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

Texas’s S.B. 8—and the public statements made by its architects—show just how much worse it could get.

November 9, 2021
View the entire Abortion Rights Are Essential to Democracy series

“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. 

Twenty-five years later, then-Senator Kamala Harris made the point more plain during Brett Kavanaugh’s confirm­a­tion hear­ing, asking, “Can you think of any laws that give the govern­ment power to make decisions about the male body?” Judge Kavanaugh replied, ”I’m not aware—I’m not—­think­ing of any right now, Senator." Soon, now-Justice Kavanaugh will be among those who decide the fate of the consti­tu­tion­al­ity of abor­tion—even as the public awaits his final answer to whether similar laws controlling men’s bodies would be legal or appro­pri­ate. 

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 through 1943. 

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. 

Of course, we’ve since achieved advances—le­gis­lat­ive, juris­pru­den­tial, soci­etal—that make these examples seem archaic. Yet the work to secure true equal­ity under the law has never been completed. And we must avoid the tempta­tion to be lulled into the mistaken belief that it has. 

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.” 

Despite the vision­ary work of our fore­moth­ers, today’s persist­ent gender equal­ity gap persist­s—one of the legacies of such damaging legal inter­pret­a­tions. Yes, we may have it better than our moth­ers, but the current state of the law is not enough. And Texas law S.B. 8—and the public state­ments made by its archi­tect­s—show just how much worse it could get. 

And that is because abor­tion is not (just) a health issue. Whether we are will­ing to let women and people capable of becom­ing preg­nant control their own bodies, for health or any other reason, is an equity issue—a ques­tion of who deserves bodily autonomy and free­dom to reach their full poten­tial. (Import­antly, this is not solely a “women’s” issue. Although the Texas law is conveni­ently silent on men’s liab­il­ity, women don’t tend to conceive by them­selves. But it is only their liberty that is curtailed.)  

Ulti­mately, abor­tion bans and restric­tions are part of broader legal and soci­etal struc­tures that were unam­bigu­ously designed to not recog­nize women’s inher­ent equal­ity. And, through the law, inten­ded to ensure we did not have the same fair shot as our male coun­ter­parts. Our work to counter this next wave of abor­tion laws is also our next best oppor­tun­ity to call out these systemic flaws and then to profoundly trans­form them. 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.