On the Devaluation of Rights

...There are echoes of this today when a woman politician reminds voters that a woman in office will be more compassionate, better at delivering social services and cleaning up the environment (women are, after all, natural housekeepers), more cooperative, and less confrontational than men...

...The Court can't see discrimination in laws making only men liable for statutory rape or limiting fathers' rights because it can't see the difference in these cases between biology and culture...

...Protectionism has always been essentially pronatalist and antichoice...

...The charge of selfishness resonates, and women run from it and from the goal of equal rights...

...Not only women can care for children...

...It also suggests that compassion, empathy, and cooperativeness should not be considered unique to women...

...q 394 • DISSENT...

...When is the fact that only women get pregnant relevant in the workplace...

...SUMMER • 1991 • 393 Women and Rights Feminists who persist in celebrating femininity, demanding protections for women instead of rights, may sabotage the prochoice movement...

...In the 1960s and 1970s feminists generally blamed politics or culture and gender stereotypes for institutionalized gender inequities, and this emphasis strengthened the drive for equality...

...It reflects an ideology of gender difference that has shaped labor laws, family laws, criminal laws, and laws limiting First Amendment rights and reproductive behavior that keep women in place...

...Until some twenty-five years ago, laws continued to oppress women by making presumptions about them based on a maternal ideal, instead of treating them as individuals...

...Of course, defining that difference and its relevance to law has always been the challenge for feminists...

...Protectionism is a seamless web for women, and that's what makes it so dangerous...

...The Court often has trouble locating discrimination in laws allocating different rights or liabilities to men and women in cases involving sex and children...

...And it has refused to grant women the same equality rights it grants racial minorities...

...Mainstream contemporary feminism began with radical visions of gender-neutral laws, stressing what men and women shared— the capacity to reason and the right to determine their own destinies— instead of how they differed biologically...

...Sometimes protectionism confers privileges on women...

...The Court was concerned, of course, with the white race...

...either people are collectively unwilling or collectively unable to change...

...Displaced homemakers might blame the dual labor market for their plight...

...Parental instead of maternal leave policies allow men to participate more fully in family life and women to pursue careers, without denying couples the opportunity to play traditional roles if they choose...

...Women who believe that they are naturally better parents than men have a hard time conceding that some women prefer not to be parents at all...

...The slow pace of change convinced some feminists that biology might be destiny after all...

...Perhaps this proves that rights will not lead us to justice...

...But not all women get pregnant...

...This feminist rejection of rights is partly cowardice...

...Or they might point out that human qualities can hardly be, ought not to be, confined to women's sphere...

...Muller was decided during the eugenics movement...

...Chief among Brennan's sins, according to LaHaye, were support for legalized abortion, the First Amendment, and sexual equality...

...Equal employment rights are irrelevant to illiterate teenagers who have not enjoyed access to decent public schools...

...There are echoes of it too in the communitarian critique of feminism, the association of feminism with narcissism and a "selfish" emphasis on the individual over the family...

...Presumably some men, like the ones who helped write Habits of the Heart, have human qualities too...

...Abortion, a powerful act of self-assertion, has become our most powerful symbol of feminist selfishness, which protectionist feminists may find difficult to defend...

...And although strategies for achieving equality may involve convoluted compromises—affirmative action or special workplace benefits that provide short-term relief to women until comparable benefits may be extended to men—the ideological question facing women is simple: is biology destiny, are women defined by motherhood, or not...

...Assumptions of difference justified—even glorified—double standards of sexual behavior, traditional divisions of labor within the home and workplace, and the male monopoly on wealth and political power...

...The Court held that because women get pregnant they were said to be weaker than men and less able to endure long work days...

...f indeed the natural order is inequality, then feminist hubris may be faulted for disrupting it and placing women at risk...

...The prochoice movement begins with an egalitarian image of women as thoughtful, self-reliant individuals and a belief in the primacy of individual rights over familial and community relations...

...Despite dramatic gains in infiltrating male strongholds— law, medicine, business, even police work—women were still plagued by occupational segregation, the wage gap, poverty, sexual violence, and the struggle to combine wage earning and child care...

...It has, for example, upheld statutory rape laws applying only to men and limited the parental rights of unwed fathers, assuming that their reproductive roles make women sexually submissive and superior parents...

...Among scholars that debate is a sophisticated cottage industry...

...But, the new protectionist feminism also reflects justifiable if confused concern about women's welfare and the failure of legal rights to ensure social justice...

...The frequently overlooked connection between protective laws for women and abortion prohibitions dates back to the Supreme Court decision in Muller v. Oregon, the landmark 1911 case that upheld special labor laws for women...

...Having lost the Equal Rights Amendment and whatever public support they gained in the 1970s, feminists seem afraid to challenge mainstream ideals of femininity and family life...

...Instead of rights, the new feminist champions of femininity assert, women need and seek connectedness: women need laws affirming the primacy of their maternal roles, their natural sexual vulnerability, and the special value of their different voice...

...Women who take primary responsibility for child care probably should enjoy a presumptive advantage in custody disputes but so should the minority of men who stay home...

...protective labor laws were not only good for women, they were good for the future of "the race...

...among feminists, his tenacious respect for individual rights is falling out of favor...

...in fact, without a sense of community among women, there would be no such thing as feminism...

...But it too was torn by debates about rights, protections, and femininity...

...Retreating from equality and questioning the idea of rights, feminists in the 1980s began demanding special protections for women— special preferences for mothers in childcustody disputes, a return to traditional alimony laws, special benefits for wage-earning mothers, and the censorship of pornography...

...The popularity of new fetal rights theories and the persistent appeal of abortion prohibitions demonstrate pervasive, emotional opposition to the granting of women's rights and the dismantling of gender roles, as well as the pitfalls of protectionism...

...Feminists might also ask why the civil rights movement is praised by communitarians as a paradigm of community when, like egalitarian feminism, it was a movement to acquire individual rights...

...Nor should sex matter in a child custody dispute or to the extension of child-care benefits...

...As the gap between legal equality and social inequality increases, women looking around for something to blame find feminism...

...The preferred feminist argument for abortion rights is based on the Fourteenth Amendment guarantee of equal protection...

...This suggests that the state not only has the option but the obligation to regulate women's behavior during or even before pregnancy, in the interests of future generations...

...The labor laws did make life easier for some women, at the expense of maintaining a dual labor market and reinforcing traditional familial roles...

...It has refused to recognize that abortion rights are essential to achieving sexual equality...

...For protectionist feminists and antifeminists alike, the ideal woman—nurturing, attuned to the emotional needs of others—is shaped by a commitment to children and family life, which transcends what's dismissed as men's cold concern for rights...

...Periodically a feminist scholar devises a new theory promising to take us beyond sameness or beyond difference and beyond rights to some new, unspecified way of distributing power...

...Justice William Brennan's retirement from the Supreme Court was "exciting news" for Beverly LaHaye, president of Concerned Women for America, an organization boasting a God-given mandate to protect American families from feminists and other "liberal humanists...

...Only women get pregnant (and almost only women get raped), opponents of equality intone...

...they reflect cultural conditioning too...

...What matters is the division of labor within the home...

...Social inequities are not just arguments for social services but for the underlying recognition of economic needs as rights, a point made and lost by the welfare rights movement some twenty years ago before a Supreme Court that was considerably more liberal than today's...

...The authors of Habits of the Heart worry about this, warning that sexual equality "could lead to a complete loss of the human qualities long associated with `women's sphere.' " Which human qualities, feminists might ask: the qualities of self-sacrifice and self-abnegation...

...It shouldn't matter for purposes of a disability plan whether a worker is disabled by pregnancy or a bad back...

...But progress toward equality has been slow...

...Protectionists, like opponents of abortion rights, begin with an image of the family that preempts women's rights and what Elizabeth Cady Stanton called their "selfsovereignty...

...Turn-of-the-century labor laws limiting women's hours of work or denying them manual labor jobs reflected a belief in white women's natural physical weakness and their responsibility to bear and care for children...

...Protective laws regulating speech and sexual behavior, championed by nineteenth-century social purists and antipornography activists today, inevitably restrict access to sex education and birth control...

...The Court went on to provide a basis for what are now known as fetal endangerment cases (prosecutions of pregnant women for endangering the fetus): the production of healthy children depends on the existence of healthy mothers...

...In Muller the Court upheld an Oregon law 392 • DISSENT Women and Rights limiting women's hours of work, despite the fact that only three years earlier it had struck down a New York law limiting men's hours of work on the grounds that it interfered with men's freedom of contract...

...Prochoice advocates demand reproductive rights, not protections...

...Protective family laws, making only men liable for alimony or giving women preferences in custody disputes, helped preserve the patriarchal family...

...Those who speak of feminist selfishness in demanding equal rights and the feminist attack on values have only certain values in mind: the values associated with one-income nuclear families or, at least, a dual labor market and mommy-track jobs...

...The Court has failed to fashion a gender-neutral approach to equality that accommodates pregnancy (in the 1970s it upheld the SUMMER • 1991 • 391 Women and Rights exclusion of pregnancy-related disabilities from employee disability plans, thereby allowing less than equal treatment of women workers...

...Reasonable people will disagree on the extent to which traditional familial roles or male sexual aggressiveness and violence are natural or the results of socialization, which is why a sameness/difference debate is polarizing the feminist community today...

...So equal-rights feminists are blamed for the problems of displaced homemakers, which is a little like blaming advocates of fair-housing laws for white flight from neighborhoods in which houses are sold to blacks or for the crosses that burn on their lawns...

...Anti-abortion activists exploit this when they characterize abortion as selfish...

...they lost courage or hope and began blaming nature, or, at times, blaming earlier equal rights feminists for challenging nature and the maternal ideal...

...Imagine a woman defining herself as an independent person and not just, not first, as a member of her family...

...In recent years feminists and advocates of minority rights have been confronted with the irony of the extension of rights to people who can't take advantage of them: abortion rights are academic to poor women when public funding for abortions is denied...

...But male sexual aggressiveness and a tendency to exploit women as well as widespread paternal neglect aren't simply biologically compelled...

...In the 1920s feminist supporters of labor laws opposed the ERA...

...But a statement blaming feminists for eroding human qualities does not invite a reasoned response...

...In fact, the gap between legal equality and 390 • DISSENT Woman and Rights social inequality is a central concern for equal-rights feminists too...

...Without support services or a federal commitment to affirmative action and to the enforcement of civil rights laws, equality remained elusive throughout the 1980s...

...Surely history has taught women that much...

...They also disagree about how rights should be allocated—to women as a class or in a gender-neutral fashion to individuals who are similarly situated...

...But the subtleties of much feminist scholarship are lost in public-policy discussions...

...Feminists on both sides of the debate about gender difference, protections, and rights can generally agree that justice sometimes requires treating differently situated people differently: A woman who has suffered discrimination early on in her career may have a right to be evaluated by special standards when decisions about promotion are made...

...Or, as Phyllis Schlafly once declared, men are "analytical minded" and women "more personal...

...Women were presumed to be homemakers and men breadwinners, so a range of state and federal laws extended greater rights, responsibilities, and benefits to men: male wage earners received greater Social Security benefits because it was assumed that men were supporting their families while women worked for fun or pin money...

...it does resist the attempt to feminize what ought to be considered human values and human rights...

...This conventional wisdom was generally legal until the early 1970s when, in a victory for the equalrights movement, the Supreme Court recognized that wage-earner/homemaker laws were discriminatory and ought to be prohibited under the Fourteenth Amendment...

...The first women's rights movement began in the mid-1800s protesting the male monopoly on rights...

...They might remind their communitarian critics that there is such a thing as a feminist community...

...They might blame a culture that encourages women to sacrifice their careers to their husbands and values middle-aged men more than middle-aged women...

...Still, if a friend to feminism, Brennan was hardly a hero to all feminists...

...So sex discrimination is a relatively new concept for the Supreme Court, one that the justices haven't fully embraced—which is another reason the equal-rights movement stalled...

...These persistent inequities can be blamed on politics or nature...

...It is not a great leap from this to The Handmaid's Tale...

...When protectionists demand special benefits for women instead of equal rights, they justify the imposition of special restrictions on them, like maximum hour laws or fetal protection policies, and establish a basis for state control of procreation...

...Support for reproductive choice cannot be reconciled with the traditional ideals of femininity that underlie virtually all protective legislation...

...When it upheld protective labor laws in Muller, the Supreme Court upheld state power to restrict women's freedom of choice in the interests of children yet to be born or even conceived...

...Generally, the new divorce laws give judges the discretion to award long-term maintenance or generous property settlements to women (or men) who have been long-term homemakers...

...Women who demand their rights have always been called selfish, which is partly why nineteenth-century feminists demanded the vote not as a matter of right but as a means of achieving "womanly reforms...

...To some feminists, privacy rights, like First Amendment rights that shield pornographers, are mere instruments of patriarchy: they are said to reflect a masculine obsession with property and the individual accumulation of power...

...the values of women who always choose childbirth over abortion...

...This egalitarian demand for gender-neutral laws does not denigrate what are commonly considered natural feminine values, as protectionist feminists charge...

...Protective criminal laws distorted the prosecution of rape cases, protecting only "good" women—chaste, passive, white women—from sexual assaults...

...To suggest, as some egalitarian feminists do, that disability policies should be gender neutral, that women disabled by pregnancy should receive equal but not extra benefits, is not to ignore the uniqueness of pregnancy and its effect on women's lives...

...She is a vessel of maternal virtue, shaped by faith in the justice of love, rather than a love of justice...

...Fields in which black women were clustered— agriculture and domestic service—were not generally covered by protective laws...

...Not all women are temporarily disabled by pregnancy, and not only women suffer from a range of temporary disabilities...

...What matters are not the unique causes of disabilities but their common effects— temporary inability to work and increased medical expenses...

...Perhaps it proves we need more rights still...

...so they demand laws that treat the sexes differently, as if the mere possibility of becoming pregnant makes women uniformly more compassionate, nurturing, sexually submissive, and interested in family life than men, whose inability to bear children is presumed to make them more ambitious, analytic, sexually aggressive, and emotionally dull...

...Even feminists who agree that men and women are not essentially different in character but also agree that the circumstances of women's lives may sometimes mandate their differential treatment disagree about precisely what circumstantial differences are relevant to the allocation of rights...

...Traditional notions of gender difference have always been at odds with women's rights, as the first generation of contemporary feminists, demanding equality, made clear...

...Equality and respect for choice generally require that laws focus on characteristics other than sex when they parcel out rights...

...Stressing politics, egalitarian feminism has always reflected a belief in the possibility of change...

...Choice suggests that women may naturally be autonomous creatures too, for whom the drive to parent may not always be primary...

...Still, the suggestion that legal rights should be shaped partly by historical realities (an argument for affirmative action) doesn't end the debate about protections and rights for women...

...The second generation of contemporary feminists is leaning back toward separatism, advocating separatist workplace policies such as mommy tracking and educational reforms such as new gynocentric curricula...

...In the 1980s feminists began losing that belief...

...They might blame judges who deny women the postdivorce support to which they are legally entitled...

...It simply means that men and women workers disabled for different reasons should receive comparable benefits, just as some men and women in different jobs ought to receive comparable pay...

...Privacy rights, in which the Court has grounded women's abortion rights, are anathema to those feminists who want to dismantle traditional divisions between the public and private spheres because they effectively condone family violence...

...Instead of rights, conventional antifeminist wisdom holds, women have a natural moral claim to male protection...

...SUMMER • 1991 • 389 Women and Rights Equal-opportunity laws do not always provide equal access, much less equal results, and new rights for women have not been accompanied by much-needed social services—day care, health care, support for battered women, training for women who enter the job market late in life or with severe educational disadvantages...

...Divorce law reform, for example, based on a feminist ideal of marriage as a voluntary union of equals, is said to have been bad for women who are not, in fact, the economic equals of their husbands...

...Hailed as a great victory by Progressives and feminist reformers, this case provided a constitutional rationale for sex discrimination and restriction of reproductive choice...

...How should laws treat women who are still only potentially equal...

...Women are more concerned with feelings than with rights, Carol Gilligan suggested nearly ten years ago...

...Of course, only women get pregnant...

...sometimes it restricts men's rights...

...Feminists today are embracing an old belief in gender difference and turning away from equal rights, arguing that the concept of rights is inherently masculine...

...It also has a historic connection to racism, incorporating white, middle-class standards of femininity that black women were considered naturally incapable of meeting...

...Should law treat women as variable individuals, with equal rights, or as members of a class defined by its capacity to care, nurture, and breed...