Fetal Rights or Women’s Rights?

The Supreme Court seems poised to decide fetal life trumps the constitutional rights of living, breathing women and girls—which was the goal of anti-choice activists all along.

The March for Women’s Lives on April 1, 2004, in D.C. (Wikimedia Commons)

Following the Dec. 1 oral arguments in Dobbs v. Jackson Women’s Health, the Supreme Court appears poised to overturn Roe v. Wade this summer. Moving forward, the fundamental question at stake, then, is not the future of abortion access—but whether or not women count as equal citizens under the law. As Justice Brett Kavanaugh observed, abortion forces us to confront the competing interests of pregnant women and unborn fetuses. “The problem is you can’t accommodate both interests,” Kavanaugh remarked. “You have to pick.”

Beyond depriving women safe and legal abortions in more than half of the United States, the expected ruling will overturn 50 years of legal precedent establishing women as individual citizens in the eyes of the law, harkening back more than 100 years to a time when state and federal laws defined all women as mothers.

From the writing of the U.S Constitution until the second half of the 19th century, federal and state laws nearly always considered married women legal non-entities. Under the doctrine of coverture, a woman’s legal standing became subsumed under her husband’s upon marriage. Women had no right to own property, earn money, maintain custody of children in a rare instance of divorce, or represent themselves politically. In the final decades of the 1800s, women’s rights advocates succeeded, state-by-state, law-by-law, in securing some legal rights for married women.

And then new laws—many of which were crafted by well-intentioned reformers hoping to combat the dangers of unregulated industrialism—came on the books defining women, regardless of whether they had children, as mothers.

In 1908, the Supreme Court heard Muller v. Oregon, a case centering on women’s right to decide how many hours they worked. Curt Muller, a laundry owner, claimed Oregon’s law limiting how many hours a day women could work violated a woman’s right to contract as guaranteed by the 14th Amendment.

In a 9-0 decision, the Court maintained that women’s childbearing capacity so differentiated them from men that women must be considered, legally, “a class by herself” rather than as equal and autonomous citizens alongside men. Furthermore, the Court argued that the state was primarily interested in women as mothers.

“Healthy mothers are essential to vigorous offspring,” Justice David Brewer wrote in the unanimous ruling. “The physical wellbeing of woman becomes an object of public interest and care in order to preserve the strength and vigor of the race.” Following this decision, more than 1,000 state and federal statutes inscribed sex-based discrimination into law.

Suffragist Alice Paul penned the Equal Rights Amendment in 1923 to overturn these sex-based laws. But anti-sex discrimination statutes did not succeed until the 1970s when feminist activists and lawyers, including Ruth Bader Ginsburg, overturned them and replaced them with equity laws such as Title IX.

Outside the Supreme Court in June 2016 for Whole Woman’s Health v. Hellerstedt, which struck down an abortion clinic admitting privileges law out of Louisiana. (National Latina Institute for Reproductive Justice Instagram)

Even though Roe v. Wade guarantees abortion access under the right to privacy rather than equality (as RBG believed it should have done), it too must be understood as a cornerstone of the equity legislation passed in the 1970s. Along with Title IX and the Equal Rights Amendment (which overwhelmingly passed Congress in 1972, though it has yet to be ratified), Roe helped abolish the idea that women are inherently and most importantly mothers in the eyes of the state. In place of rulings such as Muller v. Oregon, the equity laws and court decisions of the 1970s established a legal precedent wherein women must be considered as individual citizens, deserving of equal rights and bodily autonomy.

Overturning Roe, then, may well also call into question the legal standing of women. As legal scholars Serena Mayeri, Melissa Murray and Reva Siegel explain in their amici curiae brief in the Dobbs case, HB 1510, the Mississippi law in question, violates the equal protection clause of the 14th Amendment. Laws which “classify on the basis of sex” have long since been overturned, and all sex-based laws are now, ostensibly, subject to “heightened scrutiny.”

The justification for HB 1510, however, does not pass the “heightened scrutiny” test, according to Mayeri, Murray and Siegel. To the contrary, the Mississippi law draws on 19th-century ideas “about women as destined for motherhood.”

Along with Title IX and the Equal Rights Amendment, Roe v. Wade helped abolish the idea that women are inherently and most importantly mothers in the eyes of the state. Overturning Roe, then, may well also call into question the legal standing of women.

Washington D.C., October 4, 2018. Thousands marched from The Prettyman Court House to the Supreme Court in opposition to the nomination of Brett Kavanaugh. (Susan Melkisethian / Flickr)

Mississippi’s HB 1510 outlaws abortion after 15 weeks, claiming that doing so protects both fetal life and women’s health. As Lynn Fitch, the Mississippi attorney general who argued the state’s case before the Supreme Court, frequently asserts, the law protects the unborn and “empowers” women. But, as Kavanaugh said, you can’t do both.

In the expected ruling, the Supreme Court will likely decide that fetal life trumps the constitutional rights of living, breathing girls and women. And, indeed, that has been the goal of anti-choice activists all along. Overturning Roe is not the end goal of the pro-life movement, as abortion law expert Mary Ziegler has established. Rather, they aim to establish fetal personhood under the 14th Amendment. 

If and when the Supreme Court overturns Roe v. Wade this summer, the ruling may well breathe new life into antiquated jurisprudence based on the premise that, in the eyes of the state, all women must be considered, first and foremost, as mothers whose interests are subsumed by those of their children, born and unborn.

What happens when the rights of the unborn prevail over those of living, breathing, working, loving and dreaming women and girls? Historically, women and girls suffer dire health, emotional, economic, career and personal consequences.

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Dr. Kimberly Hamlin is professor of history at Miami University in Oxford, Ohio, and the author of Free Thinker: Sex, Suffrage, and the Extraordinary Life of Helen Hamilton Gardener. A distinguished lecturer for the Organization of American Historians, Hamlin speaks about the history of women across the country and regularly contributes to the Washington Post, Smithsonian Magazine and other media. Follow her on Twitter @ProfessorHamlin.