The Government Has a Long History of Controlling Women--One That Never Ended

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The Government Has a Long History of Controlling Women—One That Never Ended
11/9/2021 by Elizabeth Hira

Editors’ note: After S.B. 8 went into effect on September 1, staff from the Brennan Center for Justice came together to show solidarity, express outrage, and articulate a response. That conversation morphed into an electrifying brainstorm with colleagues at Ms., the result of which is captured in an array of essays that provide 11 different answers to an important question: Why is abortion so essential to democracy? By joining our voices, we’re demonstrating the fight for abortion rights, the fight for equality, and the fight for representative democracy are all in service of the same goal: justice for all.




During Brett Kavanaugh’s Supreme Court confirmation hearings, then-Sen. Kamala Harris pointedly asked him, “Can you think of any laws that give the government power to make decisions about the male body?” (Photo by David J. & Janice L. Frent/Corbis via Getty Images)

“Women can ‘control their reproductive lives’ without access to abortion; they can do so by refraining from sexual intercourse.”
This stunning statement was written in a “friend-of-the-court” brief submitted to the Supreme Court in July by Texas Right to Life and signed by Jonathan Mitchell, one of the architects of Texas law S.B.8. And it makes crystal clear that outlawing abortion isn’t the only end game. Control over women is. It is imperative that we pass laws that actively affirm fundamental equality—such that women have control over both our reproduction and our lives—otherwise we remain perpetually vulnerable.

The ability to control one’s body is intrinsic to controlling one’s life. This is true along the entire reproductive continuum, from sex to abortion to delivery. In her 1993 confirmation hearing to join the Supreme Court, Ruth Bader Ginsburg explained to the Senate Judiciary Committee: “The decision whether or not to bear a child is central to a woman’s life, to her well-being and dignity. It is a decision she must make for herself. When Government controls that decision for her, she is being treated as less than a fully adult human responsible for her own choices.” In short, she is being treated differently—and less than—a man.

. . . .



Throughout modern history, government control over women’s bodies—and by extension, women—has been a prevalent theme, built into our very systems. Rape was initially deemed a property crime against the victim’s father. And as property themselves, married women couldn’t own property under the common law principle of coverture; states gradually granted property ownership to married women up to the 1900s. To keep women in their place—and thus, out of power—American laws long forbade women from full societal participation: In 1948, the Supreme Court affirmed women couldn’t be big-city bartenders unless their father or husband owned the establishment; only in 1973 could women serve on a jury in all 50 states; and until 1974, women without their husband’s permission could be refused credit cards.
. . . .

On the basis of gender alone, women have too few legal protections for their fundamental equality. The Equal Rights Amendment still has not crossed the finish line. Women are not included in certain provisions of the landmark Civil Rights Act of 1964. Even laws like the Equal Pay Act, requiring equal pay for equal work, are undermined by massive loopholes. A particularly stunning example of women’s lack of legal protection is how courts have interpreted Title VII of the Civil Rights Act, which forbade sex discrimination in employment. This law is one of the most powerful equality tools, but as Rachel Osterman wrote in the Yale Journal of Law and Feminism, even a decade after its passage, courts inaccurately dismissed the inclusion of women as a joke; a federal court ruling frankly stated, “Congress in all probability did not intend for its proscription of sexual discrimination to have significant and sweeping implications.”

. . . . .
For too long across time and place, simply trying to be equal, as a woman, has required an act of resistance. The American legal system should not advance that injustice.

https://msmagazine.com/2021/11/09/us-history-controlling-women-texas-abortion-supreme-court/