False Protection, Real Oppression: Opposing Anti-abortion Legislation


 Photo © Estate of Fred W. McDarrah

By Linda Gordon

Who could have imagined in 1973 that we would still be debating abortion rights in 2016? When the Supreme Court decided Roe v. Wade, it was following, not breaking with, public opinion. Eighteen states had already repealed or liberalized their anti-abortion laws before Roe. The reasons were obvious: in our modern, post-industrial society, whenever more people are required to bring in wages to support their families, reproduction control is an economic necessity. The majority of aborting women, now and in the past, were already mothers who had as many children as they could support; the majority of abortions resulted from joint decisions by biological mothers and fathers. And bans on abortion have always hurt poor people the most.

The reason we’re still mired in a debate that functions—and was designed—to move the public away from debating, say, economic inequality or foreign policy is largely political. New Right strategists decided to focus on abortion and other sex-and-gender issues as a means to break open the New Deal coalition—that is, to entice poor, working-, and middle-class citizens to vote against their economic interests.

It worked, but not completely. Conservatives have not been able to overturn Roe v. Wade, which legalized abortion in the United States, or to change the public’s overall opinion on abortion. In 1975, a Gallup Poll showed that 22% of registered U.S. voters wanted a ban on all abortions; in 2015, 19% did. Today, 50% label themselves “pro-choice,” 44% “pro-life.” This stasis has forced anti-abortion advocates to resort to incremental measures. Many state laws now severely limit access to abortion, especially in rural areas and the “red” states. At their most hysterical, anti-abortion advocates have turned to violence. According to NARAL Pro-Choice America, they have murdered eight abortion providers and clinic staff and unsuccessfully attempted 17 more assassinations since 1973. In addition, they have committed 6,800 acts of violence—arson, bombings, assaults, threats—and more than 188,000 acts of disruption.

This does not count the Nov. 2015 terrorist attack at the Colorado Springs Planned Parenthood clinic. This terror has driven many physicians to refuse to do abortions. The shortage of providers and clinics is especially hard for low-income women.

On March 2, the Supreme Court was scheduled to hear opening arguments in Whole Woman’s Health v. Kirk Cole, which challenges a Texas law enacted under the pretense of protecting women. Activists are staking a lot on this attempt to stop the chipping away at abortion rights. The Texas law is the worst of several TRAP laws (Targeted Restrictions on Abortion Providers). A decision is expected in June. Some 98 amicus curiae (friend of the court) briefs have been filed opposing this and similar laws, and I co-wrote a brief with three other historians, which was then signed by 16 racially and sexually diverse historians who specialize in law, politics, and economics. Historians’ perspectives on this case are important because we situate our arguments in the long history of the denial of equal rights to women. The historical arguments concern not just abortion but many aspects of women’s lives, and thus the whole gender system.

TRAP laws share one false premise—that their purpose is to protect women. The historians’ brief uses two aspects of legal history to show the fraudulence of that claim. First is coverture, the system used to deprive women of civil and political rights for centuries in the Anglo-American legal system. Under coverture, when a woman married, her husband became her guardian, just as her father had been, and he “represented” her in all legal matters so as to “protect” her.


The Cost of Trap Laws

Texas’s anti-abortion laws, among the worst in the nation, require abortionists to have admitting privileges at a local hospital within 30 miles of a clinic, a requirement not usually made at clinics that provide other medical services. A woman must undergo an ultrasound exam, be shown the image, and have the image described to her. This ultrasound must be obtained at least 24 hours in advance of the abortion, thus requiring at least two separate visits and, for many women, paying for a hotel or driving long distances. Teenagers must have parental consent. The abortion must be performed in a surgical facility. If the woman or the abortionist prefers a medical to a D&C abortion (the medical form is the usual and safer form of first-trimester abortion), the woman is to make four visits to a licensed physician. For a third-trimester abortion, the provider must certify the medical indications supporting his or her judgment. This means that a woman’s choice or social or economic reasons do not meet the standard. All these provisions, of course, significantly raise the costs of abortion. 


Husbands controlled women’s labor, property, and bodies: she could not sue or be sued and could not enter a contract. He was entitled to her services as housekeeper, mother, and sexual partner. (He could not legally rape her because he was entitled to sex on demand.) He could use corporal “punishment” against her, force her to move wherever he chose, gain exclusive custody of children in case of a (difficult to achieve) divorce, and prevent her from attending school.

By this logic, women didn’t need to vote or serve on juries because husbands “represented” them. Gradually these male rights were ended by courts and state laws as a movement toward sex equality made most people realize that coverture was not protective but rather a means of depriving women of basic rights.

The second part of the brief concerns “protective” labor legislation enacted in the early 20th century as women were entering the wage-labor force in greater numbers. These state laws limited the occupations that women could enter, the hours they could work, and the locations and conditions in which they could work. The protective justification rested on women’s expected reproductive function, on the assumption that exertion might interfere with it. For example, women were barred from all sorts of athletic activities. Pregnant women were expected to rest and not allowed to work. (Do I need to say that these rules were rarely enforced when it came to poor women, especially women of color?) The rules were often contradictory: for example, women were not allowed to be bartenders but were allowed to serve drinks (even though they were more vulnerable to sexual harassment than they would have been behind the bar). Rules like these systematically confined women to the lowest paid jobs, and in doing so usually garnered support from labor unions, which fought to preserve the best jobs for men.

Put simply, our point is that “protecting” women not only disadvantaged them but also rested on false assumptions, notably that women’s primary destiny as mothers must be enforced by husbands and/or government; and especially that women are not capable of making their own decisions but must have government reminding them of the consequences of these decisions in a manner never applied to men.

Justice Antonin Scalia’s death could lead to a 4-to-4 decision, which would leave Texas’s (and other states’) phony protective laws in place. The most important task for progressives is, of course, to put pressure on the Senate to approve an Obama appointee to the Court.

Whatever the Supreme Court decision—and either way, it will not end the battle over reproductive rights—it is important for the U.S. public to see through these claims of protection and identify how they actually function to maintain sex inequality.


Linda Gordon teaches history at New York University. Her most recent books are Feminism Unfinished and Dorothea Lange: A Life Beyond Limits.

This article originally appeared in the spring 2016 issue of the Democratic Left magazine.

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