The Constitutional Legacy of Seneca Falls
July 19 was the anniversary of the Seneca Falls Convention, the nation’s first women’s rights convention held in Seneca Falls, New York in 1848. This episode explores what happened at the historic convention, and how its legacy shaped the Constitution through the fight for women’s suffrage and the 19th Amendment and, later, landmark gender equality and reproductive rights cases, including Roe v. Wade. Women and law scholars Erika Bachiochi of the Ethics & Public Policy Center and Tracy A. Thomas of the University of Akron School of Law join host Jeffrey Rosen.
Erika Bachiochi is a fellow at the Ethics & Public Policy Center in D.C. and a research fellow at the Abigail Adams Institute. She was a Visiting Scholar at Harvard Law School from January 2018-19. She is the editor of two books, Women, Sex & the Church: A Case for Catholic Teaching and The Cost of “Choice”: Women Evaluate the Impact of Abortion and is a contributor to the blog Mirror of Justice.
Tracy A. Thomas is John F. Seiberling Chair of Constitutional Law and Director of the Constitutional Law Center at the University of Akron School of Law. She is the author of the book Elizabeth Cady Stanton and the Feminist Foundations of Family Law and the editor of West's annual volume of Women and the Law. She was also co-editor of Feminist Legal History: Essays on Women and Law and is editor of the “Gender & the Law Prof Blog.”
Jeffrey Rosen is the President and Chief Executive Officer of the National Constitution Center, the only institution in America chartered by Congress “to disseminate information about the United States Constitution on a nonpartisan basis.”
- Seneca Falls Convention Declaration of Sentiments
- The Declaration of Independence
- Letter from a Birmingham Jail
- Roe v. Wade (1973)
- Atkins v. Children's Hospital (1923)
- Home as Work: The First Woman's Rights Claims Concerning Wives' Household Labor, 1850-1880 by Reva Siegel
- Embodied Equality: Debunking Equal Protection Arguments for Abortion Rights by Erika Bachiochi
- Elizabeth Cady Stanton and the Feminist Foundations of Family Law by Tracy A. Thomas
Our Interactive Constitution is the leading digital resource about the debates and text behind the greatest vision of human freedom in history, the U.S. Constitution. Here, scholars from across the legal and philosophical spectrum interact with each other to explore the meaning of each provision of our founding document.
The 19th Amendment by Nancy Gertner and Gail Hariot
This episode was engineered and produced by Jackie McDermott with editing by Greg Scheckler. Research was provided by Lana Ulrich and the Constitutional Content Team.
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Jeffrey Rosen: [00:00:00] I'm Jeffrey Rosen, President and CEO of the National Constitution Center. Welcome to We the People, a weekly show of constitutional debate. The National Constitution Center is a nonpartisan nonprofit, chartered by Congress to increase awareness and understanding of the Constitution among the American people. July 19 was the anniversary of the Seneca Falls Convention, America's first women's rights convention, held in Seneca Falls, New York, in 1848. On this episode, we'll explore what happened at the convention, and how its constitutional legacy shaped America through the 19th amendment, which turns 100 next year, and through landmark cases of gender equality.
Joining us to discuss the constitutional legacy of Seneca Falls are two of America's leading scholars of women's legal history and gender law. Erika Bachiochi is a fellow at the Ethics and Public Policy Center in Washington, and a research fellow at the Abigail Adams Institute. She was a visiting scholar at Harvard Law school, and she is the editor of two books, Women, Sex, and the Church: A Case for Catholic Teaching, and The Cost of Choice: Women Evaluate the Impact of Abortion. She's also a contributor to the blog Mirror of Justice. Erika, it's wonderful to have you on the show.
Erika Bachiochi: [00:01:17] Thank you, Jeffrey.
Rosen: [00:01:18] Tracy A. Thomas is John F. Seiberling Chair of Constitutional Law, and director of The Constitutional Law Center at the University of Akron School of Law. She is the author of Elizabeth Cady Stanton and the Feminist Foundations of Family Law, and editor of West's annual volume, Women and the Law. She was also co-editor of Feminist Legal History: Essays on Women and the Law, and is co-editor of the Gender and The Law Prof Blog. Tracy, it's great to have you with us.
Tracy A. Thomas: [00:01:47] Thank you. Glad to be here.
Rosen: [00:01:49] This is such an important topic, and I think, let's just began with the Declaration of Sentiments issued at Seneca Falls on July 19, 1848. Listeners, you can check it out at The Constitution Center's blog. What's remarkable is that it's based on the Declaration of Independence. It begins, “We hold these truths to be self-evident, that all men and women are created equal,” and then has a list of grievances about the repeated injuries and usurpations on the part of man toward women, including, “He has never permitted her to exercise her inalienable right to the elective franchise. He has withheld from her rights which are given to the most ignorant and degraded men. He has made her, if married in the eyes of the law, civilly dead. He's taken from her all right and property, even of the wages she earns.” And it goes on. It's an absolutely fascinating document based on the Declaration. Erika, please help us begin by giving us some historical context. Where did this declaration come from, and why is it based so closely on the Declaration of Independence?
Bachiochi: [00:02:55] Yeah. I want to sort of speak to the legal, economic, and cultural context of this really remarkable document, but first, let's go all the way back to Abigail Adams and remember her. She was sort of a precursor in her letter to John Adams, obviously her husband, where she herself was the first to make this analogy between the common law status of married women, and coverture, and to the injustices of King George against the colonists. I think it's important to remember her legacy as being the one… We sort of remember her as saying, “Remember the ladies.” But she really talked about the tyranny of men and that sort of thing, and that if you don't remember the ladies, they will foment a rebellion, which of course they then came to do. But I think it's important just… Most, of course, listening to this podcast remember the law of coverture, which was appropriated by the founders as this kind of unquestioned common law backdrop to the national structure that they were erecting in the Constitution.
They looked to Blackstone, because that was really the only, the main guy they read on the law, and so I think it's important, just at the beginning of this, to quote that language of Blackstone. 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 everything. A woman lost the property rights that she had as a fem sole, a single woman. When she entered marriage, her husband actually gained the full use of that real property that she brought in, and then had the full rights to her personal property. He then, of course, was in exchange bound to protect her by law, but what was allowed in coverture, including disciplines and things like that, is abhorrent, obviously, to us today.
But I think it's also important to remember that he was understood, in this early understanding of the republican form of government, to be the political representative of the family. Right? There's one head patriarch of the family, and the woman is understood to be a member of the family, without her own individual rights, just as the children are members, but the backdrop of all of this is the real agrarianism of the time. Remember that most Americans are subsisting on the land in household production, and women are incredibly important as collaborative members of the family, in the interdependence. They didn't really have time, at the beginning there, because they're all subsisting, to really make issues of their subordination in the family. They had no rights or recognition of legal status, but they had this essential contribution which, of course, Tocqueville recognizes as he talks about democracy in America as women having this, the superiority of American women are what's going to bring about the success of the American Republic if, in fact, it will come to be, because of this idea of republican motherhood, which they understood as their most important work, which was inculcating personal virtue.
Because again, in the early republican understanding, the central tenet was that the political freedom that was promised required personal virtue. This was the high mission that women understood, and I love this quote by historian Elizabeth Fox Genevieve. She says, “No longer were women viewed as breeders who produce male heirs for families. Women as mothers came to viewed as guardians of individual character,” and so the historian Linda Gerber talks about how this understanding of republican motherhood among themselves really was this kind of seed that fomented into their work, first, of course, inside the home, through the household, very productive household economy. But then into their work outside the… Excuse me, outside the home, and began to give rise to their political sensibility, women's leadership in movements for abolition, of course, first and foremost, and then social purity, women's rights, and ultimately women's suffrage.
I think all of that is key, because what happens right along the time of Seneca Falls is the move in industrialization, and that, the importance of industrialization, where women's productive work in the home is being taken out of the home, and basically being done by men, is robbing her of some of that work, and then also changing how her work is viewed in the home.
Rosen: [00:07:36] Fascinating. Thank you so much for that. Tracy, Erika has told us about how women had a deprivation before Seneca Falls, both of their civil rights, such as rights of property through the coverture laws, where they were considered the agents of their husbands, and their political rights, where the husbands were the representatives of the family. Tell us more about that context. What sort of disabilities did women suffer under these coverture laws before 1848, and what, in particular, was the Declaration of Sentiments of 1848 designed to reform?
Thomas: [00:08:13] The Declaration of Sentiments was really designed to attack everything. It was a very holistic, broad-based, systemic attack on all of the social, religious, and legal aspects of coverture. Stanton takes on, Elizabeth Cady Stanton, the author of the Declaration of Sentiments, took on all of these social norms, but also how they were entrenched in the law. She herself had been trained in the law, read law. Her husband, father, brothers-in-law were all lawyers, so she was very familiar with how the law operated as a vehicle, and in the Declaration of Sentiments, and the Declaration of Sentiments, that terminology itself was something that had been used in the abolition movement, and in various conventions to declare the sentiments, the moral sentiments of the conveners. She adopts the Declaration of Sentiments title, but she uses the Declaration of Independence as her model for articulating all of these wrongs to women done through coverture.
The Declaration of Independence, it was obviously in the public's mind, it was something, a public icon. People understood that kind of revolutionary spirit, and so that was her, more of her political statement was to try to use that norm. The content of the Declaration of Sentiments really was quite wide sweeping, and it included the elective franchise, the vote, and that was actually probably its most controversial, not because of women voting was so controversial, because women had voted temporarily for a period of time in colonial New Jersey. Because the rest of many of the Quaker women, and the abolitionists who were at Seneca Falls did not believe in the political system, they found the political system corrupt, government corrupt, and so they were trying moral suasion to change the hearts and minds of the country as far as slavery.
They didn't want to play into that public governance, but Stanton did, because Stanton believed in the power of representation, and the power to change the law. The Declaration of Sentiments takes on every aspect of coverture. There are 18 specific demands in the law for the vote for custody of children, for the right to divorce, the right to be freedom from domestic chastisement, which punishment of your spouse or domestic violence, we would now say, guardianship of children, marital property, but also the third part that we often forget about the Declaration of Sentiments was the right to equality in the church. Women had sort of been labeled with this moral superiority, but it was actually an inferiority. They were not allowed to teach in the churches, speak in the churches. The pulpit talked about women's inferiority, back to stories of Eve.
Certainly the Quaker religion, especially the Quakers at Seneca Falls, very much believed in every individual's inner light, and right to equality. The third part of the Declaration of Sentiments also talks about women having the right and duty to speak, the right to speak in the churches, the right to their full happiness, autonomy, fear of action, so a very broad based itemization going against every limitation of women in society and law.
Rosen: [00:11:37] Thank you so much for that, and thank you for calling my attention to the third part of the Declaration, which I'm just reading, and as you say, it's absolutely fascinating in emphasizing, he allows her in church as well as state, but a subordinate position, claiming apostolic authority for exclusion from the ministry. He has usurped the prerogative of Jehovah Himself, claiming it as his right to assign for her a sphere of action, and that belongs to her conscious and to her God. Erika, can you please tell us more about Elizabeth Cady Stanton's conception of religious equality with men, and how it influenced her other views about women's equality more generally?
Bachiochi: [00:12:18] I think I should let the expert on Stanton really take care of Stanton, but I would want to call attention to Lucretia Mott, the Quaker minister who also was involved in helping to draft, how much was involved, what was written by whom. Obviously we know that Mott was a friend of William Lloyd Garrison, so certainly was part of that Garrisonian wing of the abolitionist movement, that Tracy spoke of, where she was much more interested in moral suasion, and so really took some issue with the idea of putting forward suffrage right away. I think a key part of what I would say is the Mott influence is another part, really attacking the double standard, the moral double standard, which ends up being, I think, a key part of their response to many of the ills that come about, and what hopefully we can talk in terms of voluntary motherhood. Lucretia Mott was an avid reader of Mary Wollstonecraft's 1792 Treatise Vindicating the Rights of Woman, and she was one who really was calling attention to that double standard.
Talking about how women had been held to this norm of chastity and no other virtue, and men weren't held to the norm of chastity, and so Lucretia Mott, I suspect, is the one, but who knows? Maybe I suspect it was also Stanton as well, but there's this great line about the… Created a false public sentiment by giving a world of a different moral code of… Sorry, a different code of morals for men and women, which by… Which moral delinquencies which excluded women from society and not only tolerated, but deemed of little account to man. When you look into the resolutions, you start to see, what is their response to that, and I think that that's sort of very interesting, is that they want to raise men. Their answer to the sexual double standard, the moral double standard is not to eradicate morals. It's to raise men, expect more from men, so the same amount of… This is in one of the resolutions.
The same amount of virtue, delicacy, and refinement of behavior that is required of women be required of men, and the same transgressions be visited with equal severity, which of course, to our ears sounds, well, severe. I think, too, getting back to the religious part, one of the beautiful parts of the resolutions is the very beginning, where they call about this great precept of nature, right? To our ears, there's this appeal to universal law, by which we judge human laws, which is really strikingly similar to what we then hear later in the Letter to Birmingham Jail, obviously by MLK. Here, I want to read this part. Whereas, and this is the first resolution, the great precept of nature is conceded that to be that, man shall pursue his own true and substantial happiness. Then they quote Blackstone here, which is interesting. “It is binding all over the globe, and all countries, and all times, no human laws are of any validity if contrary to this, and such of them as are valid derive all their force and their validity,” et cetera, et cetera.
Then they go on to talk about, well, what is equality between the two, between men and women? They find it in the capacities. They say the identity of the race and the capacities or capabilities, and responsibilities, and so that's really interesting, too, I think. They say, “Quality of human rights results necessarily from this identity of capabilities and responsibilities.” Rights are derived, then, from these shared responsibilities. Rights aren't sort of these free floating, self-determined initiatives on our part, but they actually flow from our responsibilities. I think, then they say, so if men are going to be out there, being responsible with their vote in politics, and responsible for the future of the country, then women, too, who have these equal responsibilities, equal moral responsibilities, which hey, men, you recognize in the home. You say that all the time. That's what republican motherhood is.
Then we, too, should have this sense, later, it comes to be understood by more and more women, that suffrage would then be, of course, how women could participate in these, with these moral responsibilities. I think it took time, obviously, well, decades to get there, and bringing on kind of the more conservative wing, with Francis Willard, and the Women Christian Temperance Union, who understood the suffrage as the home protection ballot, where… Then Jane Addams, too, who later in the early twentieth century, she talks about, this is just an extension of the responsibilities that women have in the home, which is to protect children, families, et cetera in the industrial conditions that were out there. Of course, women need the right to vote, to be able to protect all those things, and so I think that that part of the Resolutions is really quite interesting, too.
Rosen: [00:17:26] Fascinating. You have mentioned Stanton's endorsement of the idea of voluntary motherhood, or republican motherhood. She also, at different times, called it enlightened motherhood, and said that it included the woman's right to protect children, and her family in the context of the home to the same degree as men. Tracy, tell us about Stanton's notion of voluntary motherhood, or republican motherhood, and did it or did it not mean that Stanton was opposed to abortion?
Thomas: [00:18:04] Actually, each of those kinds of motherhood are slightly different, so republican motherhood is what Erika's been describing, which was more of the Revolutionary War, colonial aftermath period of women's contribution to the public as a citizen was in the home, in raising moral children, and in the sort of domestic sphere. Stanton didn't really prescribe to that ideal. In fact, she thought that was one of the sticking points to women's equality. Voluntary motherhood was actually an idea that was much broader than Stanton, but is certainly one she subscribed to. Voluntary motherhood was the critique of the unlimited marital sexual rights of husbands and men, and it was the idea that motherhood was often involuntary for women, because men, once married, you were said to consent to the marriage, and sexual activity at any point in time, without the right to withdraw that.
For instance, we had laws that didn't recognize marital rape. We didn't have domestic violence laws. We didn't have the right to withdraw consent, so women were criticizing that constant pregnancy, so we had women having 10, 12 children, back to back when they were still ill, and so women from various reform movements, from religious reform movements, and social reform movements, conservative women, progressive women, women really, one issue they very much agreed on was this voluntary motherhood challenge. This started, really, Sarah Grimke's writings in the 1830s, but Stanton quickly picked up on this, and definitely endorsed it. She took it to, I think, a different level. Her idea was the enlightened motherhood. Eventually, she'd get to this idea of enlightened motherhood, so for both. First, on the voluntary motherhood, her idea is that women have the right to choose, at any point in time, when they were to be mothers, so that's the voluntary part, and that it was the woman's right as the one who carried the child, and who cared for the child, biologically, and both caregiving wise, that it was her decision.
For Stanton, that meant that the way you enforced that decision was through abstinence, and through controlling sexual relations with spouse and then also through this double standard, through changing men's moral understanding, so that it became a different relationship with your spouse. She writes about a woman's right to bodily autonomy, controlling your body, that it is the woman's right alone to make that decision, free from patriarchy, whether individual husband or society. She, later, she gravitates to the notion of enlightened motherhood, and enlightened motherhood came out of her seeing so many women in these situations with multiple children, 12 children, back to back pregnancies, both the mother and the children sick, in poverty, and this notion that quality… There was this social norm as we get into immigration and nativism in America, that white Protestant women needed to reproduce more, and so it was sort of this quality of, quantity of children.
She sort of takes that on, and says women need to think about healthy pregnancies, and actualizing each child, and sort of not having so many, but having ones that you intend, and choice, and then in raising those. Her enlightened motherhood, and this is also a period of eugenics, eugenics starting early. It becomes something much more dark, and it was dark from the beginning, but it was this notion that maybe we can change our biological outcome. All of that together really emphasized Stanton's writings, that women are the ones making the choice. Her avenues for how that choice was made changed, beginning in 1870. Obscenity laws changed the ability to speak about reproductive rights and biological, although Stanton had a series of speeches she gave across the country on her tour, which she toured for a decade, where she would speak to women alone about health issues, and informing women about their body, and how they could control sexual intercourse, and but…
We didn't really talk about contraception like we do now. That comes a little bit later, with Margaret Sanger, but we… Abortion laws start to be criminalizing abortion beginning in the 1870s as well, so her avenue for enforcing this was different than we kind of think of it in today's terms.
Rosen: [00:23:05] Thank you for helping us understand the distinction between voluntary motherhood, choosing to be a mother through abstinence and enlightened motherhood, raising healthy children. Erika, you wrote a piece called Feminism and Abortion: What Would Susan Say, where you say Elizabeth Cady Stanton and Susan B. Anthony believed that giving women the right to vote so women might have the power and the influence to do away with the ghastly practice of abortion, and then you quote Stanton. There must be a remedy for such a crying evil as this, but where shall it be found? At least, where begin, if not in the complete enfranchisement and elevation of women. Tell us more about why you believe that Elizabeth Cady Stanton and Susan B. Anthony would have opposed the right to choose.
Bachiochi: [00:23:58] Yeah, I think it's great to look at Stanton, at Anthony, and then also at the Grimke sisters, Sarah Grimke's article, Marriage. We could also look at the words of the first woman to run for president, as the nominee of the Equal Rights Party, and that was the political party that backed the ERA at that time, with, she had as her running mate, the great abolitionist, Frederick Douglass. You look at all these women who, as the historian of birth control and really, abortion, Linda Gordon writes, and to echo what Tracy has said, is that this idea of voluntary motherhood, kind of the right to say no to husbands, was really sort of the underlying, sort of that foundation of every claim for women's rights. They really understood it, too, not only as the claim for rights, but also as something that would bring about an understanding, sort of a collaborative understanding of marriage, so there's this, not only a legal asymmetry at that time, with coverture laws, but also the sexual asymmetry, and caregiving asymmetries with regard to both who…
The man and the woman have sex together, and it is women who end up pregnant, and then at that time, and still in our time, are often the ones who are caring for all these children. Again, as Tracy pointed out, at that time, the threads to women's life, to women's health, of pregnancy, the fact that women couldn't access either education, many instances, certainly not at the same kind of education as men, but also occupations. If they did get into any occupations, they were paid little, as one of the complaints there in the declaration. They were forced often into marriage, and into prostitution in some cases, and so here, forced into marriage, right, one of the reasons that the temperance movement became so large, because women were finding, wanting to complain about their drunken husbands. This temperance movement went along with voluntary motherhood. Drunken husbands who were pushing themselves on women, what we would consider as marital rape today.
When looking at this kind of holding these two things together is, at this time, the states had laws prescribing abortion, in many cases, all the way to conception, except in cases where the life, the mother of the life, and sometimes health were in danger, especially right around the time of the 14th amendment. We see these laws across the country, and not… What women were doing at that point was, well, a couple of thing. I love in Tracy's book, where she points out, and you see this in a lot of the anti-abortion kind of the vitriolic, anti-woman kind of language that's used at that time about prostitution, about women who are being forced into abortion, all of that. What you see the women's rights advocates doing at that time is they're not pushing back against the restrictive laws themselves. They, too, are characterizing abortion and infanticide together, as child murder or abortion as anti-natal murder.
Again, you see this… Victoria Woodhull, the first nominee of the Equal Rights Party, having, talking about, here's a great quote where she talks about the rights of children. That is, individuals begin yet when they remain the fetus. She says, “Many women would be shocked at the very thought of killing their children after birth, deliberately destroy them previously. If there's any difference in the actual crime, we should be glad to have those that practice the latter pointed out. The truth of the matter is that just as much a murder to destroy life in its embryonic condition as it is to destroy it after fully developed form is attained. For that self same life that is taken,” but she's also the same person who writes, “When woman rises from sexual slavery to sexual freedom into the ownership and control of her sexual organs, and man is obliged to respect this freedom.”
There's this kind of holding these two things together, which we don't sort of see those things together, in terms of the way the abortion rights movement has really taken over all of feminist understanding, but if you think about owning and controlling one's sexual organs, so, or say, controlling one's body, right, we might say today, it didn't extend to this idea of owning, controlling the fate of one's unborn child, because that was another human being's body. This ownership of another was actually exactly the erroneous error that they were trying to seek to root out, in both coverture and in slavery. There was no extension, as Tracy and Linda Gordon both see, recognized in their own great work in the history, of seeing some sort of right to abortion. By the very contrary, it was seen that abortion was a wrong that was done to women, and so what did they do? They pushed back, again, not on the restrictive laws, but on this vitriolic language.
They wanted to show the underlying causes that were forcing women into abortion, and so they were laying the blame at the feet of, well, lustful men, and so that's what voluntary motherhood was all about, was really asking men to control their sexual impulses, to practice sexual self-mastery for the good of the relationship, et cetera, and of course, women's unequal status in society, so that they could not be forced into marriage, in order to basically take care of themselves, or of course, prostitution. That's where the twofold solution is, involuntary motherhood, and then obviously in education, first and foremost, but then as the movement wore on into enfranchisement of women as well.
Rosen: [00:29:49] Tracy, what does the 19th century history tell us about what Elizabeth Cady Stanton would have thought about Roe v. Wade? Reva Siegel has, of Yale Law School, has argued that the restrictions for abortion really arose in the mid-19th century because of doctors' efforts to close ranks to professional competition, and it was around 1859 that the American Medical Association secured a resolution condemning abortion as an unwarranted destruction of human life, and really just before, and then as you said, after the passage of the 14th amendment, that very restrictive abortion laws got on the books. Did Stanton and other attendees at Seneca Falls comment on those laws, and what was their position?
Thomas: [00:30:39] I think, first of all, when we're looking at history, I think we have to be careful about focusing on historical fact versus, and historical context, and then what arguments we can derive from those points. This is an area where that becomes really important. We're looking in historical fact. Not many people know the historical facts about the abortion laws, or the women's rights movement. We tend to lump all of these women together. If we say, if Susan B. Anthony said something, we attribute that to Stanton, et cetera. We've had recent incidents, right, in the press with two other very prominent authors, missing historical fact, misinterpreting, misunderstanding historical fact, and I think this is important for understanding, making questions about, what did Stanton would have said about Roe? The question is, what did Stanton engage about during the, if anything, during the abortion debate during her time, and then can we take anything of value with that for us today?
The short answer is that she said almost nothing. She did not engage directly with the criminalization of abortion efforts, as Erika alluded to. This was really… This specific debate was not… They didn't weigh in on it. What they weighed in on, again, as Erika said correctly, was the misogyny, that these attacks were that women are selfish, women are trying to be professional, women are killing children, and that that women reacted to that. What Stanton did say… We have, and I have spent a decade looking at her papers, so I know what she said versus many of the other women who we would need to rely on the scholars of their work for that, but there were four different occasions where she said something that referenced something that looks like abortion. She used the word abortion once, so all of these, where she acknowledged this as a problem stemming from women's lack of equality and lack of choice.
She responded in one writing, the one that you quoted earlier, to New York newspaper's articulation of abortion as a crying evil, so that quote comes from someone else, and she kind of excerpts that, and she kind of just skips over the moral issue, or the criminalization issue, and she just goes right to women's equality and women's franchisement. What that meant for her is, women need a voice in the law. If women have a voice in making the laws, we will see something very different. We will see women understanding why women resort to abortion. We will see women advocated for women to be on juries. Women were excluded from juries because of the historical English coverture laws, but also they were considered too weak, inferior, not intellectual, needed to be protected from what was in the court, so she said, “We need women in the courtroom to understand justifications, and mercy, as to why someone might commit infanticide.”
What she talked about more was infanticide, which is the killing of a child after its birth, and certainly the much more horrific and much more sensational idea, but she weighed in on several, including one big criminal trial, who… The Hester Vaughn trial, who… 18-year-old English immigrant who was sentenced to the death penalty for the supposed infanticide of her child. She was found in a tenement, German tenement house, not speaking the language of anyone there with a three-day-old infant dead next to her. There was no autopsy or inquiry, which may have proven that it was a stillbirth, or that, whether the child was even born alive, but Stanton took up her cause, and wrote tremendous volumes for the newspapers and speeches about this. She was taking even the more seemingly no justification for why you would kill a child who was born, and said, “But women may understand why,” and so that was certainly very provocative, and she was using that as a point.
She also defended Hester Vaughn by saying she had incompetent counsel. We didn't have proof of any of the things you would need in a criminal trial, but she took it as an occasion to say, “We need women making the laws.” That is an implicit reaction to men, the male legislatures, and the male gynecologist making the laws against abortion. It is true that again, just to put this in historical context, abortion had been a practice at common law, up until these criminalization laws, and up until the time of quickening, about more month four or five, midwives used various practices to restore menses, so to start periods again, which you would stop because you were pregnant. It was not a talked about, but it was a practice at common law in our history. The criminalization came out of the professionalism of the medical doctors from, taking from the midwives to the gynecologist who were male, and who excluded women from that profession.
It was also, though, a… It was not only that. It was also the male profession, sort of changing their idea of the moral reality, and then arguing that women did not have the moral authority and autonomy to make this decision, so I think Stanton's writings support that she was… All of this, voluntary motherhood, and her writings on infanticide, all go back to a woman's right to make the choice, to make a choice in the laws, and that we need women's voice in creating those rules.
Rosen: [00:36:41] Erika, Tracy has just argued that by insisting that women should have the right to vote, they were objecting to the ability of male physicians, and gynecologists to regulate abortion. You have written a piece in the Quinnipiac Law Review, A Punitive Right in Search of Constitutional Justifications: Understanding Planned Parenthood v. Casey's Equality Rationale and How It Undermines Women's Equality. You've also written about embodied equality, debunking equality protection arguments for abortion rights. Tell us about why you believe that the equality arguments for abortion rights, which are based on the claim that the laws regulating abortion in the 19th century were based on stereotypical views of male doctors toward women, are not persuasive, and why you think that the quality of rights perhaps point in another direction.
Bachiochi: [00:37:40] Sure, so I think, just as a precursor, looking at what the common law was doing prior to the greater scientific developments, where there was start… Began to basically be an understanding, pretty radical, new scientific understandings about embryology at the same time. Yes, men were keeping women out of the medical profession, but they were looking at those scientific developments, and wanting to basically update the common law. The common law had, since the 13th century, they had prohibited abortion only after, as Tracy was saying, the point where a pregnancy could be detected, and so they referred to this as animation, coming to life, or quickening, from Lord Coke's quick with child, or Blackstone's as soon as the infant is able to stir in the mother's womb, right? We have all this, and I think that it mistakenly is interpreted, and it was even done in the Roe case itself, as the sort of affirmative allowance of abortion before quickening, but what it really is looking at is the evidentiary limitations, right?
Due to the science of the time, due to the rather harsh penalties for homicide, and so you want to have good evidence, and how do you find that evidence when there's basically no ability to medically detect early abortion at that time. It's very ambiguous, and so it's difficult to prove, impossible to prosecute, and so that's why you see so few prosecutions, or, and the laws sort of remaining like that until there's these scientific developments. It's, again, why you start to see the women's rights advocates talking about this science themselves, understanding who it is who's in the womb, but I think one of the interesting points that Tracy makes about, and I think that it's right on, that Stanton, because of her legal education, because of seeing the political potential of women, that women should have a voice in the law. This is the real irony, is that in backing, for women backing Roe today, is that that's exactly what Roe didn't allow, was women's voice in the law.
Roe was decided by men in black robes, and basically took away all of those, the state laws, every one of them, all their form laws that has been compromises among women and men across the country. We see this today, that there are women on both sides of this issue, so if we want women's voices in the law, it makes sense to allow those things to be debated, basically by state legislatures, and certainly by getting more women into state legislatures, and obviously the Congress. I think that that voice of women is really key, is a place where Roe took that away from women, and men who would want to have a voice on these things. I think the other really important part of this is to really just put the idea of, the 19th century idea of voluntary motherhood side by side with what today we hear from abortion advocates, this idea of forced motherhood, because they seem kind of similar, right? Or as Betty Friedan put it, remember her, the first volume of The Feminine Mystique didn't mention abortion.
Sorry, the first statement of the National Organization for Women, which she founded, didn't include abortion. These were real statements about women being respected as persons, and looking at the discrimination held against them, especially in the workplace, and wanting to understand that they could think, and have professions, and be mothers, too, if they so choose, but if you put these things side by side, so you look when Friedan comes in 1967, she talks about the right to control the reproductive process, and the right of chosen motherhood. These are certainly echoing both Stanton and all of the voluntary motherhood proponents, that it's the same principle right there. The problem is, is that voluntary motherhood was achieved formerly through sexual abstinence, right? It's manifesting the couple's shared respect for the reproductive potential of sex, and the asymmetrical role of women's in that experience.
No longer did this right of chosen motherhood mean affirmatively choosing when to engage in the act that might make one a mother, but now it meant affirmatively choosing whether to end the life of one's child, and so it really flipped voluntary motherhood on its head. This original principle of seeking to protect against this, what they call anti-natal murder, right? They're saying, “What are the causes of this? Lustful men. Let's tell men no,” and I think it's especially interesting if you look, and I really want to follow… I think Katherine McKinnon in the 1980s. Robin West has sort of recapitulated some of her work, and just… I'm going to quote West here, and I think this is exactly right, and it brings us back to voluntary motherhood. West says, “The Roe approach shifts the focus away from addressing the social and sexual imbalances that result in unwanted pregnancies to the unwanted pregnancy itself, and so strongly suggests that the appropriate social and individual response to unwanted sex is to protect the decision to end the pregnancy.”
I'm not saying Robin West is pro-life. She's obviously pro-choice, but I want to just point out that that, that focusing on the social and sexual imbalance is what the voluntary motherhood advocates were trying to do. It's really sort of ironic that right at the time when women are coming to hold positions of power, into the 1970s, getting into the workplace, getting into better education, et cetera, equal opportunities, so then they abandon the earlier insights about the threats of undisciplined male sex, right? I just want to mention sort of me, too, that we still have these powerful men who are asserting themselves onto women, and so had we instead been doing what McKinnon and West call us to, what the voluntary motherhood advocates call us to, which is looking at those social and sexual imbalances. I think we could really understand better women's distinctive needs, desires, satisfaction. We look at the casual sex movement, or casual sex culture, sorry, that so many women are starting to bemoan.
It's a masculinization of sexuality, where intercourse is kind of the end all and be all, and I think all of these things need to be put into question. We need to look at the increase in sexual risk taking that comes about with easier access to abortion, obviously, which has been curtailed in some states now, pending constitutional review, but these are the really interesting questions that I think, looking back at this history gets us to grapple with, and should get us to grapple with, that I think haven't been, and I actually have a book that is almost complete, which is currently entitled Vindicating the Rights of Women Anew, where I want to look at what voluntary motherhood is asking us to look at, in terms of the sexual and social imbalances in sex. Because the sexual act is… That's where these women understood kind of the key questions of equality to be, and feminists have always understood that, right? Abortion really moves that to something else, and doesn't look at kind of the preconditions, which I think are really important.
Rosen: [00:45:18] Thanks so much for that. Congrats on the book. Very much looking forward to reading it, and I know the listeners will, as well. Tracy, in our final rounds, I want to explore the degree to which Stanton thought that the suffrage movement was linked to a broader access to the legal system, and much of your work is focused on that question. You've noted that early in the suffrage movement, the women's vote was clearly tied with the issue of temperance, and you've also written in Elizabeth Cady Stanton: The Notion of the Legal Class of Gender, that Stanton was trying to create a collective consciousness among women, and you say that Stanton's work to arouse women to their own subordination, and to unite women as a group to reform the laws is the first step to women identifying collectively, unless providing the social foundation to legal transformation. Tell us more about how Stanton believed that that collective identification would lead to legal reform, and what kind of legal reforms did she think it would lead to?
Thomas: [00:46:21] Yes, and we see that, really, beginning at Seneca Falls all the way through, right? When we think about women collectively, and the personal is political, and raising the collective conscious. We often think of the 1970s, and Gloria Steinem, and Betty Friedan, but really it was, began with Stanton, and it was really one of her key sticking points. From the very beginning, women would say to her, “I have all the rights I want,” and that became a title for one of her more famous speeches, that when she would try to convince women, or petition women, ask women to sign petitions for marital property rights, or voting rights, or child custody rights. They would say, “I have all the rights I want,” and so part of both the social movement as well as the legal movement for Stanton was to getting women to understand their commonalities, getting women and lawmakers to understand how gender was the basis upon which many of these norms and laws operated.
She started just, in these grassroots movement, with sharing stories, which is kind of a key feminist methodology, of just sharing stories, sharing narrative, understanding women's experience, and realized that whether you were a working class tavern owner, or an heiress with a million dollar farm, you both had restrictions based on gender. You could not have custody of your child or guardianship. You could have domestic chastisement by your husband. You could not own your marital property, and what was the similarity there, it was all that gender. Focusing in on… There were certainly other issues of race and class, but it was new for society to start to understand that gender was a commonality, and that gender was an inferiority, a disfavored class where penalties and lack of privilege attach to that gender. From that collectivity, then you get an ability to create a social and political movement for the vote, where you get temperance women joining, but you also get what becomes the basis, much, much later, of our constitutional doctrine of equal protection, beginning, when we finally had the US Supreme Court equal protection cases, in the 1970s.
We start to see the court, men on the court understand that gender is an immutable trait, an unchangeable factor upon which law and society operate to create inferior and deny rights. Understanding that there is that commonality for the court allows them to then look at laws, and say that we are stereotyping women, we are basing it on gender instead of the realities, and that is something the court needs to scrutinize, and question, and states must justify with valid, legitimate interest. Really, this is what Seneca Falls and the Declaration of Sentiments articulates very specific, 18 tangible, wholistic approaches, but it was part of this notion that women have to understand, what is at the heart of all of this? It is gender, and gender is a category that has been used to deny these rights, and that the law needs to change. Stanton, she had this wonderful ability to flip back and forth between the philosophical, the systemic, and the very concrete.
As she's making these collective challenges to the system, she's also saying, “How do we do this? We get women on juries. We need women on juries. We need women lawyers. We need women judges, and women doctors. We need women buying their own stoves in their homes. Don't ask your husband. Buy the stove you want,” so concrete solutions at the time were looking at systemic, and I think that is one of her significant contributions, and why she's really the leader, over time, of the women's movement, because she understood things on every level, legal, social, individualized. That has a much greater legacy than just simply the vote.
Rosen: [00:50:22] Erika, you have argued that the effort by pro-choice feminists to locate a right to choose in the Equal Protection Clause is unpersuasive, because the Equal Protection Clause governs only those regulations that discriminate between similarly situated people, and men and women are not similarly situated with regard to their ability to get pregnant. Do you agree with Tracy that Stanton's legacy supports a notion of collective identity for gender that might have legal implications in striking down laws that discriminate against women as a group, or do you have a more individual based notion of equality, based on the history?
Bachiochi: [00:51:09] Hmm. That's interesting. I think what Tracy said is right on. One of the chapters in my book really hails the work of Polly Murray, and Ruth Bader Ginsburg in the early and mid-1970s, and throwing to the wind those laws that really just based, categorized women on the basis of their reproductive potential, and not as individuals with their own capabilities, that were equal to men. I think the concern I have today is the real focus when it comes to equality on autonomy, because I think when we focus on autonomy, which is some of what Ginsburg's work then tends toward, especially in her looking at, and being the champion of abortion rights on the court, one of the biggest champion of abortion rights on the court, is really, it doesn't make room for the asymmetries that still exist, with regard to reproduction, and caregiving, and with regard to caregiving, not just that women take on, but that fathers take on as well.
I think it's no surprise that because of this kind of focus, as abortion rights is the sine qua non of the movement that we've… We still see that mothers are the ones… Women have made extraordinary gains in the workplace, and in education. We could spend a whole hour and more documenting those gains. It's incredible, but that we… What we don't see is the rights of caregivers, and of course, this is what American law really needs to be looking at, because of how really kind of awful we treat caregivers, both in getting time off to care, but just in all sorts of measures. I think that's where I think, I'd say that when we focus on sort of equality is this kind of autonomy that we end up promoting a cultural hostility toward pregnancy and motherhood, and so we're derailing these necessary supports that women, pregnant women deserve, and that caregivers, too, deserve. If there's one place where I think we could look back, I guess, in addition to voluntary motherhood, and the lessons that that would teach us, it would be in the work of the cause for joint property ownership, which of course, we don't have time to look at.
Reva Siegel, we've mentioned her before, the great legal scholar at Yale, has a great article, Home as Work, and I think there was this move for separate property ownership, but that the early women's rights advocates really were looking for joint property ownership, and by the 1970s and 80s, we finally have that, where women inherit at the same rates, or the same way that their husbands, should they predecease them, inherit that they own half of their, of what they've earned together. I think what joint property ownership can now show is that women or men, sometimes, when remain in the home, still don't have earnings, right? Looking at how we can look together, as a women's movement, for how we can start remunerating women in some way, and men who do that, to give them more of an equal basis, so that caregiving families, who are doing a great deal of sacrificing, especially financially, can not be held financially, be sacrificing more than those who are autonomous, unencumbered by care for children.
Rosen: [00:54:54] It's time for closing arguments in this completely fascinating discussion, which has revealed so much relevant and unfamiliar history, which points in all sorts of surprising directions, and I guess this is my final question. The ERA was first introduced by Alice Paul in 1923, after the 19th Amendment was ratified on the 75th anniversary of the original Seneca Falls Convention. Paul argued that we shall not be safe until the principle of equal rights is written into the framework of our government, and Justice Ginsburg, too, has argued that she believes that the ratification of the ERA is necessary to complete the promise of the 19th Amendment. Tracy, we'll begin with you. Would Stanton have supported a version of the ERA? What did she say about it, and how does the ERA fit into the goals of the Seneca Falls Convention as articulated in the Declaration of Sentiments?
Thomas: [00:55:55] I think the ERA is a shortcut to all of the things that were articulated in Seneca Falls, because again, we saw such a broad-based declaration of all of the various areas that needed to have equality, that the ERA would have just been a one legal way to do all of those things, by requiring inquiry of any time the law had a formal difference, or a formal denial of privilege based on gender. I think the ERA is important because it goes back to those first underpinnings in Seneca Falls, that it wasn't just about the vote. It was always about a complete restructuring of coverture, and the way you do that is by full constitutional, permanent equality for all women, that is as unchanging as we can make it in the law. Alice Paul understood that. Alice Paul understood that once we passed the 19th Amendment, that was only one of 18 demands that was only a piece of the political system, not the entire legal socia system that needed to change.
That's why she proposed it. Very early on, the first US Supreme Court case, one of the earliest Supreme Court cases on the 19th Amendment, Atkins v. DC Children's Hospital, said this. It said the 19th Amendment was not just about the vote. It was about changing the whole system of coverture, under which women would be treated differently, and in doing so, it struck down a maximum hours law for women workers. That's quickly changed, and that's what happens. After the 19th Amendment, which looked to be at least maybe some early interpretation, that it would respect, it would articulate this whole systemic change, then we start to get the battle between labor advocates and Alice Paul's ERA groups. Because the ERA started to look like it was challenging some of the occupational workplace laws, the minimum wage laws, the minimum hour laws, maximum hour laws, and so the unions versus the professions were kind of battling.
Women who were social feminists, and promoting laws in the workplace, and for working women, found themselves at odds with women who were promoting the ERA, but Alice Paul and her group of many lawyers, lawyers on both sides, but a lot of lawyers and professional women, tracked, did a study early on of over 500 state laws that, on various things, back to Seneca Falls again, on custody, property, employment, that all needed to be changed, all created formal barriers to women, and all would be changed with an ERA. The principles of the ERA have been there from the very beginning. Politics and different, this labor versus business battle, different presidencies, kind of stalled that, but I think the ERA is exactly what Seneca Falls was all about.
Rosen: [00:58:53] Erika, last word to you. Do you think that the ERA was what Seneca Falls was all about, or not, and as Virginia and other states are considering ratifying the ERA, are there conservatives who support the ERA or not?
Bachiochi: [00:59:13] I think that there probably would be, if there was not this kind of close, rhetorical kind of argument that is really within all pro-choice legal scholarship of equality with abortion rights. I think this is where you see the Equal Rights Amendment fail, is because it… Right around the time of Roe, feminist lawyers at that time were beginning to make these, link equality and abortion, and so you lose a lot of the New Deal Catholics. You lose a lot of those who would end up calling themselves pro-life feminists, who were great backers of the ERA, including Alice Paul herself, who make statements about being so pleased with all that had come for women, but then seeing real problems with abortion. I think that I would really worry about the risks of strict and absolute equality. I think what we have now is what some call, or scholars have called the de facto ERA, with intermediate scrutiny in the Equal Protection Clause.
I think that the risks of strict and absolute equality basically are that we tend to see as normative the unencumbered, traditionally male or masculine kind of lifestyle that are free of childcare responsibilities, or we look at the autonomous male body, that has sex and can walk away. That's not the case for women, and so we lose some of those asymmetries that are inherent, and then still present today, culturally and socially, that are important. I think I would be, now, though I probably would have supported the ERA back then, in some ways, I think that I would be, tend to be with those who were the labor advocates, who are arguing for specific bills for specific ills.
Rosen: [01:01:21] Thank you so much, Erika Bachiochi and Tracy Thomas for a truly illuminating, surprising, and deeply rewarding discussion of Seneca Falls, on its anniversary, and as we celebrate the hundredth anniversary of the 19th Amendment coming up next year, we'll very much look forward to convening you both again, and continuing this conversation. Erika, Tracy, thank you so much for joining.
Bachiochi: [01:01:48] Thank you, Jeff.
Thomas: [01:01:50] Thank you.
Rosen: [01:01:55] Today's show was engineered and produced by Jackie McDermott. Research was provided by Lana Ulrich, Larry Wilson, and Michael Boyd. Homework of the week, two great articles from our scholars, both of which are linked on the Constitutional Resource page at constitutioncenter.org. Please read Elizabeth Cady Stanton and the Notion of the Legal Class of Gender by Tracy Thomas. That is in the University of Akron Legal Studies Research Paper Series, and please also read Erika Bachiochi's Embodied Equality: Debunking Equality Protection Arguments for Abortion in the Harvard Journal of Law and Public Policy. Please also rate, review, and subscribe to We the People on Apple Podcasts and recommend the show to friends, colleagues, or anyone anywhere who is hungry for a weekly dose of constitutional debate, and remember, the National Constitution Center is a private nonprofit. We rely on the generosity, passion, and dedication for lifelong learning of people from across the country, who are inspired by our nonpartisan mission of constitutional education and debate.
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