Part 2: The Supreme Court, Now Endorsing Paternalism (cont’d)
by Gretchen Borchelt

In addition to the two new interests I blogged about yesterday, there is another one that deserves particular attention and discussion.  It contains ideas about women that are so retrogressive and patronizing that they are almost unbelievable for 2007. Yet they are now part of Supreme Court doctrine.

The majority of the Court in Gonzales v. Carhart recognized a new principle of protecting “the bond of love the mother has for her child.”  The Court said protecting that “bond” could justify prohibiting a medically-approved abortion procedure.  As we explained in a past blog, the Court said banning what could be the safest procedure for a particular woman was for the woman’s own good.  In her dissent, Justice Ginsburg recognized this new interest for what it is—paternalism.  The idea that  the Court and government know what is best for women and their families takes us back to cases decided by the Court over a century ago.  For example:

  • In 1873 the Court decided that it was acceptable for a state to deny women a license to practice law. One Justice said that women’s nature made them unfit for the profession and that the “paramount destiny and mission of woman are to fulfil the noble and benign offices of wife and mother.”
  • The Court in 1908 approved state legislation limiting the number of hours certain women could work based on reasoning that women need protection. The Court said, “[Woman] is so constituted that she will rest upon and look to [man] for protection; that her physical structure and a proper discharge of her maternal functions–having in view not merely her own health, but the well-being of the race–justify legislation to protect her. . . .”
  • In 1948, the Court upheld a prohibition against women working as bartenders unless they were the wives or daughters of male bar owners because the state believed it would “minimize hazards.”
  • The Court in 1961 upheld a law automatically exempting women from jury service because women are “the center of home and family life.”

But the Court rejected this paternalism starting in the 1970s.  In a series of cases, the Court struck down laws and official policies that disadvantage women simply because they are women, including laws allowing men greater entitlements to government benefits than women; providing for a higher age of majority for males than females so that males were entitled to parental support for a longer period of time; and giving husbands exclusive authority over the community property of a married couple.  More recently, the Court in 1994 invalidated the practice of using peremptory challenges to keep women off of juries solely because of their sex and in 1996 held that the exclusion of women from the all-male, state-run Virginia Military Institute was unconstitutional.

And yet, one month ago, a full three decades after the Court made it clear that the government cannot rely on generalizations about women to continue their legal, social and economic inferiority, the Court showed its new (old) attitude toward women. 

Gonzales v. Carhart is a sign that the Court is returning to the way the law treated women in an earlier era, when they were not considered equal and the Court felt obliged to act as woman’s “protector.”  While Gonzales v. Carhart is about abortion, the kind of thinking it espouses can reach all aspects of women’s lives.

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