One of many persons who commented was named “Connie” on the seminal piece in the February 21, 2016 NY Times Magazine article entitled “Do Women Need Legislative ‘Protection’” by Emily Bazelon. Connie emailed “We save the whales, seals, bees, butterflies, birds and just about any threatened or endangered plant and animal species compassionately” but she didn’t say women don’t need to be a protected species by withholding vital health services ala the Catholic Church’s antediluvian views on women’s reproductive rights.
Of course it took clever thinking to come up with this “protection” angle—but after all Pope Francis is the first Jesuit pope and that branch is well known for its ability to try to make an illogical silk purse out of a sow’s ear.
However, Bazelon, whose arrival at the Times Magazine a year or so ago, has allowed her to write other ground breaking pieces. Here she sets up her main thesis with first offering a recitation of compelling history about how protecting women was but a ruse for denying them their civil rights.
You can read the entire article here.
But these paragraphs make clear the thrust of the RCC’s current strategy.
In September 1905, a laundress named Emma Gotcher reported Curt Muller, the owner of Portland Grand Laundry, for making her work more than 10 hours — the state’s legal limit for women — on, of all days, Labor Day. Gotcher was a labor activist, married to a leader of the Shirtwaist and Laundry Workers’ Union. The court found Muller guilty of violating Oregon law and fined him $10. He refused to pay, and on appeal to the Supreme Court, his lawyer drew national attention by making a feminist argument: Limits on women’s work hours actually discriminate against them. Two years earlier, in the well-known case Lochner v. New York, the Supreme Court struck down a state law that restricted bakers, most of them men, to the same 10-hour day. The bakers were “in no sense wards of the state,” the court said. Why, Muller’s lawyer asked, should women be treated differently?
The justices found a reason. A woman, like a child, “has been looked upon in the courts as needing especial care,” the Supreme Court pronounced in 1908, unanimously upholding Oregon’s 10-hour restriction in Muller v. Oregon. “She is properly placed in a class by herself, and legislation designed for her protection may be sustained.”
After the court’s decision, states all over the country passed employment rules that professed to protect women by setting special health and safety requirements or barring them from working at night or taking jobs like bartending. “The court said that whereas male workers should have the freedom to contract for themselves, women could be denied that freedom,” says Alice Kessler-Harris, a historian at Columbia University who writes about labor and gender. “They justified the lack of freedom as ‘protection.’ That language comes up again and again. It’s really a euphemism for the public welfare: Women’s purpose is to become healthy mothers who produce healthy children. Their bodies should not be weakened, and the values of the home shouldn’t be undermined by the coarse workplace.”
Feminists objected. If night work was “against nature,” the lawyer Blanche Crozier said dryly in 1933, then starvation was even more so. In 2008, on the 100th anniversary of Muller v. Oregon, Justice Ruth Bader Ginsburg said in a speech, “Having grown up in years when women, by law or custom, were protected from a range of occupations, including lawyering, and from serving on juries, I am instinctively suspicious of women-only protective legislation.”
By then, thanks in no small part to Ginsburg’s efforts, the Supreme Court had helped to undo Muller, recognizing that equality for women meant giving them the same right that men had to fend for themselves. In 1973, the court ruled 8 to 1 in favor of a female Air Force officer who challenged a law that gave her husband less access to benefits than the wives of male service members. In his opinion, Justice William Brennan disavowed the court’s previous “‘romantic paternalism’ which, in practical effect, put women not on a pedestal, but in a cage.”
Her main arguments are most persuasive. Here is a sampling.
In light of this history, it’s telling that today’s abortion opponents have dusted off the word “protection” to justify regulations that are shutting down clinics across the country. The anti-abortion group Americans United for Life, which drafts model legislation for states, has what it calls a Women’s Protection Project, with out-of-the-box bills called the Women’s Health Protection Act and the Women’s Health Defense Act. After decades of battling for the life of the unborn child, abortion opponents have started arguing that for the sake of women seeking abortions — to protect their health and safety — the state must impose strict new regulations on clinics. In 2013, the Texas Legislature passed a bevy of new rules (the epilogue to State Senator Wendy Davis’s filibuster in her pink tennis shoes). The new law requires clinics to employ a doctor who has privileges to admit patients at a nearby hospital and to meet the construction and equipment standards for an “ambulatory surgical center,” which include temperature controls, hallways wide enough for a gurney and special ventilation units. The estimated cost of renovating an existing clinic is $1.5 million to $3 million.
On March 2, the Supreme Court will hear a challenge to the Texas law. Whole Woman’s Health, which operates four clinics in the state, has brought the suit, arguing that Texas’ stated goal of protecting women is a cover for closing clinics and that the law has no real medical purpose. Instead, it imposes an “undue burden” — the Supreme Court’s constitutional test — on women’s right to reproductive care. If the Texas restrictions are allowed to go fully into effect, the number of abortion clinics in the state is projected to drop to eight or nine, from 44 three years ago, across nearly 270,000 square miles. More than 20 states have enacted laws with some or all of the Texas restrictions.
In July 2014, I visited a clinic in Austin run by Whole Woman’s Health, where women recovering from abortions rested in reclining chairs, drinking tea with fleece blankets over their laps. Such comforts have been offered by abortion clinics since they were founded (mainly by feminists) in the 1970s. Tea and blankets aren’t allowed, however, in the sterilized environment of a surgical center. The Austin clinic closed a couple of weeks after my visit, anticipating the high cost of complying with the new regulations.
Whole Woman’s Health v. Hellerstedt is the biggest abortion case the Supreme Court has heard in a quarter-century. At the trial in Austin, four anti-abortion doctors testified on the side of Texas, portraying women as vulnerable to a lurking threat. Calling the state’s law “protective of patients,” James Anderson, the head of Virginia Physicians for Life, said it was necessary to address “cracks in the health system,” claiming that the complication rate for abortion is “underreported.” After a similar trial in Alabama, the judge discredited Anderson’s testimony, expressing “concerns about his judgment or honesty” because he submitted a report, without verifying its content, written by Vincent Rue, who has a Ph.D. in home economics and whose testimony was thrown out in two past abortion cases for lack of scientific rigor.
The language of fear has been even plainer in the recent push by conservative Republicans to deny Planned Parenthood government funding. “Planned Parenthood is not a safe place for vulnerable women,” the president of the conservative group Concerned Women for America said on Fox News last summer, claiming that the group “coerces women into abortion” and “sells their baby parts.”
These claims are not backed by evidence. But still the alarms ring, playing into our usual assumptions that the impulse to protect is benevolent and, perhaps, that women are especially deserving of solicitude. The association between “protection” and women is deeply embedded in culture. The image of the domestic-violence victim who receives a protective order is female, though men have the same right to go to court. Shakespeare described God’s protection of the king, but over the centuries, writers from E. M. Forster to Norman Mailer to Jonathan Franzen have rhapsodized about the male impulse to shelter women. Once in a while, a female character voices vexation. “I won’t be protected,” Lucy protests to her irritating suitor in Forster’s “A Room With a View.” “I will choose for myself what is ladylike and right. To shield me is an insult.”
There’s no phrase for men equivalent to “damsel in distress” and no such thing as “protective” legislation for men. “No one says anything about sending men to surgical centers for colonoscopies,” says Kessler-Harris, who submitted a brief in the Texas case, along with 15 other historians. (Colonoscopies have a mortality rate more than 30 times as high as the rate for abortion.) “Abortion is one of the safest medical procedures performed in the United States,” states another brief by the American College of Obstetricians and Gynecologists and the American Medical Association. The major medical groups were exceptionally blunt in disputing the protective rationale for the Texas law, saying there is “no medical purpose” for requiring abortion clinics to meet the standards for a surgical center. The admitting-privileges requirement for doctors “likewise does nothing to improve the health and safety of women.”
When fact and need and demand are clear, the outcome is foreordained but slow in coming to be sure. The continuing Republican attacks on Planned Parenthood in which they attempt to vilify one of the premier providers of needed health services for women seems to make their electability highly problematical, but so far the jury is out. Thanks to fact finders of premier writing ability such as Bazelon the day may be coming sooner than these right wing zealots think.
Sadly, the Texas case mentioned about may well be decided by a tie vote in the Supreme Court, since Scalia’s death and the failure to confirm a ninth justice would make the lower court’s decision stand and perhaps set a precedent to the other states seeking to enact similar restrictions on abortion clinics.
When can we grow up as a nation and stop allowing church fanatics to attack women’s rights?
From the Dissident Left: A Collection of Essays 2004-2013
By Donald A. Collins
Publisher: Church and State Press (July 30, 2014)
“Whose Choice?” A Pro-Abortion Film
“Trapped”: New Film Follows the Providers Who Are Fighting to Keep Abortion Accessible in the South
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