Posted on May 29, 2007 in Uncategorized
The Women’s Rights Essay I Spent Nine Mostly Painful Hours Forcing Out
Women: Some just say “Sure, they’re those things with vaginas in ’em.” others understand the feminine identity as an endless majesty of intellect, strength, and fashion sense. All throughout history, differences between males and females have shaped the way society looks at the shapelier sex, and the unfortunately common patriarchal societies have pushed the female potential-sometimes all too literally-to the back burner. However, with the 19th and 20th centuries came the blossoming of social, technological, and medical advances. These changes became the mother’s milk of progress, and birthed the modern Women’s Rights Movement. In this essay we will expose ourselves to the legal background of one of the most titillating issues surrounding women’s movement in America: Reproductive Rights.
The post World War 2 era was a turbulent time for America. Increasingly tenacious currents of a liberalizing society began to stand up to the status quo’s sentimentalized notions of the way things used to be and challenged their legal manifestations.
Throughout the country, seldom enforced, socially restrictive laws, known as Blue Laws, became the main attraction for progressive ire, and, in the mid-twentieth century, no state’s laws were quite as Blue as Connecticut’s. Indeed, it was from the “Nutmeg State” that one of the most famous showdowns in the history of Reproductive Rights emanated, in Griswold v. Connecticut.
In 1879, Connecticut passed a statute demanding that doctors not provide “any drug, medicinal article or instrument for the purpose of preventing conception.” In the almost 100 years following law’s passage, it was almost never enforced. However symbolic it may have been, several failed legal attempts were launched aimed at overturning the law culminating with a case known as Poe v. Ullman.
Oddly enough, the insurmountable hurdle for these attempts, and particularly for Poe v. Ullman, was that, because Connecticut filed no charges against the plaintiffs in these cases, the Supreme Court felt that issue was not “ripe” for judicial review. In other words, one needed to break the law and be recognized with legal sanction before the Supreme Court would take the case.
The Court’s dismissal of Poe v. Ullman provoked Executive Director of the Planned Parenthood League of Connecticut, Estelle Griswold and professor of Medicine at Yale, Dr. C. Lee Buxton to test the law, by opening a birth control clinic in New Haven, Connecticut. Such flagrant violation of the law succeeded in landing both founders in the kind of legal controversy that lacked in Poe v Ullman, and when their $100 fines were upheld by both the Appellate Division of the District Court and the Connecticut Supreme Court of Errors, the case made its way onto the docket of the Supreme Court.
The case was argued before the Warren Court on the dates of March 29 and 30, 1965 and was decided June 7 of the same year. The decision was 7-2 in favor of invalidating the Connecticut law.
Justice William Douglas, writing for the majority, contended that the Connecticut law stood in opposition to the right of privacy, which, though not specifically enumerated in the constitution, existed in what he called “penumbras” of other constitutional provisions. In his argument, he cited as precedent for unenumerated rights, the courts protection, in NAACP v. Alabama, of freedom of association “and privacy in one’s associations” as a peripheral virtue of the First Amendment.
Justice Douglas maintained that, in addition to the First Amendment, penumbras regarding privacy existed in the Third Amendment’s protection against the quartering of soldiers, the Fourth Amendment’s provision for “the right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures,” the Fifth Amendment’s assurance that one need not incriminate one’s self, and the Ninth Amendment’s assurance that “the enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.”
Several other justices joined Justice Douglas with concurring opinions. The most notable of these was written by Justice Goldberg, who held that the “language and history of the Ninth Amendment reveal that the Framers of the Constitution believed that there are additional fundamental rights, protected from governmental infringement, which exist alongside those fundamental rights specifically mentioned in the first eight constitutional amendments.” To support his assertion, Justice Goldberg cited both a wide array of legal precedent, and a very relevant statement by James Madison that went, “It has been objected also against a bill of rights, that, by enumerating particular exceptions to the grant of power, it would disparage those rights which were not placed in that enumeration; and it might follow by implication, that those rights which were not singled out, were intended to be assigned into the hands of the General Government, and were consequently insecure.”
If Connecticut v. Griswold was the child of the Reproductive Rights Movement, surely Roe v. Wade was the afterbirth. Eight years after the decision in which Estelle Griswold and Dr. C Lee Buxton were absolved of their $100 fine, Norma L. McCorvey, better known as “Jane Roe,” won a case against Dallas County District Attorney Henry Wade, and, in doing so, increased the legal support for reproductive rights an entire proverbial bra size.
Roe v. Wade, while far and away the most recognized Supreme Court case in history, was more or less a reiteration of Griswold v. Connecticut. The District Court (which actually ruled in favor of Roe, but declined to grant the injunction against the Texas criminal abortion laws that Roe sought) cited Justice Goldberg’s concurring opinion in holding that the Ninth Amendment, through the Fourteenth, provides a fundamental right for women to decide whether to have a child. Justice Blackmun, writing for the majority of the Supreme Court, contended, much as Justice Douglas had when ruling against the Connecticut law, that Roe’s right to privacy existed in the “Fourteenth Amendments concept of personal liberty and restrictions upon state action”
Even so, Justice Blackmun’s opinion in Roe v Wade is distinctly illuminating. He writes, almost as a side note, that legal restrictions on reproductive rights are a fairly recent development. With few exceptions, the regulations on abortion and contraception that pervaded the United States in the latter half of the 19th century had no foundation in either the ancient or common law on which the American legal system is based.
This is significant because it emphasizes the culturally entrenched expectation of reproductive choice as a “fundamental right”. That argument, though only parenthetically recognized, is, in fact, the underlying principle for the decisions in both cases: It is a culture’s expectation of rights that secures its liberty, and it was when the champions of the Reproductive Rights Movement demanded that their rights be respected, that they got their liberty.
The success of the Reproductive Rights Movement paralleled the successes of the larger
Women’s Rights Movement. 1950’s America returned home late in the twentieth century startled to find dinner absent from the table—startled to find that women wandered off the well beaten path between the kitchen and the bedroom to find lives outside of making pies and babies. In the wake of America’s dismay, the movement succeeded in turning a once a month complaint into a permanent menstrolution.
