to enter fields from which they had been banned, such as the textile industry. As women filled what had been typically male workplace roles, they also began to demand equal pay for their work. Gaining greater economic power, women began more actively advocating for various women’s rights issues – including, but not limited to, the right to vote.***

 

How the Flu Helped Change People's Minds

 

Increased participation in the workforce allowed many women to obtain social and financial independence. Leadership positions within the workforce could now be occupied by women, especially in the garment industry, but also in the military and police forces. The U.S. even got its first woman governor, when Nellie Taylor Ross took her oath of office, in 1923, in Wyoming. An increased ability to make decisions in their personal and professional lives empowered many women and started to elevate their standing.

 

With the war over and increased female participation in the labor force, politicians could not ignore the critical role that women played in American society. Even President Woodrow Wilson began to argue in 1918 that women were part of the American war effort and economy more broadly, and as such, should be afforded the right to vote.

 

Outside of work, women also became more involved in community decision-making. Women’s changing social role increased support for women’s rights. In 1919, the National Federation of Business and Professional Women’s Clubs was founded. The organization focused on eliminating sex discrimination in the workforce, making sure women got equal pay and creating a comprehensive equal rights amendment.

See also Rebecca Onion, Did We Fail to Memorialize Spanish Flu Because Women Were the Heroes?

And yet, for years, Americans didn’t talk about it much in public. Historians of the flu, starting with Alfred Crosby, whose 1976 book America’s Forgotten Pandemic was the first comprehensive account of the outbreak in the United States, have long wondered at the curious fact that this terrible experience left so little mark on the cultural record. Looking at major American newspapers and political discourse in the years after the flu ended, Crosby found that the whole thing seemed to have vanished without a trace. “The flu never inspired awe, not in 1918 and not since,” Crosby wrote. Crosby notes that the major writers of that generation, who were busy memorializing the experience of the Great War and probing the depths of the “modern” soul, didn’t talk much about the flu either. It was left to a few scattered authors less central to the canon—Katherine Anne PorterWilliam MaxwellThomas Wolfe—to write about the epidemic in the ensuing decades. It wasn’t until the end of the 20th century that American historians and documentarians turned their attention to the pandemic.

 

 

April 7, 2020 in Equal Employment, Legal History | Permalink | Comments (0)

Friday, April 3, 2020

The Map Strategy of State Adoption of Women's Suffrage as Critical to Passage of the 19th Amendment

Really enjoyed the talk by historian Dr. Susan Schulten this morning at the virtual conference, Women's Enfranchisement Beyond the 19th Amendment

Here is a written essay that summarizes some of Dr. Schulten's points.  Susan Schulten, The Crooked Path to Women's Suffrage, Wash. Post.

Schulten discussed the "map strategy" of women's suffrage leaders during primarily the 19 teens.  Leaders used visuals and media to illustrate the acceptance of women's suffrage in the West.  The geographical maps boldly displayed the evolution of thought and the wave of progress moving from west to east. 

This map strategy supports a thesis that the suffrage state strategy was critical to the passage of the federal constitutional amendment.   We often dismiss this state strategy - dominant from 1885 to 1918, - as ineffective.  But Schulten's talk showed the converse.  That not only did the state by state approach work for full or partial suffrage in many states, but that it was this state success that provide the evidence for a federal amendment.  The state progress demonstrated the state experimentation with the issue and decision in favor of such rights as a foundation to bolster the legitimacy of the federal amendment.

As an aside, Schulten also added some facts to the historical question of why President Woodrow Wilson switched from anti suffrage to pro suffrage.  Schulten suggests it was the National American Women's Suffrage Associations (NAWSA's) support of Wilson and WWI  that swayed him to support it.  This was in contrast to Alice Paul and her National Women Party's (NWP) opposition to both Wilson and the war and her militant pickets of the White House in support of women's suffrage.  Kimberly Hamlin also tracks the active lobbying work of Helen Hamilton Gardender, NAWSA's lead lobbyist, as critical to Wilson's shift.  See Free Thinker: Sex, Suffrage, and the Extraordinary Life of Helen Hamilton Gardener (Norton 2020).  Schulten notes that Wilson wrangled the final vote for the 19th Amendment from peace talks at Versailles and as he battled the pandemic Spanish flu. 

April 3, 2020 in Constitutional, Legal History | Permalink | Comments (0)

Tuesday, March 24, 2020

Colorado Law Conference on the 19th Amendment and Women's Enfranchisement Moved Online

From the announcement: 

Please join Colorado Law for the 28th Annual Ira C. Rothgerber Conference, “Women’s Enfranchisement: Beyond the 19th Amendment," which has been modified to take place remotely on Friday April 3rd8:30 a.m. - 5:00 p.m. MT, through the use of a Zoom Webinar. The web-event is free, and has been approved for 6 general CLE credits.

2020 marks the centennial of the 19th Amendment, formally extending suffrage to some, but not all, women, and is a presidential election year with an unprecedented number of female candidates running for offices nationwide. But barriers to both political rights and social, lived equality persist, particularly for women at the intersections of race, sex, and class. This web-based conference will use the centennial to take stock of how far we’ve come—and how far we have to go—in terms of formal political enfranchisement, as well as the social and economic empowerment of women more broadly. 

Register here for the 2020 Rothgerber Conference, to receive important email updates, including the link needed to join the webinar. Participants will be able to use this link to join at any point during the conference. 

For more information on the panels and speakers please visit the CU Law Rothgerber event page.  We look forward to sharing this occasion with you!

Rothgerber Webinar Schedule | April 3, 2020

8:30-9:00am  Introductory Remarks by Suzette Malveaux (CU Law) 

9:00-10:00am  Keynote Address: Reva Siegel (Yale Law)

10:00-10:15am  BREAK

10:15am-12:00pm  PANEL 1

"Historical Perspectives on the 19th Amendment: Looking Back, Looking Forward”

  • Susan Schulten (University of Denver)
  • Carolyn Ramsey (Colorado Law)
  • Julie Suk (CUNY)
  • Mary Ziegler (FSU Law)

12:00-12:15pm  BREAK

12:15-2:00pm  PANEL 2

“Barriers to Political Representation”

  • Bertrall Ross (Berkeley Law)
  • Dara Strolovitch (Princeton)
  • Atiba Ellis (Marquette Law)
  • Ming H. Chen (Colorado Law)

2:00-2:15pm  BREAK

2:15-4:00pm  PANEL 3

“Lived Equality: Beyond Formal Political Rights”

  • Aya Gruber (Colorado Law)
  • Chinyere Ezie (Center for Constitutional Rights)
  • Diana Flynn (Lambda Legal)
  • Scott Skinner-Thompson (Colorado Law) 

4:00-4:30pm  Closing Remarks 

March 24, 2020 in Conferences, Constitutional, Legal History | Permalink | Comments (0)

Thursday, March 19, 2020

Exploring the Idea of a Common Law Right to an Abortion

Joanna Grossman, Women Are (Allegedly) People, Too, 114 Northwestern University Law Review Online 149 (2019)

Professor Anita Bernstein opens her book, The Common Law Inside the Female Body, with a startling “strange bedfellows” argument: William Blackstone and modern American feminists want the same thing. “The common law,” she argues “contains precepts and doctrines that strengthen the freedom of individuals; the feminist struggle against the subjugation of women pursues liberty.” Can this be the same Blackstone who articulated the doctrine of coverture and the severe impediments it imposed on the liberty of married women? His pronouncement that “the husband and wife are one person in law” — and that one is the husband — is the centerpiece of a doctrine that deprived married women of a panoply of civil rights like buying property, entering into contracts, and owning their own wages. These disabilities were lifted by statutes known as the “Married Women’s Property Acts,” but some impediments persisted into the twentieth century. But by the end of the book, Bernstein has made a compelling argument that common law principles, despite an inauspicious start, can “liberate women.” Indeed, there is little if anything in those principles that deprives women of the same rights as men. The common law may have “proceeded as if only men could enjoy its opportunities,” but that, she argues, is due to a “historical condition now supplanted.”

Once women became equal participants in civil society as well as in the justice system, there ceased to exist any basis for restricting the benefit of common-law principles to men. And, oh boy, the common law contains some juicy stuff that really could be deployed to advance the cause of gender equality. This Essay will consider and evaluate Bernstein’s argument that the common law supports a virtually unfettered right to terminate a pregnancy. It will situate her argument against the backdrop of the constitutional right of abortion, which has been the primary lens through which women’s reproductive rights have been viewed. The Essay will then consider the newly composed Supreme Court and the threat it portends to reproductive rights. It concludes by suggesting that the common law, as Bernstein understands it, could come to the rescue of women and their full humanity.

March 19, 2020 in Abortion, Legal History, Reproductive Rights | Permalink | Comments (0)

Wednesday, March 18, 2020

Historical Precedent and Originalism in Support of Recognizing the Equal Rights Amendment Without a Time Limitation

John Vlahoplus, Ratification of the Equal Rights Amendment: Lessons from Special Elections to the House of Representatives in 1837, 95 Indiana J. Supp. (forthcoming)

In 1837 the House of Representatives considered a governor’s attempt to include a limitation in a writ issued to fill a vacancy in representation pursuant to Article I, Section 2 of the federal constitution. The Representatives agreed almost unanimously that the limitation was unconstitutional and should be disregarded as mere surplusage rather than invalidating the writ and the election.

This Article suggests that the similar text of Article V gives Congress only the power to propose amendments, without any limitation, and states the power to ratify amendments or not, without any power to rescind. Consequently, the time limit that Congress purported to impose on ratification of the Equal Rights Amendment is unconstitutional surplusage, and state rescissions are ineffective. Virginia’s ratification on January 15, 2020 pushed the amendment past the three quarters threshold, making it a valid part of the federal constitution. The Article also considers lessons from the subsequent 1837 general elections and suggests that the Supreme Court — rather than Congress — should and likely will ultimately adjudicate the validity of the Amendment’s ratification.

March 18, 2020 in Constitutional, Legal History | Permalink | Comments (0)

Tuesday, March 17, 2020

The Imperfect Metaphor of the Waves of Feminism -- Historically Misleading and Politically Unhelpful

The Waves of Feminism and Why People Keep Fighting Over Them

***People began talking about feminism as a series of waves in 1968 when a New York Times article by Martha Weinman Lear ran under the headline “The Second Feminist Wave.” “Feminism, which one might have supposed as dead as a Polish question, is again an issue,” Lear wrote. “Proponents call it the Second Feminist Wave, the first having ebbed after the glorious victory of suffrage and disappeared, finally, into the sandbar of Togetherness.”

 

The wave metaphor caught on: It became a useful way of linking the women’s movement of the ’60s and ’70s to the women’s movement of the suffragettes, and to suggest that the women’s libbers weren’t a bizarre historical aberration, as their detractors sneered, but a new chapter in a grand history of women fighting together for their rights. Over time, the wave metaphor became a way to describe and distinguish between different eras and generations of feminism.

 

It’s not a perfect metaphor. “The wave metaphor tends to have built into it an important metaphorical implication that is historically misleading and not helpful politically,” argued feminist historian Linda Nicholson in 2010. “That implication is that underlying certain historical differences, there is one phenomenon, feminism, that unites gender activism in the history of the United States, and that like a wave, peaks at certain times and recedes at others. In sum, the wave metaphor suggests the idea that gender activism in the history of the United States has been for the most part unified around one set of ideas, and that set of ideas can be called feminism.”

The wave metaphor can be reductive. It can suggest that each wave of feminism is a monolith with a single unified agenda, when in fact the history of feminism is a history of different ideas in wild conflict.It can reduce each wave to a stereotype and suggest that there’s a sharp division between generations of feminism, when in fact there’s a fairly strong continuity between each wave — and since no wave is a monolith, the theories that are fashionable in one wave are often grounded in the work that someone was doing on the sidelines of a previous wave

March 17, 2020 in Legal History, Theory | Permalink | Comments (0)

Monday, March 9, 2020

New Book: Free Thinker, The Life of Helen Hamilton Gardner, the Lead Congressional Lobbyist for Women's Suffrage

Kimberly Hamlin, Free Thinker: Sex, Suffrage, and the Extraordinary Life of Helen Hamilton Gardner

A story of transgression in the face of religious ideology, a sexist scientific establishment, and political resistance to securing women’s right to vote.

 

When Ohio newspapers published the story of Alice Chenoweth’s affair with a married man, she changed her name to Helen Hamilton Gardener, moved to New York, and devoted her life to championing women’s rights and decrying the sexual double standard. She published seven books and countless essays, hobnobbed with the most interesting thinkers of her era, and was celebrated for her audacious ideas and keen wit. Opposed to piety, temperance, and conventional thinking, Gardener eventually settled in Washington, D.C., where her tireless work proved, according to her colleague Maud Wood Park, "the most potent factor" in the passage of the Nineteenth Amendment.

 

Free Thinker is the first biography of Helen Hamilton Gardener, who died as the highest-ranking woman in federal government and a national symbol of female citizenship. Hamlin exposes the racism that underpinned the women’s suffrage movement and the contradictions of Gardener’s politics. Her life sheds new light on why it was not until the passage of the 1965 Voting Rights Act that the Nineteenth Amendment became a reality for all women.

 

Celebrated in her own time but lost to history in ours, Gardener was hailed as the "Harriet Beecher Stowe of Fallen Women." Free Thinker is the story of a woman whose struggles, both personal and political, resound in today’s fight for gender and sexual equity.

March 9, 2020 in Books, Constitutional, Legal History | Permalink | Comments (0)

Friday, February 28, 2020

Conference: Women's Enfranchisement Beyond the 19th Amendment

Conference, Colorado Law, Women's Enfranchisement Beyond the 19th Amendment

 Beyond the 19th Amendment

 

The Ira C. Rothgerber Jr. Conference on Constitutional Law is an annual Byron R. White Center event that brings scholars and lawyers from across the nation to the University of Colorado Law School for a discussion on a current Constitutional law issue. Topics have included the future of national injunctions, listeners’ First Amendment rights, litigation strategies that promote Constitutional change, and Presidential interpretation of the Constitution.

The 28th Annual Ira C. Rothgerber Conference is titled "Women's Enfranchisement: Beyond the 19th Amendment", and will be held on Friday, April 3rd, 2020 from 8:30am-5:00pm in the Wolf Law Building (2450 Kittredge Loop Dr, Boulder, CO 80305). 2020 will mark the centennial of the 19th Amendment, formally extending suffrage to some, but not all, women, and is a presidential election year with an unprecedented number of female candidates. But barriers to both political rights and social, lived equality persist, particularly for women at the intersections of race, sex, and class.  The 28th Annual Ira C. Rothgerber Conference will use the centennial to take stock of how far we’ve come—and how far we have to go—in terms of formal political enfranchisement as well as the social and economic empowerment of women more broadly.

CLE credit is available for this conference, and both breakfast and lunch will be served to attendees. 

Register Now

 

Schedule

Keynote Address: Reva Siegel (Yale Law)

PANEL 1: “Historical Perspectives on the 19th Amendment: Looking Back, Looking Forward”

Carolyn Ramsey (Colorado Law), Julie Suk (CUNY), Mary Ziegler (FSU Law), Susan Schulten (University of Denver)

PANEL 2: “Barriers to Political Representation”

Dara Strolovitch (Princeton), Atiba Ellis (Marquette Law), Bertrall Ross (Berkeley Law), Justin Levitt (Loyola Law), Ming H. Chen (Colorado Law)

PANEL 3: “Lived Equality: Beyond Formal Political Rights”

Aya Gruber (Colorado Law), Chinyere Ezie (Center for Constitutional Rights), Diana Flynn (Lambda Legal), Cary Franklin (UTexas Law), Scott Skinner-Thompson (Colorado Law) 

 

 

February 28, 2020 in Conferences, Constitutional, Legal History | Permalink | Comments (0)

Friday, February 14, 2020

Book Review of Ellen Carol DuBois, Suffrage: Women's Long Battle for the Vote

Available on Amazon

 

Book Review, How Long Did We Wait?

What if, in the years after the Civil War, the United States Congress had heeded the advice of Elizabeth Cady Stanton and Susan B. Anthony and guaranteed universal suffrage as a basic condition of citizenship—for men and women—black and white? Had the democratic franchise been vastly expanded and administered by the federal government, might modern U.S. history have taken a different turn? Would the rights of all citizens have been safer, and the integrity of elections more secure? Would communities in states across the country be better protected against voter suppression today?

 

In her compelling new history of the U.S. women’s suffrage movement, Suffrage: Women’s Long Battle for the Vote, Ellen Carol DuBois asks us to ponder these provocative questions. Yet she is clear-sighted about how intractable the argument proved to be in its time, and how remote the prospect of women’s suffrage really was in a society governed by entrenched patriarchy and states’ rights.

 

America’s pioneers of racial and gender justice shared many common values and forged deep bonds during the 1850s. Stanton and Anthony participated as anti-slavery organizers, while Frederick Douglass, Sojourner Truth, Lucretia Mott and Lucy Stone endured criticism for supporting the campaign for women’s rights that began at Seneca Falls—not just the right to vote, but also to own property and accumulate wealth, to access higher education and profitable employment, and to marry and divorce freely.

 

Such an expansive human rights vision, however, found no place in the aftermath of a bloody war to defend the union and eradicate slavery.

February 14, 2020 in Books, Constitutional, Legal History | Permalink | Comments (0)

Papers from the Symposium: The 19th Amendment at 100--From the Vote to Gender Equality

The Center for Constitutional Law at the University of Akron School of Law sponsored the conference The 19th Amendment at 100: From the Vote to Gender Equality (including video link of conference).  

Here are some of the papers from the conference: 

Ellen Carol DuBois, The 19th Amendment at 100: From the Vote to Gender Equality: Woman Suffrage: The Afterstory, 11 ConLawNOW 53 (2020)

Gwen Jordan, 19th Amendment at 100: "We Must Forget Every Difference and Unite in a Common Cause - Votes For Women": Lessons From the Woman Suffrage Movement (Or, Before the Notorius RBG, There Were the Notorious RBGs, 11 ConLawNOW (2020)

Ann D. Gordon, More Pathways to Suffrage, Other Than the 19th Amendment, 11 ConLawNOW 91 (2020)

Reva B. Siegel, The Nineteenth Amendment and the Democratization of the Family, Yale L.J. Forum (Jan. 20, 2020).

 

Additional papers from the conference are forthcoming in the Akron Law Review.

 

February 14, 2020 in Conferences, Constitutional, Legal History | Permalink | Comments (0)

Wednesday, January 29, 2020

"Female Monthly Pills": The Coded Language of Abortion in Newspapers and the Law Before Roe

"Female Monthly Pills" and the Coded Language of Abortion Before Roe

Medication abortion is incredibly common in the United States; it’s also incredibly safe. And it’s because of this relative ease and safety, in fact, that conservative states are now targeting it in the same ways they have targeted providers and clinics in recent decades: In 18 states, a provider must be physically present to prescribe abortion medication, a barrier compounded by the fact that nearly 40 percent of women in the U.S. aged 15–44 live in a county without an abortion clinic. A number of states also have laws on the books that criminalize people who terminate their own pregnancies, and “there have been at least half a dozen U.S. cases where women have been arrested and charged after attempting to self-induce an abortion using illicitly obtained abortifacients,” according to the Guttmacher Institute.

It is now 47 years after Roe v. Wade, and we are still someplace we’ve already been. But that sense of familiarity goes back even further than the landmark abortion case: 200 years ago, as medicines and tonics meant to cause abortion were made more accessible through advertising, laws targeted their use as well.

Abortion has gone from being legal to illegal in this country before, and with Roe in jeopardy, advocates for reproductive freedom have forecast a future that looks much like our past, when pills were a major part of abortion access—and an obsessive target for abortion opponents.

The story of abortion regulation and criminalization in the U.S. begins, in some ways, with the sale of abortion pills. Such open business was part of the reason states pushed to pass the first laws governing abortion in the 1820s and 1830s, according to Lauren MacIvor Thompson, historian at Georgia State University and author of the forthcoming Battle for Birth Control: Mary Dennett, Margaret Sanger, and the Rivalry That Shaped a Movement. “But they were mostly only governing the advertising and sale of abortifacient drugs.” The laws were meant to regulate, not to outlaw, abortion, she told me in an email.

 ....

This didn’t quell the demand for abortion—which was not really the point. Neither did criminalization drive abortion fully underground. Into the 1860s and 1870s, New York readers could still learn, however euphemistically, of the alleged effects and availability of “Dr. Vlcaoli’s Italian Female Monthly Pills” or “Chichester’s English Pennyroyal Pills,” in big city and local papers alike, from the New York Evening Telegram to the Syracuse Daily Standard. People using titles like “Professor of Midwifery” or “Professor of Diseases of Women” offered “A Certain Cure,” “safe and healthy,” for “immediate removal of all special irregularities in females, with or without medicine, at one interview.”

H/T Kimberly Hamlin

January 29, 2020 in Abortion, Healthcare, Legal History, Reproductive Rights | Permalink | Comments (0)

New Book: Obstacle Course: The Everyday Struggle to Get an Abortion in America

David Cohen & Carole Joffe, Obstacle Course: The Everyday Struggle to Get an Abortion in America (Introduction)  

Obstacle Course by David S. Cohen, Carole Joffe

Book available here.

It seems unthinkable that citizens of one of the most powerful nations in the world must risk their lives and livelihoods in the search for access to necessary health care. And yet it is no surprise that in many places throughout the United States, getting an abortion can be a monumental challenge. Anti-choice politicians and activists have worked tirelessly to impose needless restrictions on this straightforward medical procedure that, at best, delay it and, at worst, create medical risks and deny women their constitutionally protected right to choose.

This forthcoming book tells the story of abortion in America, capturing a disturbing reality of insurmountable barriers people face when trying to exercise their legal rights to medical services. Authors David S. Cohen and Carole Joffe lay bare the often arduous and unnecessarily burdensome process of terminating a pregnancy: the sabotaged decision-making, clinics in remote locations, insurance bans, harassing protesters, forced ultrasounds and dishonest medical information, arbitrary waiting periods, and unjustified procedure limitations.

Based on patients’ stories as well as interviews with abortion providers and allies from every state in the country, Obstacle Course reveals the unstoppable determination required of women in the pursuit of reproductive autonomy as well as the incredible commitment of abortion providers. Without the efforts of an unheralded army of medical professionals, clinic administrators, counselors, activists, and volunteers, what is a legal right would be meaningless for the almost one million people per year who get abortions. There is a better way—treating abortion like any other form of health care—but the United States is a long way from that ideal.

January 29, 2020 in Abortion, Books, Healthcare, Legal History | Permalink | Comments (0)

Wednesday, January 22, 2020

The Historical and Legal Significance of Virginia's Recent Ratification of the Equal Rights Amendment

In this interview, I offer my thoughts on the history and future of the ERA.

Wisconsin NPR, Central Time, Virginia Just Ratified The Equal Rights Amendment: What Does That Mean?nt-what-does-mean

Virginia’s General Assembly passed the Equal Rights Amendment recently, becoming the 38th state to do so, nearly four decades after a controversial deadline passed. A legal scholar shares the history of the ERA, what the Virginia vote means and where the effort goes from here.

Download

January 22, 2020 in Constitutional, Gender, Legal History, Legislation | Permalink | Comments (0)

The Arguments as to Why the ERA Can Still be Ratified Now–After the Deadline

History of ERA Passage

The Equal Rights Amendment (ERA) was passed by Congress in 1972. The original Amendment contained a 7-year deadline in the preamble to the resolution reaching to 1979.  Congress extended the deadline to 1982.  President Carter signed the extension as a symbolic gesture, as the Constitution gives the President no formal role in amending the Constitution. The Office of Legal Counsel at the time opined that Congress had the power to grant the extension as a procedural move by majority vote.  See Memorandum for Robert J. Lipshutz, Counsel to the President, from John M. Harmon, Assistant Attorney General, Office of Legal Counsel, Re: Constitutionality of Extending the Time Period for Ratification of the Proposed Equal Rights Amendment (Oct. 31, 1977). 

Only 32 states ratified the ERA by 1982—3 states shy of the 38 required by the Constitution of ¾ of the states.  Momentum from the Women’s Marches, #MeToo movement, and the 2016 Presidential election triggered renewed interest in an equal rights amendment.  Nevada then ratified the ERA in 2017, Illinois in 2018, and Virginia in 2020, thus now reaching the 38 states.  Five states (Idaho, Kentucky, Nebraska, Tennessee, and South Dakota) attempted to rescind their ratification in the late 1970s.

Current Challenges to ERA Ratification

In December 2019, three Attorney Generals, two from states that never ratified the ERA (Alabama and Louisiana), and one that attempt to rescind (South Dakota) sued in federal court in the Northern District of Alabama to prevent the National Archivist from recording the ERA, arguing that the deadline had expired and that the rescinded votes could not be counted.  Alabama v. Ferriero (N.D. Ala., filed Dec. 16, 2019).  They also argued that the ERA would hurt women, undermine state sovereignty, and threaten anti-abortion laws, expand to LGBT rights, and invalidate gender segregation in schools, prisons, sports, and domestic violence shelters.

The National Archivist sought an opinion from the Office of Legal Counsel as to the status of the ERA.  Office of Legal Counsel, Memorandum, Ratification of the Equal Rights Amendment (Jan. 2020)  The OLC opinion issued in January 2020 advised that Congress did not have the authority to modify the original deadline, disagreed with the prior 1977 OLC opinion supporting extension, and declined to issue an opinion on rescission.

Arguments in Support of Ratification Today

So what do proponents of ERA say?  There are good arguments that the ERA remains open for ratification now, despite the past deadlines, and does not require a complete restart of the amendment and ratification process.  

1.  The original deadline is not mandatory.

        a.      Deadlines are not required for constitutional amendments.  The first 17 amendments did not have a deadline.

        b.      The deadline is contained in the preamble to the resolution, and not the text of the amendment itself, and therefore   is not binding as part of the ratification.

        c.    The Supreme Court’s decision in Dillon v. Gloss, 256 U.S. 368 (1921) upholding Congress’s power to attach deadlines to constitutional amendments, is incorrect.  In Dillon, the Court addressed a challenge to the deadline added for the first time for the Eighteenth Amendment for prohibition.

                i.  The textual basis for the Court’s holding stemming from Article V of the Constitution is incorrect.  Congress’s power to determine the “mode of resolution” means only that Congress can decide whether to amend the Constitution by Congressional proposal or state legislative convention. 

                ii.  Dillon’s conclusion that amendments implicitly require “contemporaneity” was disproven by the 27th Amendment which passed in 1992 after pending for over 200 years.  The 27th Amendment prohibits Congress from voting itself pay raises, requiring an intervening election before such raises take effect.  It was originally proposed in 1789 as the Second Amendment.  While the 27th Amendment did not include an express deadline, its long open ratification period contradicts the Supreme Court’s holding that all amendments must be passed in relatively short time period.

2.  Congress has the power to modify the deadline

        a.     The deadline is merely a procedural adjunct to the amendment, which Congress can modify, extend, or nullify.  As a procedural matter, only a majority of the congressional houses is required.

        b.      The 1977 OLC decision concluded that Congress has the power to extend and thus alter initial deadlines.

        c.      The Supreme Court held in Coleman v. Miller, 307 U.S. 433 (1939), that in the absence of a deadline, Congress may determine after receiving 38 ratifications whether too much time has passed.  In Coleman, the Child Labor Amendment was pending for thirteen years.  It did not include a deadline. The Supreme Court held that Congress had the authority to determine matters of time and expiration, after ratification by 38 states. 

        d.     Coleman also held, in fractured opinions, that the question of a reasonable time for ratification is a non-justiciable political question, left to Congress and not the courts.

Rescinded Ratifications

If the deadline does not apply, then the question is whether states can rescind their past ratification.  The precedent of the Fourteenth Amendment suggests no.  Several states which had ratified the 14th Amendment attempted to rescind their vote. The National Archivist and Congress refused to accept the rescissions, essentially finding them to be irrevocable. 

In the context of the ERA, a federal district court in Idaho concluded that states could rescind their votes.  Idaho v. Freeman, 529 F. Supp. 1107 (D. Idaho 1981); but see John Carol Constitutional Amendment: Idaho v. Freeman, 16 Akron Law Rev. 151 (1983) (arguing Freeman was wrongly decided).  The decision was appealed, and granted cert by the Supreme Court, but was dismissed as moot after expiration of the 1982 deadline.

January 22, 2020 in Constitutional, Gender, Legal History, Legislation, SCOTUS | Permalink | Comments (0)

Monday, January 13, 2020

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

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


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

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

January 13, 2020 in Business, Family, Legal History | Permalink | Comments (0)

Monday, December 9, 2019

Theme for March for Life 2020 Relies on Questionable Women's History, Incorrectly Claiming Early Feminist Leaders as Pro-Life

The old claims that feminist suffrage leaders like Elizabeth Cady Stanton, Susan B. Anthony, and Alice Paul were pro-life, are getting dusted off and used as the basis for pro-life advocacy, seeking a connection to the 2020 centennial of women's suffrage.  One problem, however, is that they are not true. 

March for Life 2020 Theme Pays Tribute to Pro-Life View of Early Feminists

Organizers of the March for Life have chosen "Life Empowers*: Pro-Life Is Pro-Woman" for the 2020 rally and march in Washington.

 

In embracing the theme, Jeanne Mancini, president of the March for Life Education Fund, cited the coming centennial of the 19th Amendment, which gave women the right to vote, and the views of early suffragists, including the best-known figure of the movement, Susan B. Anthony.***

 

Leaders of the suffrage movement, Mancini said, knew that "mothers and babies were not at odds with each other." Citing Alice Paul, leading strategist of the 19th Amendment, Mancini said Paul "referred to abortion as "the ultimate exploitation of women."

 

This was reinforced by another panelist, Serrin Foster, president of Feminists for Life, who said early American feminists condemned abortion "in no uncertain terms."

 

Abortion, Foster said, "was constantly referred to as child murder," and it was a frequently discussed topic in the feminist newspaper edited by Elizabeth Cady Stanton and to Anthony, the best known feminist leader of her age, was a frequent contributor.

 

A page on the website of the Susan B. Anthony House and Museum in Rochester, New York, disputes the notion Anthony can be considered a heroine to the pro-life movement, insisting her writings for the paper, called The Revolution, were mostly appeals to support the publication.

Similar claims have been made by the pro-life movement since the mid-1990s, in prior political campaigns, in college recruitment --  and in amicus briefs to the U.S. Supreme Court.  This is not merely political rhetoric, but is being used as historical evidence to advocate for legal truth in the courts of law. 

I've written extensively to dispute this claim, particularly the claim of pro-life as applied to pioneering feminist leader Elizabeth Cady Stanton.  See Tracy A. Thomas, Misappropriating Women's History in the Law and Politics of Abortion, 36 Seattle L. J. 1 (2012);  Tracy A. Thomas, Elizabeth Cady Stanton and the Feminist Foundations of Family Law, chp. 5 (NYU Press 2016).

As I explained the general context:  

The appeal to historical figures in the abortion debate is powerful because it utilizes the gravitas of feminist  heroines to challenge the existing legal and political assumption that abortion is a cornerstone of sex equality. The use of feminist leaders suggests that women themselves, even radical feminist women like Elizabeth Cady Stanton and Susan B. Anthony, have traditionally opposed abortion.  If these feminist leaders indeed opposed abortion, the historical story would seem to bolster the claim that abortion is not in the best interests of women.

 

The need to create a history of antiabortion feminists seems important today because abortion has come to be equated with women’s rights. Since the second wave of the women’s liberation movement in the late 1960s, feminists have identified abortion as a foundational right for women upon which all other economic and educational rights rest. The appeal to feminist history by prolife advocates offers a counter-narrative in which women dedicated to improving the economic and educational rights of women reject abortion as a  gender-based right. This story of women leaders opposing abortion is thus aimed at undermining the prevailing feminist and legal view that a woman’s right to bodily autonomy and reproductive choice is a privacy right of constitutional dimension going to the heart of gender equality.

 

The lack of popular knowledge about the lives and work of women’s rights leaders facilitates the co-opting of the historical feminist narrative by antiabortion activists. Most people, politicians, and policymakers lack a familiarity with these women’s lives or their work, much less the details of their philosophies and speeches. It is therefore easy to make the claim that a feminist leader had a particular belief because few are able to challenge it.

Despite the ease and utility of creating a feminist history against abortion, the narrative is simply not true.

 The evidence alleged of Stanton's position is meager, a handful of quotes, only 2 of which can be attributed to Stanton, and the two do not endorse a pro-life stance.  The other anonymous articles published in Stanton's newspaper were more likely written by, and selected by, the male managing editor of the paper, Parker Pillsbury, a former minister who was on the record as opposing abortion (although against criminalization of it). 

What Stanton did talk about was women's reproductive choice, and voluntary motherhood.  Maternity was woman's sole choice, unrestricted by men or government.  Stanton also took up the public defense of Hester Vaughn, a young woman convicted of infanticide.  Her extensive writings on both these subjects reveal a strong support for women's autonomy and choice in reproduction, a precursor to the modern pro-choice movement.

As to Susan B. Anthony, scholars of her life and work -- eminent historians Ann Gordon, Lynn Sherr, Stacy Schiff, and Christine Stansell, all strongly refuted that Anthony was pro-life, or said much of anything about it at all. These historians concluded that “Anthony spent no time on the politics of abortion. It was of no interest to her despite living in a society (and a family) where women aborted unwanted pregnancies.”

As I concluded: 

It is simply not the case that nineteenth-century feminist leaders expressed explicit and unanimous support for the criminalization of abortion because of the concern of the morality of prenatal life. . . . [T]he few feminist voices joining the periphery of the abortion debate did not support the regulation of abortion. Instead, these writers defended women against the abortion campaign’s attack and shifted the moral blame to men and to society’s oppression of women. What feminists did unanimously endorse was voluntary motherhood and the right of women to control procreation through abstinence. Stanton expanded on this idea, arguing for a woman’s right to be the “sovereign of her own person,” which meant the right to choose when and under what conditions she would become pregnant. Stanton empathized with women who had unwanted pregnancies and argued against a legal system that imposed punishment upon women for infanticide. This advocate of women’s individual right to control makes an unlikely leader for today’s antiabortion movement.

December 9, 2019 in Abortion, Constitutional, Legal History | Permalink | Comments (0)

Wednesday, December 4, 2019

The Racialized and Sexually Exploitive US Citizenship Transmission Laws

Blanche Cook, Johnny Appleseed: Citizenship Transmission Laws and a White Heteropatriarchal Property Right in Philandering, Sexual Exploitation, and Rape (the 'WHP') or Johnny and the WHP, 31 Yale J. Law & Feminism (2019) 

Title 8, United States Code, Section 1409—one of this country’s citizenship transmission laws—creates a white hetero-patriarchal property right in philandering, sexual exploitation, and rape (the “WHP”). Section 1409 governs the transmission of citizenship from United States citizens to their children, where the child is born abroad, outside of marriage, and one parent is a citizen and the other is not. Section 1409, however, draws a distinct gender distinction between women and men: An unwed female American citizen who births a child outside the United States, fathered by a foreign man, automatically transmits citizenship to her child. An unwed male American citizen, by contrast, who fathers a child abroad with a foreign woman has the distinctly male prerogative to either grant or deny citizenship to his foreign-born non-marital child at his leisure.

On the surface, it might appear that § 1409 treats men and women differently because it is easy to determine a child’s mother, as opposed to a child’s father, at birth. In fact, a majority of the Supreme Court has deployed these “natural” differences between men and women to shield § 1409 from three separate gender-based equal protection challenges. Justice Ginsburg, however, has keenly observed, “History reveals what lurks behind § 1409.” What lurks behind § 1409 is a long legacy of white hetero-patriarchy deploying the legal category of citizenship to perfect sovereignty in itself and vulnerability in “foreign” women for the very purpose of sexual domination.

The historical model for this racialized regime of sexual domination is the classic case of Dred Scott, where the denial of citizenship to anyone of African descent further facilitated a white hetero-patriarchal property right in philandering, sexual exploitation, and rape. In Dred Scott, the exclusion of anyone of African descent from person-hood, through the legal mechanism of citizenship, perfected power in white men and vulnerability in racialized others. By excluding anyone of African descent from citizenship, enslaved owners continued to enjoy an unbridled property right in the use and enjoyment of the enslaved. The denial of citizenship to the enslaved facilitated their use as property. Following suit, § 1409 makes citizenship the property of men, through which they can exclude their non-marital foreign-born children from membership in the American polity. Section 1409 vests in these fathers not just a right to exclude their children, but to discard them, leaving them profoundly vulnerable to the sting of “illegitimacy,” ethnic and racial animus, and financial precarity — a form of destruction, while simultaneously empowering these fathers to sexually possess, control, use, and enjoy foreign women. Section 1409 understands all too well: in order to sexually exploit the mother, one must control the status of the child.

December 4, 2019 in Gender, International, Legal History, Race | Permalink | Comments (0)

The Potential Persuasive Influence of the Feminist Judgments Project on Judicial Decision Making

Kate Webber Nunez, Persuasive or Pipe Dream? The Feminist Judgments Project's Potential Influence on Judicial Decision Making, British Journal of American Legal Studies (Vol. 9 2020 Forthcoming)

The Feminist Judgments Project (“FJP” or the “Project”) rewrites existing judicial opinions from a feminist perspective. This article explores whether and how the FJP’s alternative jurisprudence can influence future decisions. The FJP rewrites the law in order to reveal the underlying biases that exist in purportedly neutral decision making. In doing so, the FJP seeks to influence future advocacy and, ultimately, change the law. According to the Project’s commentary, this change will come by revealing unconscious bias and opening judicial minds to previously unknown perspectives; a method that draws on psychological theories of decision making, such as cultural cognition. This article takes a different approach and evaluates the FJP using theories from political science on how judges decide cases. The article’s analysis is relevant because certain prominent theories in the political science field would challenge the utility of the Project. Specifically, given an increasingly conservative judiciary and Republican administration, the attitudinal and strategic theories of decision making would give the FJP little prospect of actually influencing the law. This article explains, however, that the field of political science would not universally nor completely dismiss the Project’s efforts. An alternative line of thought, historical institutionalism, presents a theoretical explanation for why and how the FJP’s re-envisioned law could possibly create persuasive arguments that will influence the judiciary. This article applies historical institutionalist concepts to the FJP, exploring how, and the degree to which, this view of decision making supports the Project’s utility. Ultimately, it concludes that the path of persuasion is somewhat narrow and limited, but possible.

December 4, 2019 in Courts, Legal History, Theory | Permalink | Comments (0)

AALS Programs on the History and Modern Implications of the 19th Amendment

Legal History Section, A Century of Women's Suffrage

2020 marks one hundred years since the Nineteenth Amendment was ratified, ushering in a century of women's suffrage in the United States. This program brings together scholars writing on the history of women's suffrage, including scholars who will explore the suffrage movement that culminated in the Nineteenth Amendment; address how the Nineteenth Amendment affected political parties in the subsequent century; and compare the women's suffrage movement to analogous social movements.

Speaker: Dr. Martha S. Jones, Johns Hopkins University

Speaker from a Call for Papers: Elizabeth D. Katz, Washington University in St. Louis School of Law

Speaker: Holly McCammon, Vanderbilt University Law School

Speaker from a Call for Papers: Kara W. Swanson, Northeastern University School of Law
 
Moderator: Evan C. Zoldan, University of Toledo College of Law
 
 
Women in Legal Education, A Century Since Suffrage: How Did We Get Here? Where Will We Go? How Will We Get There?
This session 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, care taking, 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.
Speaker from a Call for Papers: Lolita K. Buckner Inniss, SMU Dedman School of Law
Speaker from a Call for Papers: Nan D. Hunter, Georgetown University Law Center
Speaker from a Call for Papers: Leslie G. Jacobs, University of the Pacific, McGeorge School of Law
Moderator: Rona Kaufman, Duquesne University School of Law
Speaker from a Call for Papers: Diane J. Klein, University of La Verne College of Law
Speaker from a Call for Papers: Danaya C. Wright, University of Florida Fredric G. Levin College of Law
 
 
Constitutional Law Section:. The Constitution and the Modern Right to Vote

In honor of the 100th anniversary of the Nineteenth Amendment and the 150th anniversary of the Fifteenth, the Constitutional Law Section is putting on a joint program with the Section on Election Law (co-sponsored by the Section on Legal History). The program will run from 2 pm – 5 pm on Thursday, January 2nd in Virginia Suite C.

The overall program is described as follows:

While the constitutional amendments related to voting rights have suggested that all citizens ought to be included in the franchise, the modern right to vote has nonetheless been heavily contested. The efforts to meaningfully include all citizens in the franchise in the century after the Nineteenth Amendment (and the 150 years after the Fifteenth Amendment) have been complicated, fraught, and have often diverged from the underlying idea of inclusion. Tensions still exist in modern voting rights law regarding the meaning of the right to vote, as illustrated by the litigation and activism around issues such as partisan and racial gerrymandering, voter identification, and proof of citizenship requirements. These examples reveal the complexities of the project of democratic inclusion, and this panel will explore how those complexities have evolved and are manifest in today’s right-to-vote doctrine.

Panel 1 (2:00 pm - 3:30 pm): This panel will explore the Nineteenth Amendment’s role in constitutional interpretation both inside and outside of the courts in the century after suffrage.

Speakers:   

Steven Calabresi, Northwestern University Pritzker School of Law
Paula A. Monopoli, University of Maryland Francis King Carey School of Law (selected from a Call for Papers)
Reva B. Siegel, Yale Law School
Julie C. Suk, The Graduate Center, City University of New York

Moderator:  Louis J. Virelli III, Stetson University College of Law

 

December 4, 2019 in Conferences, Constitutional, Gender, Law schools, Legal History | Permalink | Comments (0)

Wednesday, November 20, 2019

The History of Constitutional Amendments for Women's Equality, from the 16th to the 19th to ERA

Here is a short piece I wrote for the American Bar Association's public education online magazine:

Tracy Thomas, From the 19th Amendment to ERA: Constitutional Amendments for Women's Equality, ABA Insights (Nov. 2019)

The Nineteenth Amendment to the U.S. Constitution guaranteeing women’s right to vote was passed by Congress one hundred years ago on June 4, 1919. Many[JD1]  states quickly ratified the amendment, though it would be a close call when the final state, Tennessee, pushed the amendment into law in August 2020. When first proposed, the vote or “suffrage” was just one of many civil and social rights demanded by women. But it became the primary focus of the women’s rights movement in the late nineteenth and early twentieth centuries, fueled by political allegiances with conservative temperance women and supported by focus on the vote as the primary right of citizenship as embodied in the new Fourteenth and Fifteenth Amendments. 

One year after the passage of the Nineteenth Amendment, women’s rights leaders resurrected the demands for gender equality in aspects of society by proposing the first Equal Rights Amendment (ERA) in 1921. The ERA would have guaranteed that civil and legal rights cannot be denied “on the basis of sex.” From the beginning, however, the ERA was met with opposition including from women themselves, with conservative women concerned about impact on the family and progressive women concerned about impact on labor and union rights. It would take another fifty years before both national political parties would endorse the ERA, and Congress passed the ERA in 1972 guaranteeing that “Equality of rights under the law shall not be denied or abridged by the United States or by any state on account of sex.” The necessary two-thirds of the states, however, failed to ratify the ERA, even after an extension of the deadline. 

A modern movement has renewed efforts to pass the ERA, still believing in the necessity of a constitutional guarantee of the broad legal and social equality of women first advanced 171 years ago. This essay traces the history of the women’s constitutional demands for equality, from its origins in Seneca Falls, the adoption of the Nineteenth Amendment, the proposed ERA, and modern efforts for a new amendment to secure gender equality.

November 20, 2019 in Constitutional, Gender, Legal History | Permalink | Comments (0)