The Boundaries of Her Body: The Troubling History of Women's Rights in America

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OUNDARIES

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T

he Troubling

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istory of

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B

OUNDARIES

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The Troubling History of

Women’s Rights in AMERICA

Debran Rowland

Attorney at Law

Copyright © 2004 by Debran Rowland

Cover and internal design © 2004 by Sourcebooks, Inc.

Cover photo © Photonica

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All rights reserved. No part of this book may be reproduced in any form or by any electronic or mechanical means including information storage and retrieval systems—except in the case of brief quotations embodied in critical articles or reviews—without permission in writing from its publisher, Sourcebooks, Inc. ® Purchasers of the book are granted a license to use the forms contained herein for their own personal use. No claim of copyright is made in any government form reproduced herein.

First Edition, 2004

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Library of Congress Cataloging-in-Publication Data Rowland, Debran.

T

he boundaries of her body : the throubling history of women's rights in America / by Debran Rowland.-- 1st ed.

p

. cm.

I

ncludes index.

I

SBN 978-1-4022-3215-2

1

. Women--Legal status, laws, etc.--United States--History. I. Title.

KF478.R69 2004

342.7308'78--dc22

2004004012

Printed and bound in the United States of America.

LB 10 9 8 7 6 5 4 3 2 1

DEDICATION

This book is dedicated to the three men in my life:

Luke, Demetrius, and Maximus.

May they all grow up to be feminists.

PERSONAL ACKNOWLEDGEMENTS

After working so long on this book, it is impossible for me to convey the gratefulness and the enormous thanks I feel for all of those people who helped me along the way. On a personal level, I thank my family and friends for standing by me and for supporting me during all of the months—and years—it took to get this book done and (finally!!!) get it into print. Specifically, I thank my husband, Luke, and my brother, Demetrius; his wife, Amy; and my two amazing nephews, Little D and Max. I thank my two greatest friends in Chicago who bought me lunch and kept me going—Judge Diane Larsen and Special Assistant Corporation Counsel Dawn Bode. I also thank my two oldest friends and their families—Kim, Vincent, and Solange van Doorn and Kathleen H. Dickerson and Carlos, Gail, and Julian Figueroa.

Thanks must also be given to the people involved in the actual making of this book. A heartfelt thanks goes to Mark Warda, who originally recruited me for this project, and to Deb Werksman, who was so interested in seeing this book come about, there was a time when she would call me every week. Further, I would like to acknowledge the efforts of all of the folks in editorial and marketing at Sourcebooks, Inc., who shepherded this book through the editing process and on to bookstore shelves. Many of them I don’t know by name. But some of them I do. Thanks to Todd Stocke, Jill Amack, and Michelle Schoob in editorial; Mike Bowen who swam the sea of endnotes; to Kelly Barrales-Saylor, who put the scattered pieces together in a comprehensible, readable way; to Megan Dempster for a cover I love; to Dianne Wheeler, who heads Sphinx Publishing (an imprint of Sourcebooks, Inc.); to Dominique Raccah for wanting to see this book published; and, to Christine Lock Garcia, whose job in getting the word out, has just begun.

But most of all, I would like to thank Ray Bennett, who read and reread, and worked and reworked this book with me until it was finished. By the end, it was a far better book than it might have been otherwise. My most profound thanks to Ray for all of his help.

Debran Rowland

PROFESSIONAL ACKNOWLEDGEMENTS

I would like to thank all of the publishers and authors who were kind enough to permit me to use excerpts from their publications. Where these excerpts were used, specific notation is made in the endnote in the citation form used, which is usually as offered by the publishers and included as per their specific reference.

Debran Rowland

CONTENTS

INTRODUCTION

THE POLITICS OF BIOLOGY—

THE ESSENCE OF CONTROL

SECTION I: THE 1600S–EARLY 1900s

CHAPTER 1:

WOMEN AND THE HIERARCHY OF GENDER

Early America:

A New World of European Ideals and Godly Influence

Impossible Women:

Remarkable Providences and God in a History of Details

Inventing America:

The European Tradition, Obedient Women, and American Common Law

Identity Crisis:

Women and the Constitution: What Went Without Saying

The Dred Scott Decision:

Carving Women’s Rights Out of Human Rights

Bradwell v. Illinois:

Why Women Couldn’t and Shouldn’t Practice Law

Minor v. Happersett:

When is a Citizen Not a Citizen?

CHAPTER 2:

BIOLOGY, SEX, AND THE OBLIGATION OF MOTHERHOOD

Women and the Gift:

A Life Defined by Biology

Modern Europe, Early America:

Protecting Society—Guarding Sexuality

Women and the Womb:

The Emerging Birth Control Debate

Margaret Sanger and Other Rebels:

Women Who Would Injure Society

CHAPTER 3:

WORKING WOMEN AND THE ISSUE OF PROTECTION

Women Working in America:

Frailty, thy name is woman!

Working Women Go to Court:

Efforts to Overcome the Mission Divine

Protectionist Legislation:

A Place at Work for Women and a Place for Muller in History

SECTION II: TWENTIETH CENTURY DEVELOPMENTS

CHAPTER 4:

THE NATION GOES TO WAR AND ROSIE IS BORN

Men’s Work, the Great Depression, and World War II:

Unemployment,War, and Opportunities for Women

History Redrawn at the Roots:

Women and the New American Workforce

Women at Work:

The Issue of the Superwoman is Born

Women Go Home:

Life after the Second World War

CHAPTER 5:

THE BIRTH CONTROL DEBATE BEGINS

America after the War:

Turning from Rosie to June

Images of the New American Family:

Women in the Shadow of June

The Changes of the 1960s:

Sex and the Modern Woman

Uncovering Fundamental Rights:

Redefining Zones of Privacy

The Birth Control Debate:

Getting from B to A

Resurrecting Substantive Due Process:

The Lochner Doctrine is Reborn

Birth Control and Minors:

Privacy vs. a Parent’s Right to Know

Emerging Issues Today:

And a Conservative Challenge

The Abortion Debate:

Unborn Life vs. Women’s Rights

Accidents, Epidemics, Birth Defects, and Consequences:

In Sickness and for Health—Abortion as a Solution

Abortion and Adult Women:

A History of Fragmentation

How Choice Became Law:

Jane Roe Takes on Texas

Challenging Roe (Over and Over):

Attempting to Turn Back the Clock

Assessing the Fallout as the Challenges Continue:

Roe Under Attack—Two Decades of Battle

Abortion and Minors:

Do Young Women have the Right to Choose?

Child Custody Protection Act:

Divide and Conquer in the Name of Family

CHAPTER 6:

THE 1960S AND AN ERA OF CHANGE

Women,Work, and the Question of Equality:

The Struggle to Find a Balance

Modern Equations of Women at Work:

After the Civil Rights Act of 1964

Pregnancy Discrimination and the Constitution:

Does the Equal Protection Clause Apply?

Title VII of the Civil Rights Act of 1964

And the Evolution of the Pregnancy Discrimination Act

A New Tool in the Battle:

The Pregnancy Discrimination Act of 1978

CHAPTER 7:

THE LAW OF PREGNANCY IN THE WORKPLACE

The Tough Task of Proving Pregnancy Discrimination:

Title VII and the PDA at Work

The Law in Practice:

Applying the Pregnancy Discrimination Act

When She is No Longer Needed:

Smith v. F.W. Morse & Co., Inc.

The McDonnell Douglas Standard:

Racial Discrimination Creates a Framework for

Gender Discrimination Claims

Shifting Burdens in Real Life:

Differing Interpretations Among the Courts

Beyond the McDonnell Douglas Test:

The Evidentiary Requirements

Bergstrom-Ek v. Best Oil Co.:

A Smoking Gun or a Loose Canon?

Direct vs. Circumstantial Evidence:

Balancing the Facts in Pregnancy Discrimination Claims

Defining Intent:

The Pretext Question

Sorting Out the Facts:

The Bad Employee Defense

Market Forces and Job Elimination:

Layoff Litigation and Maternity Leave

Force Reductions Analysis:

The Armbruster Test

Modern Issues in the Workplace Today:

A Love-Hate Relationship with ProtectiveMeasures

Preference or Protectionism:

Reassigning the Pregnant Employee and the Question of

Accommodation

When a Firefighter is a Woman:

Richards v. City of Topeka

Title VII and Gender Discrimination:

Four Cases and the Making of a Turning Point

The Gender Revolution and the 1990s:

Title VII and a Flood of Modern Cases

The 1998 Supreme Court Term:

The Law Poised for Change

No Longer Business as Usual:

Sexual Harassment Law after the 1998 Term

CHAPTER 8:

GUERRILLA TACTICS AND REPRODUCTIVE RIGHTS TODAY

In the Bedroom:

Issues of Sex and Privacy

Reexamining Sexual Privacy:

Through the Prism of Same-Sex Activity

The Same-Sex Marriage Challenge:

With This Ring, I Do Change the Rules

The Fall of Bowers v. Hardwick:

Changing Times Lead to New Laws

Lifestyle Choices vs. Medical Treatment:

Current Issues in Reproductive Rights Law

Abortion and the Challenge of the 1990s:

Murder and Mayhem in the Name of Life

After the Violence; The Declining Availability of Abortion:

Where Choice Exists—The Procedure May Not

The Battle that Never Ends:

Abortion and Where Women Stand

The Landscape of the New Debate:

A Conservative Agenda and an Administration Open to It

A Direct Challenge and Failure:

The Partial-Birth Abortion Debate

The Law after Stenberg v. Carhart:

The Battle Moves to Washington

Humanizing Fetuses—Dehumanizing Women:

And the Creation of Unborn Children

The Politics of Deconstruction:

Redefining Life to Dismantle Roe

The Neo-Semantics of the Continued Debate:

Turning the Fetuses of Roe into the Unborn Children of Today

A Shift in Perspective and Changing Law in Play:

Where the Law Stands Today

Knocking On the Back Door:

Connor’s Law and the Unborn Victims of Violence Act

The White House Weighs In:

Religious Initiatives and George W. Bush

CHAPTER 9:

A WOMAN’S WORTH: LESS IS STILL LESS

A Century of Questions:

Where Women Stand Today

The 1990s:

A Postmodern June

At the Turn of the Millennium:

Money Matters and Women

The New Economy:

A Boom or Bust for Women?

This Woman’s Work:

Seventy-Something Cents on the Dollar

CHAPTER 10:

THE REPRODUCTIVE RIGHTS OF NEW MEDICINE

Other Issues in Reproductive Law:

When Does the State’s Concern Go too Far?

Reproductive Rights and New Medicine:

Creating a New Universe of Choice

Motherhood and Modern Medicine:

Oh, What a Tangled Web We Weave, When First We Practice to

Deceive Conceive

Assisted Reproduction:

And the Kinship of Modern Time

Getting the Ball Rolling:

In the Matter of Baby M and Other Issues of Surrogacy

Surrogacy and Artificial Insemination:

The Side-Effects of Assistance

The Widows and Sperm:

Posthumous Conception and Other Defining Issues

The Sperm and the Egg:

Money and the Legal Issues

Davis v. Davis:

Frozen Embryos and the Coupling Problem

Sperm Donors and Dads:

An Evolving Standard

Assisted Reproductive Technologies:

Bigger Possibilities—More Devastating Mistakes

Embryo Fraud:

Errors, Destruction, and Deliberate Deception

Baby Strain or Escape Hatch:

Assisted Reproduction from the Male Perspective

Prevention Foiled—The Stork has Arrived:

Fraudulent Birth and the Misuse of Sperm

CHAPTER 11:

SEX AND SEDUCTION IN THE TIME OF AIDS

Dating Games and STDs:

White Lies as a Cause of Action

Lover’s Perjuries:

Intimate Contagions and Their Force on the Law

The AIDS Issue:

An Offense of a Different Color

American Women and HIV:

Facing the Epidemic—Changing the Law

The Limitations of HAART:

Resentment and a Backlash

The Spread of HIV:

And the New Law

Fraud of the Sexual Variety:

A New Tool in an Old War or the Battle of the Sexes

Comes Full Circle

Fraudulent Couplings:

A New Cause of Action Gaining Ground

SECTION III: THE POLITICS OF FEMALE ADOLESCENCE

CHAPTER 12:

POP LIFE AND THE LEGAL CONFUSION OF GIRLS

The World of Pre-Women:

Confounding Realities in a Quasi-Adult Universe

Biology’s Girl:

Becoming a Woman and the Hormone Parade

Precocious Puberty:

The Physical Perspective and the Problems It May Cause

C Cups and Precocious Sexual Contact:

Because Boys will be Boys

The Terrain of Modern Girlhood:

From Adolescent Girl to Woman-of-the-World in a Blink

Society’s Girl:

The Lolita Effect and Adoration of the 12-year-old

The Clothes that Make the Girl A Woman:

From Simone de Beauvoir to the Commercial World

And Now the Real Story:

Ophelia in Snapshots

The Law’s Girl:

Adolescent Women Under the Law

Girls and Sex:

Statutory Rape Laws and a History of Protecting Virtue

Girls and Schools:

Issues in Equality and Discrimination

The New ABCs of Education:

Sexual Assault in the Classroom

SECTION IV: VIOLENCE AND WOMEN

CHAPTER 13:

A WOMAN’S PLACE IS IN THE HOSPITAL

The Story of Violence:

A Toll Counted Daily

The Seeds of Violence:

On History Repeating Itself and Then Some

The Modern Trend of Man:

Violence and Mankind; Violence and Womankind

Maidenhood and Maidenheads:

Hymen Envy and a Universe Desirous of Virgins

The Opposite of Mary and Working Shame:

Sin and Slander by Sexual Reference

Sexual Reference and Libel:

The Current and Historic Practice

CHAPTER 14:

CURRENT ISSUES IN RAPE AND SEXUAL ASSAULT LAW

Rape and Sexual Assault:

The Cultural Debate—The Legal Issues

The Less Cerebral Measures of Rape and Sexual Assault:

The Statistical Dimensions

The Statistical Dimensions of Rapists:

Who’s Playing at Survival of the Fittest?

Rape: A Crime of Violence in Which Sex is the Weapon:

The Content and Context of Rape Law Today

Defining Rape:

Obvious Devastations; Abstruse Standards

History and the Utmost Resistance:

The Need to Push the Law Forward

Reform Gains a Foothold:

The Slow Steps to Change

Enormous Promise—a More Limited Reality:

A Model Penal Code and the Reformation of Rape Laws

Rape and Implicit Violence:

Pride Makes Resistance Instinctive

Shielding Sexual History:

Or Creating Doubt by Turning Victim into Vamp

The Rape Shield:

And Other Exemptions at Work in the Courts

Inventing Consent:

Where There is None

Rape and Sexual Assault:

And the Violence Against Women Act

Brzonkala v. Virginia Polytechnic and State University:

United States v. Morrison

A Civil Rape Remedy Not Allowed:

An Activist Court and a Federalist Agenda

Brzonkala v. Virginia Polytechnic:

United States v. Morrison is Decided

CHAPTER 15:

THE PRIVATE STORY OF PRIVATE ABUSE

Battery Begins at Home:

Private Crimes or Public Health Problems

A Woman’s Place is in the Hospital:

The Statistical Side of Domestic Violence and Murder

Who Takes a Beating:

A Socio-economic Portrait of Intimate PartnerViolence

Violence and the Contemporary Love Affair:

Why Battery Prevails When All Else Fails

Violent Factors in Everyday Life:

The Power to Cause a Reign of Terror

Mandatory Arrests:

The Heavy Hand of the Law

EPILOGUE

INDEX

ABOUT THE AUTHOR

INTRODUCTION

The Politics of Biology— The Essence of Control

"PBS’s NOW with Bill Moyers tonight will examine claims that recent government policies, regulations, and executive orders are part of an ‘organized campaign aimed at rolling back women’s reproductive rights’ said the email forwarded to me by my publisher. The segment, titled, ‘Politics of Choice,’ will explore federal actions, including the legislation that would ban so-called ‘partial-birth’ abortion[;] bill (HR 760); the Unborn Victims of Violence Act, a bill introduced in both the House (HR 1997) and the Senate (S 1019) that would make harming a fetus while committing a federal criminal act [,] a separate crime; the White House’s so-called ‘Mexico City’ policy, which prohibits federal aid from going to groups that fund or counsel on abortion; and the Bush administrator’s final regulation allowing states to define fetuses as ‘unborn children’ eligible for health coverage under the State Children’s Health Insurance Program," the email continued.

I marked my calendar and went back to work. Since 1999, I had been working on a women’s rights book. And by the time of the email, I was on intimate terms with the cycle of advances and digressions characterizing women’s rights in America, historically and today. More specifically, I had come to know the arguments, accusations, ideologies and pervasive extremes offered as evidence of the various claims by the various interests in an emotional, and often polarized, debate. A debate over what a woman is; what a woman ought to be; and what a woman should, therefore, be allowed to do.

It is a long-lived debate, peppered in the last two centuries by a handful of hard-won victories occasionally granting women rights and privileges deemed naturally held by men. Far more numerous during this period, however, were hard-fought defeats foreclosing those rights to women, especially in the early days of the American nation. The reason often advanced for these denials was that women were women.

Biological differences between men and women have historically been read to mean that women were dumber and weaker and, thus, in need of the paternal protection of fathers, husbands, and sometimes even sons. But the construction of women as wards has always been multifaceted in the way that a house of cards is multifaceted. Because women bore children, it has often been argued—indeed, understood—that by God and nature women had been assigned the divine mission of motherhood.

To men—and to many of the women—of this time, motherhood was a godly thing, blissful in its achievement (especially when the children were male), and of utilitarian benefit to mankind. It also happened to be one of the few areas of human life where the abilities of women were recognized as superior to those of men. But as with all swords, there was a double edge. The notion of women as mothers soon turned towards the broader understanding that a woman’s place was solely within the home. The addled minds and weaker constitutions of women added further to this understanding.

In the light of the contemporary debate, ancient understandings of this kind are easily labeled misogynist or oppressive. But in terms of history, some scholars suggest that the woman-as-subordinate construct served as useful a purpose in the new world as it had in England by establishing the hierarchical framework necessary for the formation of a well-ordered society. State and territory leaders—like the American Founding Fathers later—were grounding states, territories, and eventually a nation. There had to be rules.

By limiting the roles of women to wives and mothers in the burgeoning United States, women became helpers to husbands, caretakers of the home; appendixes to men, their civil identities literally absorbed into those of their husbands upon marriage. As such, they remained the subordinates of spouses and fathers. Married women, like children, were the wards of men.

Is it really a surprise, then, that the Founding Fathers would decide—either by conscious deliberation or unconscious acceptance—that women need not be mentioned in the grounding documents of our nation? Men saw women the way parents saw children. But this absence would eventually raise questions. As subordinates with no expressed mention of rights in the United States Constitution, leaders and lawmakers reasoned and assumed that women were deserving of, and, indeed, could only be granted, a lesser array of rights and privileges. If this were not so, women would be equal and the hierarchy would crumble.

This may have worked for men. But by the mid-nineteenth century, women were asking for a clarification of their status in court. Were they citizens entitled to the protection of the Privileges and Immunities Clause of the United States Constitution? According to the Justices of the United States Supreme Court, they were not. Were women free to choose professions? Not unless the state they lived in permitted it, the Justices held. Could they vote? Not until 1920, when the Nineteenth Amendment was ratified, overruling a Supreme Court decision.¹

The status of women in America remained unsettled in many areas well into the mid-twentieth century, with the exception of a few distinct areas. Among them were the interracial, inter-status marriage to slaves. In that case, women foolish enough to enter so shameful a union assumed the status of their husbands.² Again, in the context of history, this made sense to the leaders of a scrappy new nation struggling into being.

Whatever their beliefs in natural law and greater superiority, to the Founding Fathers, landed-gentry, and plantation owners of the times, free labor was a necessary component to building a nation and an undeniable asset to building wealth. Slaves and indentured servants were that labor, though they were of distinctively separate classes. Indentured servants, overwhelmingly of European descent, were whole, but bound men, while slaves, overwhelmingly of African descent, were part men mentioned in the United States Constitution only for purposes of taxation.³

But even that stood in contrast to women. Though slaves had no rights in early America, the fact that they were mentioned, even as three fifths men for purposes of taxation, offers a point of comparison for women. Like slaves, rights for women were never expressly enumerated in the original articles of the Constitution. Unlike slaves, absent was any measure of women.

For women, there was neither express inclusion, nor exclusion. Rather, there was silence, raising the emerging question during the nineteenth century of what rights women were to have in their new land. British common law tradition suggested that women were to have no independent or individual rights. Instead, they would derive rights, once married. And it was the goal of every woman to be married.

Many early American states adopted similar laws, and thus entered similarly hierarchical relationships with women. As a result, women in the early United States were often not allowed to own land or other real property. Further, the question of whether a woman’s private property could still be called hers after marriage remained open in many states, with some lawmakers concluding that upon marriage, even a woman’s dresses became the possession of her husband. Women could not enter into contracts or file lawsuits without the permission or assistance of husbands, which tended to foreclose participation in white-collar professions.

But women—or perhaps more precisely, husbands on behalf of their wives—would eventually bring suit, challenging these and other laws. Still, it wasn’t until the mid-twentieth century that things began to change for women. For example, not until the 1960s did the United States Supreme Court recognize certain zones of privacy for women, which would later form the basis for many of the landmark decisions of this period. By contrast, as far back as the 1600s, certain zones of privacy were deemed legally to exist for men.⁴

A seventeenth century Massachusetts law that would set the tone for the laws of other New England colonies provided, for example, that male magistrates, jurors, and other various officers were not bound to inform, present, or reveal any private crime or offence, wherein there is no peril or danger to this plantation or any member thereof, when any necessary tie of conscience binds him to secrecy grounded upon the word of god, unless it be in case of testimony lawfully required.⁵

Secrecy laws of this kind were justified by the lawmakers of the time as protective of family privacy. They tended in reality most often, however, to protect the privacy of men. The private acts and conversations of women were not similarly protected, historian Mary Beth Norton suggests, noting, for example, that in 1646, New Haven authorities did not hesitate to prosecute a group of three women—the mistress of the household, her mother, and a friend—for speaking contemptuously of the colony’s political and religious leaders. A male servant apparently reported the content of the conversation to a nosy neighbor.⁶

With no protection for personal conversations taking place within the space of their own homes, it should come as no surprise that it wasn’t until the early 1960s that American courts began advancing these kinds of family privacy protections to women. But why the three-century wait? And why such clear difficulty defining the rights and status of women in a land whose Founding Fathers evidently believed in the unequivocal enumeration of rights?

Because the rights of women are—and always have been—hopelessly tangled in that political and cultural imbroglio of religion,natural law, arguments purporting to assert the common good, and ancient themes of female subordination and procreative obligation. Untangling this tapestry of conflict is what this book is about. And we will take it step by step, starting with the most ancient of structural elements: religion.

From the many faces of Mary to her most enduring contrast, Eve, religion has always played a role in the lives of women. Church fathers extolled the virtues of chastity, obedience, and female subordination.⁷ Social leaders—also often the religious and the wealthy (few others had the status to be admitted)—became the de facto lawmakers of the young states, finding frequent rationale and resolve in the passages of the Bible. Adding to the mix was a fledgling Supreme Court whose justices praised the godly gift of procreation and the women who would do the nation proud in honoring it. These are the narratives of American history that will be covered in Chapter One.

But there has always been more to the equation than religion. There has also been sex. Women have long derived value from their ability to bear children: heirs in feudal times,⁸ extra hands in agricultural times,⁹ mothers of the nation in the eighteenth and nineteenth century;¹⁰ or just plain obligated—unfairly or not—to carry an unborn child to term, antichoice advocates argue today. Arguments of this sort led prosecutors to assert in 1914 that Margaret Sanger’s efforts in distributing information on birth control was equivalent to disseminating ...articles advocating bomb throwing and assassination.¹¹ And that is where sex comes in.

Until recently, a woman could not become pregnant without sex. And, thus, sex has always been a problem for women. Or more precisely, the possibility that a woman might have sex for reasons other than procreation has always been a problem for women. Sexual conduct and female reproduction has been intertwined historically around notions of identity and proper social roles: women bore children and took care of the family they had invented. But what if a woman did not intend to bear children? Could she still have sex?

An independent female sexual identity, one devoid of maternal instincts or disinclined to have heirs, has been perceived throughout history as nothing less than dangerous. Dangerous to families suffering the taint of a daughter’s less-than-virtuous conduct. Dangerous to women, who were more prone to spread and suffer disease than men. Dangerous to men, who might catch these diseases and/or suffer the stain of bastardy proceedings.

But most of all, unchaste women were dangerous to society, capable of unraveling the delicate fibers and disconnecting the threads of their new community with a single tug of their corset strings. Or so it was argued by prosecutors as the men of the time moved with swift determination to suppress any and all discussion of birth control. Thus, Margaret Sanger became a bomb thrower and rules regarding quickening—the predecessors of modern abortion laws—began to take shape.

To be sure, women fought back in favor of birth control, though generally in smaller numbers and with little clear success. Contraceptives would save lives, early advocates argued. No, no, it would take lives, opponents argued. Of course, the lives involved were different. Women were arguing on behalf of women, who were dying in childbirth or as a result of botched or self-induced abortions. Men were arguing on behalf of the unborn children and families denied, given the selfish, unsacrificing attitude of women.

Though the perspectives were clearly different, central to both sides of the debate was the coming apart of the relationship between sexual activity and reproduction and all that has come to mean. Which was, in fact, the problem: the widespread use of birth control had the potential to render inconsequential an act that was meant by God and nature to lead to children. Discussion of these issues can be found in Chapter Two.

In early America, the ability of women to conceive and carry children also foreclosed their rights to choose professions and sometimes to work at all. Seventeenth century scholars spoke glowingly of a woman’s "desire...to bee [sic] married."¹² With marriage came conception, pregnancy, child birth and motherhood—all of which seemed to trouble judges and lawmakers of the time. State officials sought to protect women from unscrupulous employers and perhaps themselves by limiting the hours they could work. This, they argued, was for the good of mankind.

Judges in the nation’s courts—among them the Justices of the United States Supreme Court—agreed, holding in case after case (with rare exception during the first half of the twentieth century) that the mission of motherhood and orderly function of the home were enough to justify limiting working hours for women. With the exception of pornography, in industries across the board, women have always earned less than men. Thus, limiting the working hours of women literally meant limiting the lives of women.

For properly married women, this mattered less, of course, than for women who had married less well or women who had not married at all. Tossing a monkey wrench in all of the works, however, were well married women who chose not only to work, but also to attempt to enter the ranks of the higher professions. They failed. So did politicians and lawmakers seeking to set a protective minimum wage for women. As it happens, this measure was challenged by women on both sides, setting the stage for the modern-day debate over protective legislation versus discriminatory legislation. Chapter Three will cover these issues.

Women have always worked in America, despite the hurdles; their traditional presence apparent in the womanly professions. Despite public objections and limited work hours, by the turn of the twentieth century women crowded factory floors, sewing shirts or handling laundry. Women were nurses like Sanger. And bakers. They cleaned houses and cared for children. Occasionally they became teachers. Even more occasionally, lawyers and doctors, their numbers growing steadily, but slowly, each year until the Second World War.

World War II marked a turning point in American history for women. With the assertive propaganda of Rosie the Riveter to encourage them, women entered the workforce in record numbers, filling jobs that would ordinarily have been held by men. Following the war’s end, women were pushed out of the labor force as men reclaimed jobs and the baby boom generation was conceived. But the extraordinary absence of men seemed to open a door for women, who began to slip quietly back into the workforce almost as soon as they were ousted. And would continue to do so steadily for the next two decades.

With the presence of women firmly established, the workplace was due for a few changes. But these changes were about battle and an uncomfortable ground shift. Women were claiming space in once all-male offices and later all-male professions, putting men with families to support out of work. This angered a great many men, and the debate spawned by that anger resembled modern antiaffirmative action arguments. Women, opponents said, were not as strong or as smart as men. And they certainly did not have a head for business. Thus, they had no business doing the jobs of men. Women should be home taking care of the children. Not competing with men.

Informing every aspect of the debate, of course, was procreation and the fact that women could—and did—get pregnant and have babies. But there were also the changing times to be considered. During the 1940s and early 1950s, working women tended overwhelmingly to be lower-class women, at times desperate, often in need of cash for survival. But by the 1960s, women were turning work into professions and they were looking for careers that would allow them greater freedoms and choices.

In other words, women intended to work and to have jobs to return to should they decide to have children (and at this point, there was, in fact, still very little choice). The only problem was that without laws to protect them, women were routinely fired for doing what comes naturally, further proving to some that women had no business in the work place. That had to change. Chapter Four will provide an overview of this period in history and the changes that would begin to shape the modern workplace.

Of course, real change never takes place in a vacuum. And by the late 1950s and early 60s, a chain reaction of events had been set into motion that would change the course of American history. Laws separating facilities along racial lines were called into question as civil and women’s rights movements gained momentum. Driven by protests and headline-grabbing sit-ins, response to these events was a reverse domino-effect of new laws and legislature.

A watered-down Civil Rights Act was passed in the late 1950s, for example, by representatives still bristling at the thought of widespread change, only to be revised by Congress—giving it back its teeth—and repassed in 1964. During this same period, the United States Supreme Court was making new law as well. Whether in recognition of the place women now held in the workforce, the women’s movement, or simply because it was time, the Justices began to separate the identity of woman from that of wife and mother, and to concede that there could be one without the others.

Reviving the earlier notion of familial zones of privacy, the Justices ruled in 1963 that husbands and wives were entitled to make the decision of whether or not to have children privately. Decisions permitting single women to similarly choose birth control and later abortion followed with a majority of the Justices extending the right of privacy to women, a right allowing them to choosewhether or not they would become mothers. Though this decision has been challenged nearly every day since it was handed down and has led to more than twenty decisions by the United States Supreme Court, so far it has stood. An overview of these decisions and the background of the time frame can be found in Chapter Five.

Of course, the state has always had a greater interest in women choosing motherhood than not. Citizens and society were at stake, it was historically argued. But by the 1960s, women were part of the workforce and they had finally emerged as a full-blown political constituency in their own right. And the coupling of these realities allowed for a different kind of choice: the choice to have children and to continue to work. Legislation was passed to make that possible.

The Civil Rights Act of 1964 prohibited discrimination based upon race and gender. Though gender discrimination was not formally defined until 1978, challenges were immediately brought under the Act, as well under the Due Process and Equal Protection Clauses of the United States Constitution. The cases of the 1960s and ‘70s form the spine of Chapter Six.

But sorting out the ultimate meaning of a new law takes time, and for the next two decades immediately following the passage of Title VII of the Civil Rights Acts of 1964, courts argued back and forth over whether the protections it offered were meant to be a sword or a shield. Congress did attempt to clarify the meaning of the Act in 1977, by amending Title VII to include the Pregnancy Discrimination Act.

Between 1978, when then-President Jimmy Carter signed the bill into law and the late 1990s, when the law would take a quantum leap in the direction women’s rights advocates had always hoped to move it, nearly every manner of challenge was brought under the Pregnancy Discrimination Act, beginning with an initial challenge brought by a man seeking benefits coverage, to a bank receptionist whose attempts to reclaim her job would steer the debate towards the dangerous eddy of protectionism.

Feminists would join conservatives on both sides of the aisle in the battle over the proper reach of the Pregnancy Discrimination Act and the meaning of Title VII overall, given the inclusion of language prohibiting discrimination based upon gender. The language of Title VII has been read to prohibit discrimination based upon gender. The measure, along with the Pregnancy Discrimination Act, was used initially to challenge discriminatory policies and practices associated with pregnancy or a related condition. But Title VII would eventually emerge, specially during the late 1990s, as a formidable tool against sexual harassment (i.e., harassment based solely upon gender). Cases involving an overview of this area of the law can be found in Chapter Seven.

Though sexual harassment issues create a fervor all their own, the area of the law that remains the most emotionally and politically contentious is reproductive rights. The debate over procreation, sexual choice, and pleasure have always been linked. In the historic context, these issues were exclusively part of the debate of what conduct should be regulated by the state. But in the last two decades, issues of sexual intimacy have turned on the question of natural procreation.

Despite the monumental changes that have taken place across the nation in the last two decades, the United States Supreme Court was still debating sodomy as it related to homosexuality in 2003. That was a debate, however, that until recently didn’t get any better on the state level. Alabama authorities moved in 1998, for example, to prevent the purchase and sale of sexual stimulation devices as violative of state law.

The American Civil Liberties Union filed suit against the state on behalf of six women, alleging that the Alabama law placed an undue burden on their right to privacy.¹³ Central to both the Alabama and Supreme Court sodomy cases (and their corresponding high-profile challenges) was the question of what sexual acts a person should be allowed to engage in when those acts have no clear relationship to traditional notions of family and will never naturally lead to children.

The use of words like naturally or should has never been accidental with regard to this debate. Rather, authoritative words of this sort have long been used to connote what some deem the essence of the issue: the natural biology of mankind and the gifts God has allowed. And that seems to be where some people would like to see reproductive issues remain—chained to procreation—despite the legal and scientific advances and social changes of the past three decades. Thus, they have done all they can in recent years to keep God in the picture.

In that sense, women today are living through one of the most politically provocative and historically significant periods since the 1960s and early 70s, when most of the landmark reproductive rights decisions were handed down. Those decisions changed the course of American history, and that is what makes the current times so extraordinary. Nearly every year since 1973, when the United States Supreme Court issued the decision in Roe v%. Wade—considered by many to be the most seminal of the reproductive rights cases—that ruling has been challenged with a mind towards overturning it.

So far, those efforts have failed. But even so, they have resulted in more than twenty follow-up decisions by the United States Supreme Court, more than in any other single area of the law during that same period. And these challenges have not diminished. They have merely changed or taken new form. In that regard, the next threat, scholars and feminists argue, may come from the United States Supreme Court itself.

Speculation ran wild during the summer of 2003 that at least one, but perhaps as many as three, of the aging Justices on the Court could retire in the next two years, opening the door to the appointment of that many new, and almost certainly, conservative Justices opposed to abortion. President George W. Bush, the man whose administration would likely do the appointing, staunchly opposes abortion and is known to be a zealously religious man. His administration has already attempted to pedal an antiabortion, anticivil rights slate of jurists on the lower federal level.

Adopting the view that life begins at conception, members of the George W. Bush administration have: moved to extend medical benefits to unborn children and authored legislation that would recognize unborn children as the victims of federal crimes. These measures are contrary, of course, to the law established by the United States Supreme Court decision in Roe v%. Wade. They also stand in defiance of long-standing public policy that did not recognize fetuses—as opposed to the unborn—until they were born alive, acknowledging, of course, that even under the best of circumstances, not every child is born alive.

The Bush administration has also: pushed initiatives prohibiting certain late-term abortion procedures; reversed the Clinton-era policy of providing financial support to international family planning groups; and announced its intentions to revisit the Food and Drug Administration’s approval of medical abortion protocol RU 486, citing safety concerns.And if appointments in and of themselves are any indication of the administration’s intent to finally get the job done, during the first few months in office, the Bush administration announced the appointment of John Ashcroft as attorney general.¹⁴ Ashcroft, a conservative Christian and staunch antiabortion opponent, presided over challenges to Roe v. Wade while attorney general of Missouri.¹⁵

And yet, these are among the more obvious attempts at change. In recent years, a war of words that has always involved turning one man’s facts into another man’s polemics, has escalated and gone underground, emerging into the public eye only occasionally in an abrasive campaign of guerrilla tactics as questionable in their legality, some scholars say, as in their dishonesty.

In the spring of 2003, for example, charges flew after the National Cancer Institute published research findings in a fact sheet. The findings showed no evidence of a scientific link between an increased risk of breast cancer and abortion. Research literature does suggest that women who have no children may face a slightly elevated risk of breast cancer. But there appears to be no similar link for women who have had abortions, NCI researchers reported.

Antiabortion activists have long argued, however, that there is such a link. And some twenty-eight of them—who also happened to be members of Congress—demanded removal of the information from the agency’s website, challenging the sheet as scientifically inaccurate and misleading. The information was removed, a measure that infuriated pro-choice politicians, who then charged in response that scientific information posted on an official government website had been changed to reflect the antichoice agenda of the current White House.

These and other similar efforts resulted in the summer of 2003 in the publication of a 40-page report by the minority staff of the House Committee on Government Reform, which found that [t]he administration’s political interference with science has led to misleading statements by the president, inaccurate responses to Congress, altered websites, suppressed agency reports, erroneous international communications and the gagging of scientists.¹⁶

These are aggressive moves, concerted efforts in the politics of disassembly by an administration and like-minded supporters willing to use every conceivable back door to undermine public policy and the law because they simply do not agree with it. An overview of these issues will be covered in Chapter Eight of this book.

Of course, issues of reproductive rights fold into the larger context of American society. In the last three decades, sweeping change was apparent in many areas of American society. For women, change was perhaps most apparent in the gains made in the education arena. The rate of college enrollment rose for women between 1980 and 1990, until it finally began to approach that of men.¹⁷ At the same time, the percentage of women entering traditionally male fields also rose—from one percent in 1980 for women graduating with majors in engineering to 14 percent by 1990.¹⁸

Gains were also made on the graduate level, where in 1970, only 9 percent of all business degrees earned went to women. But by 1997, that number had risen to 47 percent of all degrees earned.¹⁹ There was also progress in the field of law. In 1970, only 10 percent of the students entering law school were women. But by 2001, 49.4 percent of the 43,518 first-year students entering laws schools across the country were women.²⁰ Women entering medical school had also neared the 50 percent range by 2003, up from 25 percent in 1975.²¹

But these gains have not automatically translated into gains in the working world. Although women made up nearly half of all law school students, the opportunities appear to be fewer once women leave school.²² The challenge of monetary equality also remains an issue. Although experts reported that by the mid-1990s there were more than 100,000 decamillionaires—people with a personal worth of $10 million or more—in the country, a relative few were women.

In addition, though women narrowed the wage gap some during the 1980s,²³ scholars note that for many women, the lion’s share of these gains was consumed by the day-to-day necessities of life.²⁴ At the same time, the number of female-headed households increased, suggesting that while wealth seemed to grow, women with children remained among the poorest Americans.²⁵

Specifically, single-wage, single-headed households accounted for nearly half of all poor families.²⁶ This remained true despite the New Economy of the 1990s, when many Americans appeared to ride the technology bubble to greater wealth. Today, despite more advanced degrees, more education, and more women in the workforce women still earn roughly 76 cents for every dollar a man earns. These issues of inequity will be discussed in Chapter Nine.

In addition to progress on the work front, there was progress in the area of assisted reproduction, which has reportedly grown in the last two decades into a billion-dollar a year industry.²⁷ Among the modes of reproduction available to women today are in vitro fertilization, embryo storage, egg and sperm donors, the retrieval of semen from dead fathers, and the fast-approaching possibility of human cloning.

Pleasure, procreation, and sexual choice have always been linked. As a result, there have always been questions of how far women (and others outside of the mainstream) should be allowed to go. Throughout the 1960s and 1970s, privacy issues turned the tables of state-regulated permissibility, and the advances—scientific as well as legal—pushed issues of intimate choice even further. Today, that choice involves scientifically advanced methods of overcoming nature’s failing. Those methods, along with an overview of the social and legal implications of science in the womb will be discussed in Chapter Ten.

Of course, the vast majority of children are still made the old-fashioned way. But natural reproduction still requires sex, or something like it. Indeed, one of the biological truths about procreation is that whenever there is a pregnancy, there has been unprotected sex. And sex of all varieties has shown itself to be the more frequent practice of women on college campuses, according to a 2001 survey published by the Independent Women’s Forum.²⁸

Increasingly casual sexual practices have led, however, to the increased spread of sexually transmitted diseases, some argue. In 1999, for example, the national rates of gonorrhea, syphilis, and HPV—the virus responsible for several other infections, including genital warts and cervical cancer—rose after a long period of decline.²⁹ Though men have traditionally comprised the majority of people living with HIV in the United States and continue to do so today, the rate of infection among heterosexual women rose steadily throughout the 1990s, with thousands of new infections the direct result of unprotected sex with an infected male partner.³⁰

But the spread of sexually transmitted disease—be it deliberate or negligent—has opened the door to litigation.³¹ Suits grounded in assertions of sexual deception or involving allegations of sexual fraud or fraudulent coupling are increasingly common today. These and other related issues will be covered in Chapter Eleven.

By contrast, there are the lives and couplings of girls. For every hurdle an adult woman faces, there are at least two for girls. Adolescence is a time of confounding realities, when peers, the media, popular culture, and even a young woman’s body may dictate who she is or is thought to be. The contradiction of these years is most apparent, of course, where an adolescent looks the part of an adult woman. And girls more and more often look like women.

A young woman may be sexualized long before she is able legally, in most states, to consent to sex. Her contemporary male peers and often adult men as well, may take a sexual interest in her. And yet, regardless of how she dresses and/or of how boys and men respond to her, the adolescent girl remains in most states and by most legal definitions a minor child legally incapable prior to a certain age of consenting to those acts generally thought to make a girl a woman.³² So who is the adolescent girl today? These and other questions and issues will be discussed in Chapter Twelve.

Issues of violence comprise the final four chapters of this book. Every day across America, women are battered, beaten, raped, and killed. In 1994 for example, women survived³³ five million violent victimizations.³⁴ In more specific terms, women age 12 or older survived more than 400,000 rapes or sexual assaults, nearly half a million robberies, close to a million aggravated assaults, and more than 3 million simple assaults.

In 1999, three out of every 1,000 women in the United States was raped or sexually assaulted,³⁵ and nearly 5,000 women 12 or older were murdered.³⁶ A million women are stalked each year,³⁷ and when they are attacked, women are more likely than [men]³⁸ to sustain an injury.³⁹ About a quarter of the time, weapons are used against women.⁴⁰ Women are most likely to be victimized at a private home (their own or that of a neighbor, friend, or relative).⁴¹

And yet, as often as there are crimes against women, there are attempted defenses, some as degrading as the violence itself. And where there are charges of rape, there are often suggestions of consensual sex.⁴² To a charge of date rape,⁴³ there may be talk of an obsessed woman crying-wolf or falsely accusing as a form of revenge, for example.⁴⁴ Newer to the mix are date rape drugs.⁴⁵ An overview of these and other issues will be discussed in Chapters Thirteen, Fourteen, and Fifteen.

ENDNOTES FOR INTRODUCTION

1 The Nineteenth Amendment was ratified in August of 1920. The ratification overruled the United States Supreme Court’s decision in Minor v. Happersett, 88 U.S. (21 Wall.) 162 (1875). But even that was not without controversy. Some suggested that as the abolition of slavery movement grew, [t]he argument for suffrage…became more expedient: white women’s votes would balance those of newly enfranchised black males and immigrants. The majority that ratified the 19th Amendment in 1920 was built on these racist grounds. See Natalie Zemon Davis & Jill Ker Conway, The Rest of the Story, N.Y. TIMES MAG., May 16, 1999, Sec. 6, at p.84.

2 See Mary Beth Norton, FOUNDING MOTHERS & FATHERS: GENDERED POWER AND THE FORMING OF AMERICAN SOCIETY (New York: Alfred A. Knopf, 1996), at p. 72. (Norton notes that during discussion of the state’s first slave code, members of the Maryland assembly held, given the shame of such matches, that ‘whatsoever free borne woman shall intermarry with any slave from and after the Last day of this present Assembly shall Serve the master of such slave during the life of her husband And that all the Issue of such freeborne women soe marryed shall be Slaves as their fathers were.’ In addition, [c]hildren already born from such unions were ordered to serve their father’s master until they reached the age of thirty (citing MARYLAND ARCHIVES I, 527, 533–534).)

3 The Founding Fathers set forth in Article I, Section 2, paragraph 3 of the United States Constitution that "[R]epresentatives and direct Taxes shall be apportioned among the several States which may be included within this Union, according to their respective Numbers, which shall be determined by adding to the whole Number of free Persons, including those bound to Service for a Term of Years, and excluding Indians not taxed, three fifths of all other Persons." That language was later relied upon by Justice Taney in the Dred Scott decision in reaching the conclusion that slaves and their descents were only three-fifths of men. Section 2 of the Fourteenth Amendment, adopted after the Civil War—which some scholars argued was brought on by the Dred Scott decision—effectively rendered this language meaningless.

4 See Norton, supra note 2, at pp. 43–45.

5 Id. at 44 (citing Massachusetts Bay General Court approved BODY OF LIBERTIES, 226 (1641) and the LAWS AND LIBERTIES, 47). (The language of the text has been edited to reflect modern spellings and abbreviations. The actual language and context of this quote is as follows: In the province’s first comprehensive legal code, the Body of Liberties (1641), using language that was also later incorporated into the Laws and Liberties (1648), the General Court provided that ‘[n]o Maestrate, Juror, Officer or other man shall be bound to inform[e], present, or reveal[e] any private crim[e] or offence, wherein there is no perill or danger to this plantation or any member thereof, when any necessarie tye of conscience binds him to secresie grounded upon the word of god, unlesse it be in case of testimony lawfully required.’)

6 Id.

7 See Cullen Murphy, THEWORD ACCORDING TO EVE: WOMEN AND THE BIBLE IN AN ANCIENT TIMES AND OUR OWN (London: Allen Lane, The Penguin Press, 1998), at pp. 15–16. ("In the New Testament, the duties and the proper place of women are delineated by what are known as household codes, rules governing private behavior in and outside the home. In the Hebrew Bible, the book of Leviticus by its nature is concerned with rules—it is, in essence, a book of instructions and laws, for the use of priests—and among its many strictures are those governing personal behavior as it relates to cultic purity and impurity and hence governing menstruation, sexual relations, and childbearing. Women, in the view of these codes, represent a very real threat to purity. A palpable sense of threat (‘Give not your strength to women’) emerges too even from the accessible poetry of Proverbs, a more congenial and kindred book than Leviticus to a modern reader. The famous ‘woman of worth’ passage at the very end of the book (PROVERBS 31:10-31), which defines the qualities of an ideal wife, is noteworthy for expressing this ideal exclusively from the point of view of the husband and the household:

T

he heart of her husband trusts in her,

a

nd he will have no lack of gain.

S

he does him good, and not harm,

a

ll the days of her life.

S

he seeks wool and flax,

a

nd works with willing hands.

S

he is like the ships of the merchant,

s

he brings her food from afar.

T

he Bible is the best-selling book in the world. It has been and still is presumed by hundreds of millions of people to speak with authority, both explicitly through precept and implicitly through what it holds up by way of example. That authority, though it falls along a broad spectrum of fastidiousness, has helped to enforce what it prescribes.")

8 See Laura M. Otten, WOMEN’S RIGHTS AND THE LAW, (Westport, Connecticut: Praeger 1993), at p. 36. (America began as a British colony, and England turned to feudalism in the thirteenth century. Thus, it should come as no surprise that those fingerprints have always been felt on American life.) (With the introduction of feudalism in the thirteenth century, and the fief’s replacement of the family as the important legal and economic unit, women were no longer valued for their economic productivity, says Otten. Instead, with this loss of status, women became valued solely for their procreative abilities—namely the ability, as wives, to produce legitimate heirs, thereby enhancing men’s status, since a man’s status was directly proportionate to his property and number of heirs. As part of this valuation process that established a woman’s worth only as a wife and mother, laws were passed defining single women as ‘surplus labor.’ These laws were accompanied by additional legislation setting women’s wages lower than those of males. Even when such laws were not on the books, it became practice to pay women lower wages. Thus, women were either forced to exist at a marginal level of subsistence or to engaged in one of the three traditional arenas for single women to enter: domestic service, prostitution, or marriage.)

9 For discussion, see Mary P. Ryan, WOMANHOOD IN AMERICA FROM COLONIAL TIMES TO THE PRESENT (New York: Franklin Watts, Inc., 1975), at p. 162.

10 See, e.g., Ann Ferguson, BLOOD AT THE ROOT: MOTHERHOOD, SEXUALITY & MALE DOMINANCE (London, England: Pandora Press, 1989), at pp. 102–103. (According to Ferguson, several kinds of patriarchies have existed and served to control women’s lives. Among them was the father patriarchy, prevalent in feudal Europe and colonial America, in which fathers exercise[d] coercive control over the resources of the family economy (itself the only available source of income other than the army or the church) available to their children. Households are usually not nuclear but extended in two senses: first, they may contain the older generation relatives and unmarried relatives; second, they may contain servants and apprentices, usually young relatives ‘put out’ from their family of origin to learn a trade. [] In such extended family households, some class relations were often internal to the household: the father was the master not only of his own children and wife but of indentured servants and young apprentices. In the South under slavery, his situation was even more despotic, since he had slaves over whom he had complete sexual and reproductive control. [] The father in the father-patriarchal household owned the family property and dispensed it at will to his children, the land to sons and a lesser dowry to daughters. The father was the religious/moral head of the household. Children needed their father’s permission to marry and were completely dependent on his largesse in inheritance. A woman’s sexuality was controlled first by her father, then by her husband or male relatives if she remained single.)

11 See Margaret Sanger, AN AUTOBIOGRAPHY (New York: W.W. Norton, 1938), at p. 115. (Wrote Sanger in recounting the experience, August twenty-fifth I was arraigned in the old Post Office way downtown. Judge Hazel, himself a father of eight or nine children, was kindly, and I suspected the two Federal agents who had summoned me had spoken a good word on my behalf. But Assistant District Attorney Harold A. Content seemed a ferocious young fellow. When the Judge asked, What sort of things is Mrs. Sanger doing to violate the law? he answered, She’s printing articles advocating bomb throwing and assassination. [] Mrs. Sanger doesn’t look like a bomb thrower or an assassin," [the judge said.] [] Mr. Content murmured something about not all being gold that glittered; I was doing a great deal of harm. He intimated he knew of my attempts to get Family Limitations in print when he said, She is not satisfied merely to violate the law, but is planning to do it on a very large scale.)

12 See Norton, supra note 2, at p. 57 (citing T.E., The Lawes Resolutions of Women’s Rights; or, The Lawes Provision for Woemen (London: John Moore, 1632), at p. 6).

13 See Williams, et. al v. Pryor et. al., 220 F. Supp. 2d 1257 (N.D. Ala. 2002).

14 Ashcroft was nominated after losing his seat in the Senate to then-deceased Governor of Missouri, Mel Carnahan. Ashcroft faced a long list of critics opposing his appointment as the top law enforcement official in the country. Among them