Gendered Citizenship: Women, Equality, and Abortion Policy

Abstract

Since the 1970s significant progress has been made in the area of women's rights, yet women lag behind men economically, politically, and socially. One reason for this persistent inequality between the sexes is that traditional gender attitudes regarding women's roles as wives and mothers compete with a definition of equality based on rights. Nowhere is this more evident than in the area of abortion policy. From 1865 to 1965, women's access to abortion (with rare exceptions) was completely prohibited; over the past 35 years, abortion has become far more available, but continues to be restricted. Through an analysis of abortion policy from 1965 to 2000, this article identifies the way in which a politics of motherhood conflicts with women's rights to full citizenship. It shows how attitudes regarding women's competency, first written into abortion law in the 19th century, and gender assumptions about their status as citizens, have affected and informed the debate over abortion policy, and have, in effect, limited their ability to achieve equality of citizenship with men.

Notes

¹ Before 1973, the majority of states either prohibited abortions except when a woman's life was endangered (29) or if her physical and mental health would be impaired (13). The remaining states either repealed their statutes in 1970, or placed other restrictions on abortion.

² On the legal aspects of abortion, see Eva Rubin, Abortion, Politics, and the Courts: Roe v. Wade and its Aftermath (Westport, CT: Greenwood Press, 1982); Mark A. Graber, Equal Choice, the Constitution, and Reproductive Politics (Princeton: Princeton University Press, 1996); and David J. Garrow, Liberty and Sexuality: The Right to Privacy and the Making of Roe v. Wade (New York: Macmillan International, 1994). On the social dimensions of abortion, see Kristin Luker, Abortion & the Politics of Motherhood (Berkeley: University of California Press, 1984); Faye D. Ginsburg, Contested Lives: The Abortion Debate in an American Community (Berkeley: University of California Press, 1989); and Celeste M. Condit, Decoding Abortion Rhetoric: Communicating Social Change (Bloomington, IL: University of Illinois Press, 1990). For a discussion of the political dimensions of the debate, see Barbara Hinkson Craig and David M. O'Brien, Abortion and American Politics (Chatham, NJ: Chatham House Publishers, 1993); Rosemary Nossiff, Before Roe: Abortion Policy in the States (Philadelphia: Temple University Press, 2001); and Raymond Tatalovich and Byron W. Daynes, The Politics of Abortion: A Study of Community Conflict in Public Policy Making (New York: Praeger, 1981).

³ Rosalind Pollack Petchesky, Abortion and Woman's Choice: The State, Sexuality, and Reproductive Freedom (New York: Longman, 1984), especially Chapters 2 and 3; and Catharine A. McKinnon, Towards a Feminist Theory of the State (Cambridge: Harvard University Press, 1989), Women Lives Men's Laws (Cambridge: Harvard University Press, 2005).

⁴ T. H. Marshall, Class, Citizenship, and Social Development (New York: Doubleday, 1964), pp. 71–72.

⁵ Carol C. Gould, Rethinking Democracy: Freedom, and Social Cooperation in Politics, Economy, and Society (Cambridge: Cambridge University Press, 1988), p. 32.

⁶ Sheila Shaver, “Body Rights, Social Rights and the Liberal Welfare State,” Critical Social Policy 13:3 (1993), p. 72.

⁷ Marshall, Class, Citizenship and Social Development; Judith Shklar, American Citizenship: The Quest for Inclusion (Cambridge: Harvard University Press, 1993), p. 2.

⁸ Alice Kessler-Harris, In Pursuit of Equity: Women, Men, and the Quest for Economic Citizenship in 20th Century America (Oxford: Oxford University Press, 2001), p. 12.

⁹ Suzanne Mettler, Dividing Citizens: Gender and Federalism in New Deal Policy (Ithaca: Cornell University Press, 1998), pp. 8–9.

¹⁰ Theda Skocpol, Protecting Soldiers and Mothers: The Political Origins of Social Policy (Cambridge: Harvard University Press, 1992), pp. 30–60; Mettler, Dividing Citizens, pp. 11–15.

¹¹ This was not the case for women of color, who, like their male counterparts, were not considered to be citizens. For a discussion of the relationship between eugenics and birth control in 19th century America, see Paul Popenoe and Roswell Johnson, “The Program of Eugenics and the Negro Race,” in Andrea Tone (ed.), Controlling Reproduction: An American History (Wilmington, DE: SR Books, 1997), pp. 163–168.

¹² Kathryn Kish Sklar, “The Historical Foundations of Women's Power in the Creation of the American State,” in Seth Koven and Sonya Michel (eds), Mothers of a New World: Maternalist Politics and the Origins of Welfare State (New York: Routledge, 1993), pp. 43–93; Nancy F. Cott, “Across the Great Divide: Women in Politics Before and After 1920,” in Louise A. Tilly and Patricia Gurin (eds), Women Politics and Change (New York: Russell Sage Foundation, 1992), pp. 153–176.

¹³ Mettler, Dividing Citizens, p. 9.

¹⁴ Mettler, Dividing Citizens, p. 24.

¹⁵ Mettler, Dividing Citizens, p. 24.

¹⁶  Griswold v. Connecticut, 381 US 479 (1965).

¹⁷ ALI code in Bo Schambelan, Roe v. Wade: The Complete Text of the Official U.S. Supreme Court Decision (Philadelphia: Running Press, 1992), pp. 82–83.

¹⁸ Condit, Decoding Abortion Rhetoric, p. 63.

¹⁹ Hole and Levine, Rebirth of Feminism, p. 89.

²⁰ On this point see Dorothy Roberts, Killing the Black Body: Race, Reproduction, and the Meaning of Liberty (New York: Pantheon Books, 1997), pp. 229–232.

²¹ Judith Hole and Ellen Levine, Rebirth of Feminism (New York: Quad> Books, New York Times Book Company, 1971), p. 63.

²²  United States v. Vuitch, 350 F. Supp. 1032 (D.D.C. 1969); People v. Belous, 71 Cal. 2d. 954, 458 P. 2d 194 (1969).

²³ James C. Mohr, Abortion in America: The Origins and Evolution of National Policy, 1800–1900 (New York: Oxford University Press, 1978), p. 22.

²⁴ During this period the women's movement consisted of two camps: the rights branch, which consisted of women who advocated change from within established political and social groups, and the liberation branch, whose members (often referred to as radical feminists) advocated change from outside channels, such as social movements, or who proposed replacing existing structures with new ones. In terms of the abortion debate, the rights branch favored changing the existing laws; the liberation branch favored repealing them. See Hole and Levine, Rebirth of Feminism, Chapters 1 and 2, for a detailed analysis of the differences between the camps.

²⁵ On the battle amongst feminists from the rights and liberation branches of the women's movement in New York over the 1970 abortion bill, see Lawrence Lader, Abortion II: Making the Revolution (Boston: Beacon Press, 1973), p. 130.

²⁶ Roberts, Killing the Black Body, p. 5.

²⁷  Roe v. Wade, 410 US 113 (1973), p. 178.

²⁸ Kristin Booth Glen, “A Laywoman's Historical Guide to the New York Disaster Area,” Feminist Studies 4 (1978), p. 9.

²⁹  Roe v. Wade, p. 177.

³⁰ MacKinnon, Toward a Feminist Theory of the State, p. 192.

³¹ On this point, see Lucinda Cissler, “Unfinished Business: Birth Control and Women's Liberation,” in Robin Morgan (ed.), Sisterhood in Powerful: An Anthology of Writings from the Women's Liberation Movement (New York: Random House, 1970), pp. 245–289, and Roberts, Killing the Black Body, pp. 229–243.

³² For a discussion of the various aspects of the term “choice,” see Condit, Decoding Abortion Rhetoric, p. 68.

³³ Gregg Ivers, American Constitutional Law: Power and Politics (New York: Houghton Mifflin, 2002), p. 522.

³⁴  Planned Parenthood of Central Missouri v. Danforth, 428 US 52 (1976). The Court upheld reporting requirements for abortions, but struck down restrictions limiting physicians' control over viability.

³⁵  Danforth, p. 803.

³⁶  Danforth, p. 805.

³⁷  Beal v. Doe, 432 US 438 (1977); Maher v. Roe, 432 US 464 (1977); Poelker v. Doe, 432 US 59 (1977).

³⁸  Maher v. Roe, p. 494.

³⁹  Maher v. Roe, p. 500.

⁴⁰ By 1989, 31 states had elected not to pay for elective abortions. Craig and O'Brien, Abortion and American Politics, p. 95.

⁴¹  Harris v. McRae, 448 US 297 (1980).

⁴²  Planned Parenthood of Kansas City v. Ashcroft, 464 US 476 (1983), pp. 741–742.

⁴³  City of Akron v. Akron Center for Reproductive Health, 462 US 416 (1983).

⁴⁴  Akron, pp. 715–716, 704–706.

⁴⁵  Akron, pp. 706–708.

⁴⁶  Akron, pp. 708–710.

⁴⁷  Akron, pp. 710–715.

⁴⁸  Akron, pp. 716–717.

⁴⁹  Akron, p. 718.

⁵⁰  Akron, p. 717.

⁵¹  Webster v. Reproductive Health Services, 492 US 490 (1989).

⁵² Craig and O'Brien, Abortion and American Politics, p. 280.

⁵³ Graber, Rethinking Abortion, p. 70.

⁵⁴  Webster, pp. 454–455.

⁵⁵  Webster, pp. 426–427.

⁵⁶ The regulations were part of abortion statutes passed in 1988 and 1989.

⁵⁷  Planned Parenthood of Southeastern Pennsylvania v. Casey, 112 S. Ct. 2791 (1992).

⁵⁸  Casey, p. 711.

⁵⁹  Casey, p. 711.

⁶⁰  Casey, pp. 711–712.

⁶¹  Casey, p. 720.

⁶²  Casey, pp. 722–728.

⁶³  Casey, p. 730.

⁶⁴ Craig and O'Brien, Abortion and American Politics, p. 251.

⁶⁵  Casey, p. 713.

⁶⁶  Stenberg v. Carhart, 530 US 914, 147 L Ed 2d 743, 120S Ct 2597 (2000).

⁶⁷  Stenberg v. Carhart, 530 US 914, 147 L Ed 2d 743, 120S Ct 2597 (2000), p. 760.

⁶⁸  Stenberg v. Carhart, 530 US 914, 147 L Ed 2d 743, 120S Ct 2597 (2000), pp. 781–782.

⁶⁹  Stenberg v. Carhart, 530 US 914, 147 L Ed 2d 743, 120S Ct 2597 (2000), p. 771.