In 1937, New York passed a law allowing women to exclude themselves from jury duty to avoid being sequestered in a room with men or forced to hear “sordid evidence.” At least they could serve if they wanted to: In Florida, women weren’t allowed to be on juries until 1949—and even then, women who wished to serve had to register their willingness to undergo “the embarrassment of hearing filthy evidence.” During these same years, many states gave men total legal authority over their wives, forbidding married women from entering contracts or owning property alone. As their wives’ legal protectors, husbands were expected to defend their wives against violence, especially sexual assault, by other men. The flip side of this rule was that husbands were allowed to rape their wives with impunity; in America, marital rape only became a crime in the 1970s and was not banned in every state until 1993.
In an amicus brief recently submitted to the Supreme Court, 16 historians recount this distressing history to make a simple point: When men pass laws purporting to protect women by limiting their liberty, the courts have a duty to scrutinize their true purpose and effect. The brief takes aim at Texas’ new draconian abortion laws (often called HB2), under scrutiny in Whole Women’s Health v. Cole, which place onerous burdens on abortion clinics and providers and would shut down all but a handful of clinics in the state. (The bill declares that it is designed to “protect the health and safety of a patient of an abortion facility.”) Using HB2 as its anchor, the brief gives the current abortion debate much-needed context, examining centuries of sexist laws to demonstrate why the Texas statute is best understood as a paternalistic, unconstitutional encroachment upon women’s fundamental rights.
Before the 20th century, most states severely limited women’s autonomy with a legal doctrine called coverture. William Blackstone, a key source of authority for early American lawmakers, explained coverture by describing how, when a woman marries, “the very being or legal existence of the woman is suspended during the marriage, or at least is incorporated and consolidated into that of the husband: under whose wing, protection, and cover, she performs every thing.” Blackstone believed—and states widely agreed—that women are naturally weak and mentally frail. Coverture may impose “disabilities” on women, Blackstone admitted, but these disabilities were “intended for her protection and benefit.”
Thanks largely to coverture, married women surrendered their legal independence. But women couldn’t maintain their rights by remaining single, as they had few to begin with. In most states, women couldn’t vote or serve in public office. (They would only vote as their husband told them to, legislators reasoned, so women’s suffrage would merely give married men two votes.) Nor could they serve on juries—though they could be convicted of crimes, meaning female defendants were tried before juries of men. In many states, women couldn’t practice law: Affirming Illinois’ bar on female lawyers, the Supreme Court wrote in 1872 that “[m]an is, or should be, woman’s protector and defender. The natural and proper timidity and delicacy which belongs to the female sex evidently unfits it for many of the occupations of civil life.”
Then came the labor laws. Between the 1890s and the 1930s, courts invalidated statutes regulating the workplace—like minimum wage and maximum hours—on the theory that they violated the constitutional “liberty of contract.” But thanks largely to the work of then-attorney Louis Brandeis, the Supreme Court upheld laws restricting only female labor. The justices theorized that women were more vulnerable and delicate than men, more at risk of exploitation, and needed special protections so they could eventually fulfill their role as mothers.
Those rulings are widely remembered today as a progressive victory, but their overall benefit to women is questionable. Once they were granted the authority to restrict women’s working rights, many states used their power to prevent women from competing with men for employment. By one estimate, female-specific protective laws cost 60,000 women their jobs. In New York, the iron molders union persuaded the Legislature to bar women from working alongside men, and to regulate the weight of objects they could handle, all for their protection. (The result: Women couldn’t be iron molders.) New York also prohibited women from working night hours as pharmacists, a well-paying job coveted by men. The state maintained that night shifts posed unique dangers to women—while allowing them to work night hours in hotels, restaurants, and cabarets, positions most men didn’t want. In 1945, Michigan forbade women from working as bartenders in big cities unless they were the wives and daughters of male bar owners. The state claimed that bars were a dangerous place for women to work, yet allowed them to work as waitresses in the same establishments. It was likely not a coincidence that many men wanted to serve as bartenders and not as servers.
Echoing the rationale of midcentury Michigan and New York, Texas now contends that HB2’s incredibly strict abortion regulations are necessary for women’s protections. The brief’s authors don’t pass judgment on Texas’ insistence that the law is designed to protect women, not curb their constitutional liberty. (Although the evidence is stinging: After the bill passed the Senate, Lt. Gov. David Dewhurst retweeted a graphic saying the bill would “essentially ban abortion statewide,” then declared, “We fought to pass SB5 thru the Senate last night, & this is why!”) Instead, the historians explain that “even when protection is a genuine goal, not a pretext, and even where an apparently protective regulation in theory might serve to safeguard health, such laws may function in practice to limit women’s freedom and autonomy”:
The history recounted here suggests that protective rationales may obscure the real effects of laws that ostensibly regulate women’s health and safety. … Texas regulations on abortion clinics, whether or not they are genuinely intended to protect women’s health, should be carefully examined for the actual burdens they place on women.
The brief concludes that HB2’s burdens, even if justified by sex-based concerns, constitute an illegal infringement upon Texan women’s fundamental rights.
It’s an interesting theory, one with deep roots in American legal history that will surely appeal to the court’s liberals. The problem is that the swing justice in this (and every) case, Anthony Kennedy, seems to view women the same way that 19th-century legislators did. Kennedy notoriously proclaimed in a 2007 ruling that some forms of abortion may be banned to protect women from their own desires. In one passage, Kennedy wrote: “While we find no reliable data to measure the phenomenon, it seems unexceptionable to conclude some women come to regret their choice to abort the infant life they once created and sustained.” Note: There is “no reliable data” because it is not true.
In response, Justice Ruth Bader Ginsburg pointed out that “this way of thinking reflects ancient notions about women’s place in the family and under the Constitution—ideas that have long since been discredited.” As evidence, she cited those now-overturned rulings protecting (or excluding) women from the workplace. But Ginsburg was in dissent; Kennedy, writing for the majority, was unconvinced. Let’s hope that the Kennedy of 2016 is more concerned about state efforts to “protect” women from making decisions about their reproductive systems.