The Right’s Reasons: Constitutional Conflict and the Spread of Woman-Protective Anti-Abortion Argument

The Lecture offers a provisional first account of the rise and spread of WPAA. It traces the development of gender-based antiabortion advocacy, examining the rise of post-abortion syndrome (PAS) claims in the Reagan years and the first struggles in the antiabortion movement about whether the right to life is properly justified on the ground of women’s welfare. My story then follows changes in the abortion-harms-women claim, as it is transformed from PAS—a therapeutic and mobilizing discourse initially employed to dissuade women from having abortions and to recruit women to the antiabortion cause—into WPAA, a political discourse forged in the heat of movement conflict that seeks to persuade audiences outside the movement’s ranks in political campaigns and constitutional law. I tell a story in which social movement mobilization, coalition, and conflict each play a role in the evolution and spread of this constitutional argument, in the process forging new and distinctly modern ways to talk about the right to life and the role morality of motherhood in the therapeutic, public health, and political rights idiom of late twentieth-century America

Compelling Interests and Contraception

On the eve of Griswold v. Connecticut’s fiftieth anniversary, employers are bringing challenges under the Religious Freedom Restoration Act (RFRA) to federal laws requiring them to include contraception in the health insurance benefits that they offer their employees. In Burwell v. Hobby Lobby Stores, five Justices asserted that the government has compelling interests in ensuring employees access to contraception, but did not discuss those interests in any detail. In what follows, we clarify those interests by connecting discussion in the Hobby Lobby opinions and the federal government’s briefs to related cases on compelling interests and individual rights in the areas of race and sex equality. The government’s compelling interests, we argue, are best understood from within two horizons: they encompass not only core concerns of the community in promoting public health and facilitating women’s integration in the workplace, but also crucial concerns of the employees who are the intended beneficiaries of federal law’s contraceptive coverage requirement—interests that sound in bodily integrity, personal autonomy, and equal citizenship. Further, as we show, a full accounting of the government’s compelling interests attends both to their material and expressive dimensions. This more comprehensive account of the government’s compelling interests in providing employees access to contraception matters both in political debate and in RFRA litigation as courts determine whether the government has pursued its interests by the least restrictive means. The more comprehensive account offered here is less susceptible to compromise and tradeoffs than is an account focused only on material interests in public health and contraceptive cost

Contraception as a Sex Equality Right

Challenges to federal law requiring insurance coverage of contraception are occurring on the eve of the 50th Anniversary of the U.S. Supreme Court’s decision in Griswold v. Connecticut. It is a good time to reflect on the values served by protecting women’s access to contraception. In 1965, the Court ruled in Griswold that a law criminalizing the use of contraception violated the privacy of the marriage relationship. Griswold offered women the most significant constitutional protection since the Nineteenth Amendment gave women the right to vote, constitutional protection as important as the cases prohibiting sex discrimination that the Court would decide in the next decade—perhaps even more so. Griswold is conventionally understood to have secured liberty for women. But the right to contraception also secures equality for women, as Ruth Bader Ginsburg saw clearly in the 1970s and as the Court eventually would explain in Planned Parenthood v. Casey

Discrimination in the Eyes of the Law: How “Color Blindness” Discourse Disrupts and Rationalizes Social Stratification

I am quite pleased to have this opportunity to comment on Robert Post\u27s provocative Lecture, Prejudicial Appearances. Post\u27s effort to distinguish the dominant conception of antidiscrimination law from what he presents as a sociological account of the field intersects in striking ways with my own efforts to analyze status relations and their disestablishment from a sociohistorical vantage point. In this Response, I would like to identify some key points of similarity and difference in our accounts, with a view to furthering consideration of what we might learn from a sociological approach to the field

Home As Work: The First Woman\u27s Rights Claims Concerning Wives\u27 Household Labor, 1850-1880

When the American feminist movement is discussed in legal circles, conversation often proceeds as if women first organized to seek equality during our lifetimes. But it was in the years before the Civil War that a woman\u27s rights movement first demanded equality at law. Those who do acknowledge the existence of this early woman\u27s rights movement generally assume that its demands were satisfied long ago, with the reform of marital status law and the amendment of the Constitution to allow women to vote. Yet, as the remarks of Antoinette Brown Blackwell suggest, nineteenth-century feminists raised questions in their time that are still alive in our own. This Article examines a nineteenth-century feminist claim that legislatures refused to recognize and historians have since overlooked: the claim that wives were entitled to property rights in their household labor. In exploring the life and demise of this rights discourse, I offer a political history of housework at the dawn of the industrial era, and an account of the earliest feminist politics of women\u27s work

Dignity and the Politics of Protection: Abortion Restrictions Under Casey/Carhart

This essay on the law and politics of abortion analyzes the constitutional principles governing new challenges to Roe. The essay situates the Court’s recent decision in Gonzales v. Carhart in debates of the antiabortion movement over the reach and rationale of statutes designed to overturn Roe—exploring strategic considerations that lead advocates to favor incremental restrictions over bans, and to supplement fetal-protective justifications with womanprotective justifications for regulating abortion. The essay argues that a multi-faceted commitment to dignity links Carhart and the Casey decision on which it centrally relies. Dignity is a value that bridges communities divided in the abortion debate, as well as diverse bodies of constitutional and human rights law. Carhart invokes dignity as a reason for regulating abortion, while Casey invokes dignity as a reason for protecting women’s abortion decisions from government regulation. This dignity-based analysis of Casey/Carhart offers principles for determining the constitutionality of woman-protective abortion restrictions that are grounded in a large body of substantive due process and equal protection case law. Protecting women can violate women’s dignity if protection is based on stereotypical assumptions about women’s capacities and women’s roles, as many of the new woman-protective abortion restrictions are. Like old forms of gender paternalism, the new forms of gender paternalism remedy harm to women through the control of women. The new woman-protective abortion restrictions do not provide women in need what they need: they do not alleviate the social conditions that contribute to unwanted pregnancies, nor do they provide social resources to help women who choose to end pregnancies they otherwise might bring to term. The essay concludes by reflecting on alternative—and constitutional—modes of protecting women who are making decisions about motherhood

Abortion and the Woman Question : Forty Years of Debate

Today we equate constitutional democracy with the basic principle that every adult citizen is entitled to vote, but this was not true at the founding. At the founding voting was a privilege possessed by the few, not the many. And it was a privilege possessed by men, not women. It took seventy-five years of debate for women to secure the right to vote during which time the question of woman suffrage was referred to simply as the woman question. The debate over woman suffrage was referred to as the woman question because the debate over woman suffrage raised fundamental questions about women\u27s roles, nature, and place in the constitutional order. Voting is no longer the site of struggle over the woman question. Yet this society has not settled the woman question. Instead, it has continued to debate the woman question in new contexts. For the last four decades, abortion has been the site of struggles over the woman question, just as, for decades, schools were the site of struggles over the race question, or today the institution of marriage is the site of struggles over the standing of gays and lesbians. This lecture commemorates Roe\u27s fortieth anniversary by reconstructing how the woman question became entangled in the abortion debate in the twentieth century