Wednesday, August 17

Perspective | Abortion and birth control restrictions curtail women’s citizenship


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The Supreme Court’s decision in Dobbs v. Jackson Women’s Health Organization overturning Roe v. Wade, the case that established women’s constitutional right to abortion in 1973, jeopardizes not only women’s access to safe and legal abortions, but also the availability of contraceptives.

Previous Supreme Court cases establishing the right to both abortion and contraceptives hinge on the right to privacy. In addition to relying on the Due Process Clause of the 14th Amendment, Roe v. Wade also built upon the precedent established in 1965, when the Supreme Court’s decision in Griswold v. Connecticut declared contraceptive use by married couples to be a constitutionally protected right guaranteed by the right to privacy. In 1972, the Court extended this protection to unmarried couples in Eisenstadt v. Baird. Therefore, a threat to one reproductive right is a threat to all. Justice Clarence Thomas made this clear in his concurring opinion in Dobbs, which called for revisiting Griswold.

But that’s not all. As feminists have long understood, legal personhood depends upon voluntary parenthood. And voluntary parenthood requires safe and effective birth control, including both contraception and abortion. A century ago, women activists worked diligently to make clear what they knew to be true: limitations on birth control endanger not just women’s bodily autonomy, but their full citizenship.

Social work educator and social justice activist Sophonisba Breckinridge emerged as a vocal leader in shaping public understanding about why reproductive rights were central to women’s citizenship. Breckinridge, the first woman to earn her law degree from the University of Chicago, wrote an article for the Woman’s Journal in 1929 about women’s evolving legal rights, provocatively entitled, “How Women Came to be ‘Persons.’ ”

In this piece, Breckinridge reviewed the principle of the “feme covert,” or “covered woman,” enshrined in English Common Law. The legal doctrine of “coverture” stated that women’s legal identities were suspended, or “covered,” during marriage. Because the new United States followed common law precedent, well into the 19th century, married women could not own property, retain their wages or claim custody of their own children.

Statutory laws gradually eroded the common law tradition and granted women legal independence in some areas. Many states granted married women some property rights before the Civil War. New York, home to suffrage pioneers Elizabeth Cady Stanton and Susan B. Anthony and the site of the first official women’s rights convention in the United States held in 1848, went the farthest in granting married women control over both the property they inherited and the wages they earned.

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Yet, even after the 19th Amendment granted (some) women voting rights in 1920, the concept of the covered woman continued to govern women’s legal status. At the federal level, Breckinridge noted that only with the adoption of the Cable Act of 1922 had married women gained independent citizenship, rather than having their citizenship determined by the status of their husbands. (Previously, female citizens who married men ineligible for citizenship were subject to marital expatriation. In a famous example, Cady Stanton’s daughter, second-generation suffragist Harriot Stanton Blatch, lost her citizenship as a consequence of marrying a citizen of the United Kingdom.)

Another issue was birth control. Both federal and state laws severely limited women’s access to information about birth control as well as to contraceptive devices, such as diaphragms. The draconian Comstock Laws, adopted in 1873 and named for their zealous enforcer, Anthony Comstock, literally made public discussion of birth control a federal crime. Many states adopted “Little Comstock Laws,” anti-obscenity laws that authorized criminal prosecution for discussing or providing either contraception or abortion. Breckinridge insisted that legal restrictions on birth control infringed on women’s status as “persons” in the eyes of the law.

Breckinridge shared these beliefs with prominent birth control advocates Mary Ware Dennett and Margaret Sanger. Years before, Sanger had proclaimed in her anarchist newsletter that “enforced motherhood is the most complete denial of a woman’s right to life and liberty.” Sanger’s short-lived publication subjected her to criminal prosecution under the Comstock Laws, as did her operation of a birth control clinic in Brooklyn in defiance of the state’s anti-obscenity laws. New York’s appellate court’s 1918 ruling against her in People v. Sanger demonstrated that states denied women the right to control their own bodies even when they allowed physicians to prescribe contraceptives to patients.

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Whereas Sanger discussed and prescribed contraceptives in defiance of the law, Breckinridge used her status as a legal expert to promote the legalization of birth control. As she explained to Dennett: “I have been attempting to place the birth control movement and the sex education movement in relation to the legal status of women in a slightly different way from which it has been urged before.” Breckinridge framed birth control as a fundamental right. By presenting this argument in the pages of the Woman’s Journal, published by the respected League of Women Voters, she hoped to spread the gospel of reproductive rights beyond a relatively small group of birth control advocates to a wider cross-section of Americans.

Dennett helped bring this goal to fruition in the 1930 Second Circuit case, United States v. Dennett. Dennett challenged the Comstock Laws by printing and circulating a birth control pamphlet, “The Sex Side of Life.” When the former secretary of the National Civil Liberties Bureau faced criminal prosecution, the bureau’s successor organization, the American Civil Liberties Union (ACLU), came to her defense. In this case, as in future cases, the ACLU became a powerful advocate for reproductive rights by casting sexual expression as a civil liberty.

These women recognized that — then as now — prohibitions on birth control had a disparate impact on less privileged Americans. In 1922, Dennett, then director of the Voluntary Parenthood League, used the pages of the Birth Control Herald to urge another mainstream women’s organization, the General Federation of Women’s Clubs, to support birth control. Both state and federal laws “forbid this knowledge for the poor, but the well-to-do women get it and utilize it,” she asserted.

Dennett backed up her statement by referring to penal reformer and sex researcher Katharine Bement Davis’s recent study of birth control among affluent, White, married women, which showed that nearly three-fourths of her respondents practiced contraception. Since club members “are mostly of the well-to-do class that has already accomplished the control of parenthood,” Dennett declared, “it seems as if common humanity would impel them to help make the knowledge available for the millions of poor mothers who are still ignorant.”

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Breckinridge, who shared Dennett’s concern for working-class women, advocated birth control throughout the Great Depression, paying particular attention to the plight of poverty-stricken parents. The Kentucky native planted editorials in the Lexington Herald — previously edited by her father, William C.P. Breckinridge, and her brother, Desha Breckinridge — by convincing managing editor Thomas Underwood to publish her ghostwritten pieces on a variety of social issues, including reproductive rights.

She pushed readers to understand that the “right to parenthood” was a fundamental right. However, she explained that unfortunately not all parenthood was freely chosen. Instead, responsible adults were — because of the Comstock Laws — denied access to information about contraceptives. The human cost of these legal restrictions on birth control, Breckinridge opined, was tremendous, measured both in the number of dangerous illegal abortions and in the number of poverty-stricken children. Breckinridge thus advocated an immediate repeal of anti-birth control laws to “make possible a truly voluntary parenthood.”

By the time Breckinridge penned this editorial, some birth control advocates — most notably Sanger — had adopted eugenics, replacing rights-based arguments with race-based justifications. Sanger and others cast birth control as a way to promote “better breeding” and produce “better babies” — increasingly defined as White, Anglo-Saxon, Protestant and able-bodied.

But in the 1960s and 1970s, a new generation of feminists, aided by the ACLU, revived the notion of reproductive rights and used it to promote women’s sexual self-determination, resulting in important advances culminating in the landmark Roe v. Wade decision. By the time more than 1 million Americans participated in the 2004 March for Women’s Lives, women of color were at the forefront of advocacy for what Black activist Loretta Ross called “reproductive justice.”

Today, as reactionary politicians strive to limit women’s ability to use contraceptives or procure abortions, Breckinridge’s insights about the vital connections between reproductive rights and women’s citizenship remain painfully relevant. Feminist activists and their free-speech allies may look to the past for effective tools to combat contemporary challenges to reproductive justice and to reassert birth control as a civil right.

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