Responsibilities of Full Citizenship

Given the privilege of not being drafted, women struggled to then argue that they deserved the same civil rights and opportunities as men who quite literally put their lives on the line for their nation. When women became active in the war effort in World War I, as nurses, Marines, and volunteering for the war effort, it helped the case of women and earned them suffrage. But suffrage did not bring about systematic changes in the economic preparation of young girls, thus stifling women’s potential career advancements and ability to provide for their families outside of their male relatives.

From World War I, women engaged in and supported the US military everywhere it went. Women served in the millions in World War II across the various branches of the armed forces and continued in the service in the Cold War and beyond. Today women have broken barriers in almost every branch of the armed services where they can serve in combat roles. Despite a lack of evidence, prejudices about women have periodically brought waves of critiques about how having women in the military threatens military readiness.

To this day, men face a burden of responsibility that women do not: the draft. This difference has justified denying women full equality under law in a number of ways to be elaborated on. During the Carter administration men challenged the constitutionality of the male-only draft. In that case, Rostker v. Goldberg, the Supreme Court upheld gender discrimination in the draft because women were excluded from combat roles in the military at that time, 1981. When the ban on women in combat was officially lifted in 2021 (note that women have unofficially fought in every war in US history, sometimes in cross-dress) the Court declined to hear another case that challenged women’s exemption in National Coalition for Men v. Selective Service System. Women’s continued exemption is gender discrimination based on “self-evident” ideas about who is responsible for protecting and defending the nation using immutable characteristics, not merit. Until the draft is either abolished or women are not excluded, women will struggle to earn equal rights. Note: women in the Soviet Union were drafted into combat roles in World War II.

Jury duty poses an equally complicated example. When it came to jury duty women long had an exemption, first as second class citizens, and later because jury duty would pull them from their domestic responsibilities, including childcare, where it was argued there was no substitute employee to fill in. Women accused of adultery or seeking custody of their children had to defend themselves in front of all male juries with male judges who often lacked sympathy for her experience. Wyoming was the first state to require women to serve on juries because they wanted a fair cross section of the population. It wasn’t until 1975. That women were required to serve on juries across the country. The Supreme Court's decision in Taylor v. Louisiana was a landmark moment. The Court ruled that systematic exclusion of women from jury pools was unconstitutional because it violated the Sixth Amendment right to a jury drawn from a “fair cross-section of the community.”

Of all the responsibilities of governance citizens are involved in, jury duty is complained about as it takes time away from family and work, and depending on the case can be a huge time commitment. Citizens called for jury duty often seek exemptions. Ruth Bader Ginsburg was adamant that women should have few exemptions from jury duty based on socially prescribed roles, such as childcare. Throughout her career, she noted that laws requiring different treatment of the sexes, even if seemingly helpful or tame, should be dismantled as discriminatory. In typical fashion, she represented a man in court to argue her case. In Duren v. Missouri, she challenged a law gave women an exception from jury duty for childrearing, but not men. Were there no single dads? In homes where dads and moms worked, there would be unequal impact. She argued that if caregiving was an exemption, it should be applied equally to benefit men. The argument in essence claimed that if women, and women only, continue to be given these exceptions it will perpetuate the idea that it is women’s role to do the childcare. For Ginsburg, equality under law allowed women, and men who are equal, but not the same, to be defined by who they are not by their immutable characteristics.

Charity Adams Inspects 6888 Battalion[1]

Women’s Rights are Civil Rights

The Civil Rights Act of 1964 outlawed discrimination on the basis of race, color, religion, and national origin in public accommodations, schools, and employment. Sex discrimination, however, was not originally part of the bill. It was added at the last minute to Title VII by Congressman Howard Smith of Virginia, an opponent of civil rights legislation, likely as a tactic to derail the bill.1 Although Smith had long supported the Equal Rights Amendment, most historians agree that his amendment was offered to weaken or block the Civil Rights Act, not to advance women’s rights. His strategy backfired, and President Lyndon B. Johnson signed the Act into law on July 2, 1964.

After the Act’s passage, the federal government began drafting regulations to enforce it. Executive Order 11246, issued in 1965 to guide compliance with civil rights rules for federal contractors, notably omitted protections against sex discrimination. Women’s organizations and advocates quickly noticed the exclusion. Leaders of professional women’s groups and grassroots activists wrote to President Johnson urging him to extend the order’s protections to women, arguing that the promise of Title VII could not be realized without enforcement mechanisms.

The newly founded National Organization for Women (NOW), created in 1966, became a major force in pushing the administration to act. While acknowledging Johnson’s public support for the advancement of women, NOW criticized both the omission of sex from Executive Order 11246 and the Equal Employment Opportunity Commission’s weak enforcement of sex discrimination claims. When Johnson’s 1967 message to Congress focused solely on racial discrimination in employment, NOW again reminded him that the Civil Rights Act also prohibited discrimination based on sex.

Johnson eventually responded by issuing Executive Order 11375 in October 1967, which finally added sex discrimination to the federal government's ban on discriminatory employment practices for contractors. Women’s groups, including NOW, the American Association of University Women, and Black women’s organizations such as the National Association of Media Women and Delta Sigma Theta, celebrated the correction. Even so, NOW leaders remained frustrated with the EEOC’s reluctance to fully enforce the law, a concern underscored by Aileen Hernandez, who had resigned from the EEOC earlier in protest.

The attitudes of law makers around the Civil Rights Act are illustrative of the general pattern in US legal history that women were not treated as a separate class and that their discrimination was so commonplace as to not be considered discrimination. Perhaps the biggest culprit was the persistently unequal education boys and girls received. Perhaps the most significant legislation impacting girls and women was the Title IX legislation championed by Patsy Mink, an Asian-American member of the US House of Representatives. She co-authored and sponsored the Title IX, officially known as the Education Amendments of 1972 to the Civil Rights Act of 1964. Title IX banned discrimination on the basis of sex in schools receiving public funding. This legislation was interpreted to protect girls from sexual harassment and discrimination. It ensured that if an opportunity existed for boys, it should exist for girls too. Mink was a strong advocate for gender equality and worked tirelessly to eliminate gender-based discrimination in education. Patsy Mink's personal experiences and her commitment to equal opportunity for women in education fueled her dedication to this cause.

While Title IX made headlines for its impact on sports programs, probably the most significant impact was curbing discrimination that had long term impacts on women’s future careers and lives. In schools girls had been segregated into classes that taught them the skills of a housekeeper, while boys learned  a trade or more “serious” college academics. Girls who took those courses were often the only females in the room and faced harassment from the teachers and students alike. 

Several Supreme Court cases protected students from harassment by their peers and teachers. In the 1999 case, Davis v. Monroe County Board of Education, the Supreme Court clarified the rules for holding schools responsible for student-on-student sexual harassment under Title IX. The case involved a fifth-grade student named LaShonda Davis, who was sexually harassed by another student. Despite LaShonda's complaints, the school did not take action. LaShonda's parents sued the school board, claiming that the school had violated Title IX.

The Supreme Court decided that a school district can be held responsible for student-on-student sexual harassment if they knew about it and do nothing and if the harassment was severe, widespread, and created an unfriendly environment that affected the victim's education. This ruling stated that schools must address and prevent sexual harassment between students to ensure a safe learning environment.

Another case protected students from teacher harassment. In Gebser v. Lago Vista Independent School District the Supreme Court dealt with the issue of liability for sexual harassment by a school employee under Title IX. Alida Star Gebser, a child, had a sexual relationship with a teacher at Lago Vista High School, something considered “statutory rape.”Gebser and her mother sued the school district, claiming that the school knew about the teacher's misconduct but did not take appropriate action. The Supreme Court decided that a school district can be held responsible for sexual harassment by a teacher under Title IX if they had actual knowledge of the harassment and ignored it, a major win against predatory culture in schools. In this and other cases, the government consistently held that schools should be free from harassment so that kids can go there to learn, including girls.

​      Title IX gave women a chance at equal opportunities in school. Girls learned how to be leaders through their engagement in sports and over the next several decades not only matched men in college graduation rates, but surpassed them. (The concern for the status of boys with respect to academic achievement is valid and important). But did that equality extend beyond school? What happened when girls entered the world?

Reproductive Justice

Because of society’s hierarchical structure and because most laws are written to protect (male) lawmakers’ interests, few laws protected women and mothers prior to the mid-twentieth century. In marriage, women had some protections under laws that ensured the father would provide for his children, but outside of marriage women had few options. It wasn’t until 1950 that Wisconsin became the first state to enact a child support law that required fathers to provide financial support for their children, but there was and remains little enforcement of this and similar laws. Even today, while child support laws are common, fathers are not required to provide support for pregnant mothers or help with hospital bills. Following Wisconsin, other states gradually implemented their own child support laws, but since this was before reliable paternity tests, it was difficult to establish paternity.

The patriarchal system in which elite men hold power and poor men and most women have little agency caused women to almost disappear in marriage. Married women could not open bank accounts without their husbands’ signatures until 1974, and women were designated as their husband’s wives on official documents such as passports. In the workforce, women still earned a fraction of what men made and there were few protections for women if they became pregnant. On the other hand, a man could have sex and not acknowledge the pregnancy, support the woman during the pregnancy and birth, and fail to provide for the child, leaving the risks and expense of childbirth and childrearing on the woman.

Divorce was extremely difficult for women to acquire. Established laws gave men more choice over when they could divorce. Traditionally, women  relied on men for financial support, so divorce was often detrimental to women’s financial situation. Common reasons for divorce included adultery, abandonment, and cruelty, but proving these grounds was often challenging for women. Additionally, divorce proceedings could be costly, time-consuming, and required significant evidence and witnesses. Some states introduced laws that allowed women to petition for divorce on grounds of desertion or extreme cruelty. However, even with these provisions, women often faced significant legal and societal obstacles when seeking divorce. Furthermore, divorce often imposed a social stigma on women. These vestiges of 19th century ideology made women dependent on men to provide for them and their children. Divorced women were also at a disadvantage in terms of property rights, child custody, and financial support. It wasn’t until the 1970s that “no-fault divorce” became more common, but even this innovation did not solve the problem of financial hardship for many divorced women.

Moral and social convention dictated that women not engage in sex before marriage. Marriage theoretically provided a woman with financial stability and gave a man  social status and sexual access. Once in a marriage, however, there were few options for women to leave, and there were repercussions for her socially and economically if she did. If a woman became pregnant out of wedlock, her refusal to adhere to social and moral conventions meant that the father of the child was not obligated to provide for her or their child. This created a system wherein women were punished or denied protections if they stepped out of line.

By the early twentieth century, women pressured state legislatures to enact laws that would make them better able to provide for their children without men. They also began to analyze the root cause of the problem: sex. If women could increase their control over pregnancy, they could have greater financial freedom and plan their lives around work, family, and children. This concept of control over your body is called “Reproductive Freedom.” Reproductive Freedom cannot exist if a woman has no ability to control what happens to her body, and without control over her body, women lack freedom entirely. This is deeply important, especially for women for whom pregnancy carries health risks such as high blood pressure, preeclampsia, gestational diabetes, genetic birth defects, and more.

These are the challenges faced by women who have consensual sex. There are also cases where people are coerced and forced into sexual acts. This is called rape. Rape was too common, because the entire social and legal landscape was built to protect men and the power they had over women. Today, one in four women have experienced attempted or completed rape. 

For women of color, sexual abuse was a holdover from the culture of slavery throughout the United States. Enslaved women were “owned” by men who claimed access to their bodies and to any children born of sexual encounters between master and slave. Enslaved mothers had no choice over whether they had sex with the master and no rights to her children after they were born. In the decades after slavery, the rape culture persisted., especially in the former slave-owning Confederacy.

Reproductive Freedom is important for women when all the scales of the system are tipped to favor men. It protects women and ensures their children are raised in a supportive environment. What does Reproductive Freedom look like? Most advocates agree that it includes the freedom to have sex or not, access to contraception (birth control), access to abortion, parental leave to keep your job while you birth and raise an infant in its early months, access to affordable childcare, and tax breaks for single parents, among other things. These rights were the subject of battles fought during the late 19th century to today.  

Scientists and their discoveries in the 20th century were crucial to understanding human reproduction and getting to a place where scientific understanding and legal frameworks could shift to create opportunity and freedom for women. In the late 1950s early 1960s, a scientific revolution made contraceptives easier and more effective. As early as the 1940s, Margaret Sanger, as president of Planned Parenthood, closely monitored and funded birth control research. Sanger's friend, Katharine Dexter McCormick, generously funded research for an oral contraceptive. McCormick was a women's rights advocate and a graduate of MIT. She contributed to the suffrage movement and League of Women Voters. After her husband's passing, she pledged $10,000 and later provided annual contributions exceeding $150,000 annually for contraceptive research. 

The development of the oral contraceptive relied on ancient Aztec medical traditions. Russell Marker discovered the contraceptive properties of the Barbasco root, from which progestin was extracted and combined with estrogen by Gregory Pincus to create the first pill at the Worcester (Massachusetts) Foundation for Experimental Biology. McCormick funded initial clinical trials conducted by Dr. John Rock, a renowned gynecologist and devout Catholic.

To circumvent the restrictive laws relating to contraception in Massachusetts, Rock chose Puerto Rico for trials, where contraception was legal, birth control clinics existed, and trusted US-trained medical practitioners were present. Puerto Rican women desired effective birth control. The trials began in April 1956. The FDA approved the pill for menstrual regulation in 1957 and for sale in 1960. While this was an important milestone, it is important to recognize that these trials in Puerto Rico were problematic. As testing evolved from spermicides and jellies, which are far less effective, some scientists ascribed their lower success rates to Puerto Rican women’s presumed fecundity, hypersexuality, and lower intelligence. Though many Puerto Rican women wanted access to birth control, this also put them in direct contact with white American scientists who came to Puerto Rico with their own racial attitudes that were informed by decades of US imperialism on the island. In Puerto Rico, abuses ran rampant–by the 1980s, it was discovered that more than ⅓ of Puerto Rican women had been coerced into sterilization procedures–la operación–or permanent birth control.

Enovid, the first oral contraceptive, gained popularity, with one in four married women under 45 using it by 1965. Sanger's efforts established family planning as the norm, significantly reducing unintended pregnancies. The first pill had higher hormone levels than necessary, unlike current lower-dose pills and thus had numerous side effects. It took time for scientists to figure out the lowest effective dosages.

Estelle Griswold[2]

The 1960s saw great public liberalization on sexual issues. While extramarital sexual relationships had existed throughout history, they were often cast as promiscuous and penalized the women for any children that resulted from them. The 1960s saw a huge swing in public opinion toward sexual relationships outside marriage and a woman’s freedom to be sexually active on her own terms. The Free Love movement of the 1960s championed the idea that consensual sexual relationships should not be governed by law and should be entered into or ended at the discretion of the individuals involved. Women should be allowed to choose their partners without the pressure of lifelong commitment. Critics of the movement included those who felt it justified promiscuous behavior. Others, including feminists, saw Free Love as an extension of male dominance of women giving them the opportunity to have sex without commitment of marriage and the responsibility to support any children that came from sexual relations. 

Free Love was seen as promiscuous partially because it required contraception or risk ending pregnancy. Contraception was illegal throughout the US because of the 19th Century Comstock Laws that prohibited the mailing and dissemination of contraceptives. Estelle Griswold, who was the executive director of the Planned Parenthood League of Connecticut at the time, and Dr. C. Lee Buxton, a physician and a professor at the Yale School of Medicine, sought to challenge the Comstock Laws at the Supreme Court. Recognizing that married couples had the strongest case, they represented three couples with compelling circumstances, including life-threatening pregnancies and stillbirths, but their initial lawsuit, Poe v. Ullman, was dismissed by the U.S. Supreme Court because they lacked standing to bring the case.

Determined to force the issue, Griswold opened a Planned Parenthood clinic in New Haven, where she and Buxton openly provided contraceptives. This led to their arrest and prosecution, creating the grounds for a new case. The new case focused on a married couple in which the woman had health concerns that made pregnancy dangerous. Contraception, they argued, was necessary for them to enjoy the same marital relations as other couples without risking the woman’s life.

In Griswold v. Connecticut, attorney Thomas Emerson argued that the law violated the 1st, 9th, and 14th Amendments, focusing particularly on the concept of a constitutional “right to privacy.” In a landmark 1965 decision, the Supreme Court ruled 7-2 in favor of Griswold, recognizing a "zone of privacy" within marriage was protected by the Constitution. While it was a breakthrough in reproductive freedom, the logic used by the court was inherently patriarchal. The Court essentially ruled that a husband had a right to have sex with his wife and laws against contraception hindered that right in this case. This ruling not only invalidated Connecticut's contraceptive ban but also laid the foundation for future cases on privacy, reproductive rights, and personal autonomy, including Eisenstadt v. Baird which opened contraceptives to unmarried couples, Roe v. Wade which created a limited right to abortion, and Obergefell v. Hodges which legalized gay marriage.

Reproductive freedom isn’t just about preventing pregnancy, it’s about the freedom to decide what happens to one’s body, financial future, and the choice to be a mom. Some people have argued that consenting to sex is tacit consent to be a mother, but the long history of the patriarchy shows that the same tacit consent has not fallen equally on men with fatherhood. Therefore, some feminists argue that this argument is rooted in misogyny and a sexual double standard for women. 

Abortion is a broad medical term that refers to termination of a pregnancy. It includes spontaneous abortions and induced abortions. Spontaneous abortions are often euphemistically referred to as “miscarriages;” however, in professional medical parlance (like the GTPAL acronym that defines a women’s reproductive medical history), the term is abortion.

When it comes to induced abortions, they can be performed at any stage of a pregnancy; however, according to data from 2020, 93% of abortions happen before 13-weeks gestation (within the first trimester). This is before the mother is noticeably pregnant, before the fetus can be felt moving around, and before fetal viability. Abortions before nine weeks are typically done using medications that block hormone signals to the pregnancy and cause the uterus to contract and expel the embryo, a term for the cells that eventually become a fetus at 9 weeks.

Statistically, 5.8% of abortions occur between 14 and 20 weeks of pregnancy, which is in the second trimester. Twenty20 weeks is the time when fetal movement can be felt. Induced abortions that occur in the second and third trimester almost always are performed because of potential health risks to the pregnant woman or fetus. As it stands, most prenatal screenings for fetal diseases or defects cannot be performed until the second trimester, thus delaying when it is feasible for a woman who discovers her fetus carries a disease to acquire an abortion. Less than 1% of abortions happen after 20 weeks and it is usually the result of an extreme, health related circumstance that poses a threat to the life of the fetus, the mother or both. These abortions are performed surgically and involve a doctor using tools to terminate the pregnancy. 

In the politicized discussions around abortion, much has been made about the pain mothers and, or fetus’ feel during abortion. Studies have shown that for pregnant people, abortion is safer than carrying a pregnancy to term and birth. This was also true for most of US history. Pregnancy is not a health-neutral event and carries with it risks, including the risk of death. For the embryo or fetus, abortion ends the lifelike activity, but it is debated by professionals how painful this is and the evidence varies by when the abortion is performed. Public opinion polls have varied since the 1960s on abortion. Most people agree it is ending life, but most also feel it’s different because the fetus is not fully developed and the circumstances around pregnancy can vary, especially in cases of rape or incest—where a great deal of nuanced perspective can be found in polling.

Throughout the early 20th century women and their doctors were put on trial for violating state abortion laws. By 1910, abortion was illegal in every state in the US. Some states had built in exceptions to save the mother’s life. The decision of when a mother’s life was in jeopardy was left to doctors, who were almost all men, and these standards were not universal. 

Criminalizing abortion meant that more women turned away from qualified people to have abortions. Getting abortions under extreme circumstances by people willing to do something illegal, resulted in an increased death toll for pregnant women. Abortion was not inherently unsafe, illegal abortion was. In 1930, nearly 2,700 US women died from an illegal abortion, or one in five maternal deaths that year.

Doctors caught performing abortions were tried and lost their medical licenses. Increasingly, the press covered stories about women who had died from an illegal abortion. Women’s bodies were found in barrels, chopped up in suitcases, all after a botched abortion by someone unqualified. People began calling for abortion law reform

Women began appearing in court to testify as to why they wanted an abortion in the first place. Abortion was so stigmatized that women never talked about it. Stories of safe, successful abortions were never in the press; however, stories about illegal abortions that resulted in death sold papers. Thus, the effect of criminalization was that women who were accused were forced to talk about it publicly. Women who believed they would never get an abortion listened to abortion stories and empathized with the mothers choice, given her circumstances. Criminalization forced women to talk about their darkest moments in a very public forum. 

In 1955, Planned Parenthood called for a national conference on abortion. The few doctors who attended called for greater flexibility for doctors to perform abortions. These doctors had personally witnessed women dying from pregnancy-related causes were unable to help them or watched women carry babies who could not survive more than a few days. 

Despite the stereotype of the young, naive, and sexually promiscuous girls being the ones who get abortions, studies showed that women who were already mothers were more likely to get abortions and that religiosity was not a factor. Women of all faiths got abortions.

In 1964, abortion law reform activists registered their first national group: the Association for the Study of Abortion (ASA). Then in 1966, a group of nine highly regarded California doctors faced a lawsuit for providing abortions to women who had contracted rubella, a disease that could harm unborn babies. However, doctors from all over the country rallied to support these doctors, with even 128 medical school deans joining their defense. As a result, one of the earliest changes to abortion laws in the United States occurred. California revised its strict ban on abortion to permit hospital committees to review and approve requests for the procedure.

Studies in the 1960s showed that poor women and their families were affected to a greater extent from abortion bans. One study examined low-income women in New York City and found that 8% had tried to end a pregnancy through illegal means. Additionally, 38% reported that someone they knew had attempted to get an abortion. Among the low-income women who admitted having an abortion, 77% said they had attempted a self-induced procedure, while only a small fraction 2% involved a medical professional at all.

With only limited support from doctors, women organized themselves to deliver abortion services. For example, the Abortion Counseling Service of Women’s Liberation was an underground organization of women in Chicago that offered abortions to low-income women who could not afford to travel to somewhere abortion was legal. Often just called the Jane Collective or just Jane, women learned of the service through word of mouth or through signs posted in the city or ads in newspapers: “Pregnant?  Worried?  Call Jane.” The women of Jane taught themselves the procedure and performed an estimated 11,000 abortions in the years before the Roe v Wade decision made abortion legal in all 50 states.

By the end of the 1960s there was a full-fledged movement to repeal abortion bans. National Association for the Repeal of Abortion Laws (NARAL) was founded in 1969. NARAL became the first nationwide organization dedicated exclusively to advocating for the legalization of abortion. Left and right states were repealing or modifying their abortion stances. Alaska, Hawaii, New York, and Washington completely eliminated their laws prohibiting abortion, while 13 other states introduced changes that broadened the circumstances under which abortion was permitted. Instead of solely permitting abortion to save the life of the mother, these reforms allowed for abortion in situations where the pregnancy posed risks to the patient's physical or mental health, when there were fetal abnormalities, or when the pregnancy resulted from rape or incest. However, much of these changes were piecemeal and state by state. It would not be until 1973 that the question of abortion was answered federally.

The Roe v. Wade decision was a landmark ruling by the United States Supreme Court in 1973 that legalized abortion across the country. The case originated in Texas and involved a woman named Norma McCorvey, referred to as "Jane Roe" to protect her identity, who sought to terminate her pregnancy but was denied access to legal abortion under Texas law. In 1969, when McCorvey became pregnant, she was unmarried, financially struggling, and unable to afford to travel to a state where abortion was legal. This also wasn’t her first pregnancy. Texas law at the time prohibited abortion except to save the life of the mother or in instances of rape. McCorvey's lawyers, Linda Coffee and Sarah Weddington, sought a representative plaintiff who could best illustrate the difficulties faced by women seeking abortions. They aimed to demonstrate that the Texas law violated women's constitutional right to privacy. They argued that women and their families had a right to make private decisions about their medical treatment without the oversight of the government. Other medical procedures did not receive so much scrutiny from the government, and abortion, like other procedures, is a medical decision that in some cases, saves lives, and in others protects health and other areas of wellness like financial and social. McCorvey's circumstances and her inability to access a safe and legal abortion made her a suitable candidate for the case.

Ultimately, building on Griswold v. Connecticut, the Supreme Court, in a 7-2 decision, held that a woman's constitutional right to privacy, as protected by the 14th Amendment, includes the right to choose whether to have an abortion. It established a framework based on testimony from doctors using the trimesters of pregnancy to determine when and how states could regulate abortion.

In the first trimester, the Court held that the decision to have an abortion should be solely between a woman and her doctor, with minimal government interference. Since the fetus was not viable and legal abortion in the first trimester posed few medical risks, the government’s right to regulate was limited. In the second trimester, the state has a legitimate interest in protecting the woman's health and may regulate abortion to some degree–particularly since second trimester abortions were more dangerous than first trimester abortions, and the fetus was approaching viability. Later court decisions would indicate that these regulations should not impose an "undue burden" on a woman's right to access abortion. In the third trimester, the state's interest in protecting potential life becomes more compelling, and it may prohibit abortion except when necessary to protect the woman's life or health. With the court’s decision in Roe v. Wade, the federal government granted women a right to bodily autonomy, to make their own decisions in family planning, and to engage in sexual relations with the same freedom as men. It's worth noting that McCorvey never had an abortion during the legal proceedings. By the time the Supreme Court ruled in 1973, she had given birth and placed her child up for adoption. 

After the legalization of abortion nationwide, Ms. Magazine, a feminist publication, ran a cover picture of Gerri Santoro, a young mother who died when her boyfriend tried to perform an abortion on her in a motel room. Santoro’s ex-husband was abusive. She fled from him with their children and started a new relationship; however, she never divorced her husband. Soon after learning she was pregnant with her boyfriend’s child, her estranged husband contacted her to let her know he would be visiting to see their children. Santoro was terrified that he would kill her or that he would use her pregnancy with another man to take their children away. She and her boyfriend tried to perform the abortion themselves, borrowing a medical textbook from the local library. When she began hemorrhaging blood, her boyfriend fled the scene. Ms. Magazine hoped that by telling Santoro’s story people would see how illegal abortion impacted individual women’s lives. 

Abortion remained a divisive issue in American society and American politics. In 1976, Congress passed the Hyde Amendment to prevent federal funds from being used to provide abortions. The funds came from Medicaid, a government-sponsored insurance program that helps low-income families. Women who receive Medicaid could not use that insurance to get an abortion. This restriction is still in place today and primarily affects the poor, Black, Latino, and LGBTQ+ communities that predominantly use Medicaid. Women in these communities face significant barriers to getting abortions–and basic healthcare in general– that their wealthier or white sisters do not. Reproductive Freedom is only possible if the financial and social barriers to freedoms are removed.

A key tenant of reproductive justice is the idea of consent, which continued to be a problem through the second half of the 20th century. Family planning initiatives tied to economic policies to end poverty, known as the War on Poverty, funded non-consensual sterilizations of primarily Black and brown women in the 1960s and 1970s. 

Fannie Lou Hamer, for example, was an activist and a critically important participant in the Civil Rights Movement in the 1960s. She was a leading organizer of the Student Non-Violent Coordinating Committee (SNCC) which played an important role in voter registration drives. She was often one of the only women at the protests. 

As a young woman, Hamer had seen a physician in Mississippi for removal of a uterine tumor, a minor procedure. Hamer left the hospital to find that the doctor had sterilized her without her consent. Hamer claimed that six in 10 Black women who went to the hospital were sterilized like this. Some women were sterilized during Cesarean sections and were never told, others were threatened with termination of welfare benefits or denial of medical care if they didn’t “consent” to the procedure, others received unnecessary hysterectomies (the surgical removal of the uterus) at teaching hospitals as practice for medical residents. In the South it was such a widespread practice that it was called: a “Mississippi appendectomy.” 

Madrigal v. Quilligan was a class action lawsuit brought by 10 Latina women in 1978 who represented more than 140 others. They argued that physicians at the Los Angeles County General Hospital coerced them during labor to consent to surgical sterilization. In some instances, the women were told they were consenting to C-sections. Some women agreed to the procedure because they were told they would die if they got pregnant again or that the doctors would not assist with childbirth unless they agreed. Some women were presented with consent forms in English, even if they could not read in either English or Spanish. In the most extreme instances, the women were not told they had this procedure done at all. They only found out later when they tried to conceive again. 

The Madrigal case illustrates a convergence sex, gender, citizenship, language and culture. Even though the plaintiffs presented a compelling case, a judge ruled in favor of the physicians stating “the staff of a busy metropolitan hospital” had no way of knowing about these women’s “atypical cultural traits.”

In the Madrigal case, it was clear race and sexuality were central to making these women subordinated persons. In the context of the era, many white feminists were calling for access to birth control while minority women were calling for personhood, two very different focal points. For the most part, people of color and their parenting abilities were judged against standards based on white, middle-class families. Often, they were found lacking by medical professionals and social workers.

Reproductive freedoms were tentatively held together by Supreme Court interpretations of the 14^th Amendment equal protections clause through the late 20^th century, but attacks on abortion, abortion providers, and social stigma persisted. In his first term in office President Trump worked to shift control of the Supreme Court into the hands of conservative justices. On June 24, 2022, the Supreme Court, stacked with three Trump appointees, issued a historic decision in Dobbs v Jackson [Mississippi] Women’s Health Center, overturning almost 50 years of precedent set by the 1973 decision in Roe v Wade. Roe v Wade had permitted the termination of a pregnancy prior to the viability of a fetus, placing this important medical decision generally in the hands of women and their doctors. In Roe, the Court had presumed a woman’s right to make her own reproductive health decisions with state intervention only in the final stages of a pregnancy, when it was presumed that a fetus could survive outside the womb. This created a standard based on fetal viability. The Dobbs case was brought by the Center for Reproductive Justice challenging a Mississippi 15-week abortion ban that left women with pregnancy complications in danger and with little recourse. The decision in Dobbs left it to the states to determine the availability and regulation of abortion. This left the country with no coherent policy on the matter. Women’s rights groups saw this as a devastating setback in women’s struggle for reproductive autonomy.

Justice Samuel Alito’s opinion represents a profound attack on the rights of women, particularly in its originalist claim that women have no guarantee to rights that were not protected by the Fourteenth Amendment that was ratified in 1868. In Dobbs, Justice Alito adopted the reasoning of his late colleague on the Court, Antonin Scalia, who argued that the Fourteenth Amendment’s equal protection clause contains no explicit protections for women and that the concerns of the authors of the Reconstruction Amendments focused on race, not gender. From the originalist point of view that appears to dominate the current Supreme Court, providing for equal protection for women, pregnant or not, has no constitutional legitimacy. Women, then, are to be considered in light of the law and practice of the late-1860s rather than practices and standards of today.

The fallout from Dobbs meant that state bans on abortion quickly went into effect. In August 2022, just two weeks after the Georgia abortion ban went into effect, a 28-year-old mother, Amber Thurman, died as providers in the emergency room watched, unable to provide the abortion necessary to save her life. The effect of Dobbs was devastating for women’s rights and health. 

An expanding body of evidence has documented the widespread harm Dobbs has inflicted on reproductive healthcare. Studies and reports reveal a dramatic decline in the number of clinics providing abortion care with 66 clinics in 15 states ceasing services within 100 days of the decision and no clinics operating in 14 states, enforcing total abortion bans. Despite these losses, the total number of U.S. abortions has paradoxically risen, fueled by innovative care models such as telehealth services offering medication abortions and a surge in out-of-state travel for care. Virtual clinics now account for nearly 20% of all abortions and many patients in restrictive states rely on shield laws in supportive states to access medication abortion. However, these options have not mitigated the logistical, financial, and emotional burdens placed on individuals, particularly those from marginalized communities.

Further, physicians in states with abortion bans report delays in emergency care, moral distress, and legal uncertainties, with many considering relocating to states where abortion is legal. Medical students in these states face diminished training opportunities, raising concerns about a decline in expertise. Due to highly increased numbers of doctors fleeing states as a result of their abortion bans, many communities have been left in healthcare deserts, sometimes with entire counties left without a physician. This not only leads to a delay in care for all women’s healthcare including regular, yearly gynecological appointments and mammograms, but it also puts a strain on surrounding communities as patients travel to other counties or even other states in order to access care. Beyond healthcare access, Dobbs has exacerbated existing inequities, including higher maternal mortality rates and worsening mental health for vulnerable populations. Emerging research reveals that states enforcing abortion bans also have poorer maternal health outcomes, disproportionately impacting Black and Indigenous communities. Harrowing accounts of patients denied life-saving care in obstetric emergencies further highlight the dangers of restrictive abortion policies. These findings underscore the urgent need for comprehensive solutions to address the devastating consequences of the decision and to reimagine abortion rights and access nationwide. Since 2022, defenders of women’s health have worked tirelessly to expand access to information, resources, and medical abortion by mail. They have also fought back in court. 

The Equal Rights Amendment

The ERA was introduced in every session of Congress but failed to make it out of committee. In the 1940s both the Republican and Democratic party endorsed the ERA in their platforms. Despite the support, the ERA failed to move forward with many women’s organizations in opposition due to the belief that it would invalidate protective labor laws they fought for during the Progressive era for women. 

In the 1970s, the Supreme Court began applying the 14th Amendment's equal protection clause to sex discrimination cases, stating that differential treatment based on gender was prohibited unless serving an "important governmental objective." This reflected major social changes and attitudes of the day. 

Then, ERA supporters convinced Senator Birch Bayh (D, IN) to hold Congressional hearings on the amendment in the Senate and Representative Martha Griffiths filed a motion to discharge the ERA from the House Judiciary Committee. During debate over the amendment, women presented evidence for the necessity of a Constitutional amendment. They claimed sex discrimination was still more the rule than the exception in America. For example, in some states height requirements for police forces were set to exclude women, and in other states public assistance programs provided less food for women. Congress found that college admissions discriminated against women. Finally in 1972, almost 50 years after it was first introduced, Congress passed the Equal Rights Amendment reading “Equality of rights under the law shall not be denied or abridged by the United States or by any state on account of sex.” According to the Constitution, a proposed amendment must be ratified by three-fourth of the states. Congress set a seven-year deadline for ratification of the ERA.

Within the first year, twenty-two states approved the ERA and eight more ratified in 1973. Supporters believed the amendment would quickly become a part of the US Constitution. However, they underestimated the opposition and failed to develop a strategy to successfully combat their arguments. The leader of the opposition was a conservative from Illinois, Phyllis Schlafly. She used her nationwide newsletter to campaign against the ERA and create an opposition organization, STOP ERA, meaning Stop Taking Our Privileges. She and members of the organization traveled to states to testify against the ERA.

Opponents contended the amendment was unnecessary because women’s rights were already protected. They pointed to the equal protection clause of the Fourteenth amendment, the Civil Rights Act of 1964 and the variety of recent legislation as evidence. Opponents argued that women could use the existing laws to challenge discrimination in the courts. 

The opposition focused much of the debate on how the ERA would erode traditional family values and have negative unintended consequences. Schlafly said that trying to achieve women’s goals through the ERA was “like trying to kill a fly with a sledgehammer. You won’t kill the fly, but you surely will break up some of the furniture.” Opponents argued that women had special privileges due to their gender that the ERA would eliminate. They claimed the ERA would require women to contribute equally to the family’s income. Therefore, they claimed the amendment would force women into the workforce. Opponents also contended that ERA would erode states’ rights and destroy the traditional family structure in America. It would take issues related to the sexes and the family out of state control. The amendment would invalidate state laws related to such things as divorce, child custody, alimony and inheritance.

The ERA, opponents maintained, would have broader impacts on society as well. Women would be drafted and sent into combat where they would have to perform tasks they were not able to handle. Opponents argued this would be dangerous for the country. They also claimed the ERA would lead to sexual sameness and lead to unisex restrooms and an end to gender specific organizations like the Boy Scouts. Opponents also asserted the ERA would allow homosexuality in society and legalize same sex marriages since it would not allow any distinctions based on sex.  The amendment, according to opponents, would lead to societal chaos.

Opposition to ERA in front of the White House[4]

Proponents of the ERA found themselves on the defensive and were forced to confront their opponents’ concerns. The opponents successfully shifted much of the debate on the ERA away from the constitutional principles to the claim that the amendment would create radical change to American society. Supporters continued to demonstrate the need for the amendment as well as refute opponents’ claims.

The Fourteenth amendment was not adequate protection for women, supporters declared. They pointed to the many instances of discrimination against women since the Fourteenth amendment’s passage. For example, if the due process and equal protection clauses found in the Fourteenth truly protected women’s rights, then the Nineteenth amendment, guaranteeing women the right to vote, would not have been necessary. Federal legislation, supporters pointed out, were full of loopholes, subject to change, and not comprehensive. Proponents also said that courts routinely did not interpret the Fourteenth amendment in ways that truly protected women. Fighting discrimination on a case-by-case basis was expensive and time consuming. The ERA was needed to enshrine women’s rights fully into the Constitution and end continued discriminatory practices found across the country. Passage of ERA would send a clear message that the nation was committed to its core value, equality for all. 

Constitutional and legal scholars concluded the ERA would not hurt states’ rights and that the amendment did not prevent legislation that makes distinctions between physical characteristics. While supporters conceded the ERA would make women eligible for the draft, they argued this was a positive consequence since it would increase opportunities for women in the armed services. Current restrictions based on sex hurt a woman’s chance of reaching the standing of general and the ERA would open jobs such as pilots, navigators, and flight engineers which were closed to women. Supporters said if women expected the same rights as men, they must be willing to take on the responsibility of defending the country.

March for ERA in Washington DC 1978[5]

Supporters asserted the amendment would not radically change the American family structure. They said the protection of women as wives and mothers depended on mutual affection between men and women and not the law. The ERA, proponents argued, would not force women into the workforce but actually help recognize the contributions made by women in the home. 

By 1977, only thirty-five states had ratified the ERA, leaving it three states short of the necessary three-fourths to become a part of the Constitution. The original congressional deadline was set to expire in March 1979. Arguing that the ERA was still being actively debated in the states, Congress granted a 3-year extension until 1982. If there were vocal opponents to the ERA, especially large groups of women, state legislators felt confident in voting against it. Therefore, despite the extension, the Equal Rights Amendment fell three states short of the thirty-eight states needed to become a part of the US Constitution. 

Opponents of the amendment celebrated while proponents attempted to regroup and devise a new plan of action. NOW promised to work toward defeating anti-ERA legislators across the country. The fight for the ERA had held together the women’s movement for a long time. With its defeat, the women’s liberation movement lost momentum and gradually declined. Groups fragmented while continuing to fight for various women’s issues. 

With the overturning of Roe v. Wade in 2022 in the Dobbs decision, proponents of the ERA who had insisted on the importance of gender protection beyond the 14th Amendment have found some justification. Despite occasional interpretations benefiting women, the 14th Amendment provides no guaranteed assurances. Advocates argue that the Equal Rights Amendment would mandate the highest level of strict judicial review, ensuring consistent and robust legal protection against discrimination. 

Recently there has been a resurgence in women's activism, exemplified by events like the Women's March on Washington, the #MeToo Movement, and the increased representation of women in Congress and state legislatures in 2018. This renewed focus on gender equality has brought the Equal Rights Amendment (ERA) back into the national spotlight, with lawmakers and advocacy groups, such as the ERA Coalition, advocating for its adoption.

Proponents argue that the ERA, if adopted, can contribute to advancing equality in the twenty-first century. The momentum behind the ERA gained public attention in 2017 when Nevada became the first state to ratify it since 1977. This trend continued in 2018 when the Illinois legislature followed suit. The push for the ERA has garnered increased support from the Republican party with each new ratification. Legal and procedural challenges surround the ERA's revival. The key legal questions include whether Congress can act to lift the ERA's deadline and whether states can retract their support. Despite Virginia's recent ratification, the legal and policy debates surrounding the ERA are likely to persist.

Conclusion

Responsibility of citizenship was essential to attain women’s full participation in society. Women fought to serve on juries and in the military so that women could get fair trials, advancement through service, and to push back against protective laws that served to reinforce their oppression. Still legislation like Title IX and the Equal Rights Amendment, alongside case law like Griswold v. Connecticut and Roe v. Wade were essential in addressing persistent issues of social inequality that limited women in both public and private spheres.

[1] Department of Defense, “Somewhere in England, Maj. Charity E. Adams,...and Capt. Abbie N. Campbell,...inspect the first contingent of Negro members of the Women's Army Corps assigned to overseas service,” February 15, 1945, National Archives at College Park, Still Picture Records Section, Special Media Archives Services Division (NWCS-S), Wikimedia Commons, https://commons.wikimedia.org/wiki/File:%22Somewhere_in_England,_Maj._Charity_E._Adams...and_Capt._Abbie_N._Campbell...inspect_the_first_contingent_of_Negro_mem_-_NARA_-_531249.jpg.

[2] Estelle Griswold, 1964, Photograph: Portrait, https://en.wikipedia.org/wiki/File:Estelle_Griswold_portrait.jpg.

[3] 

[4] Demonstrators opposed to the ERA in front of the White House, 1977, Photograph, Public Domain,  https://www.loc.gov/resource/ppmsca.01952/.

[5] March for the Equal Rights Amendment, 1978, Washington, DC , 1978, Photograph, Public Domain,  https://en.wikipedia.org/wiki/File:March_for_the_Equal_Rights_Amendment,_1978,_Washington,_DC.jpeg.