I’d always heard that “privacy” was the issue upon which the Roe v Wade decision was based, but the word “privacy” in this context has never really made sense to me. Because of reading “Sisters In Law”, I’ve spent time trying to understand what “privacy” means. It’s helped my thinking process to write it out my thoughts.
I think it’s critical to start with an understanding of what the mainstream perspective on “womanhood” was in 1973. My understanding of it is rooted in the fact that I was born in 1950, so was 23, socially conscious and curious at the time.
In 1973, I think the entrenched view shared by most men and woman (those not yet influenced by the “women’s movement”, which was still considered suspect by the general population), meant always defining woman -implicitly, and sometimes explicitly – in relation to men, who were accepted as the natural born leaders in politics, society, business and family.
It was accepted that individual women could be smart, strong, capable and courageous, and so a kind of grotesque model evolved of what a woman was, so it could accommodate women’s capacities, while still making them subordinate. (It reminds me of my Uncle, a lifelong Republican, explaining to me that Obama clearly had exceptional abilities, but was inexperienced, and so was an unacceptable candidate for president.)
In this model, the aspect of women that most worked to disadvantage them was their reproductive ability, which included periods, vaginas, pregnancy, childbirth, and their mothering/ nurturing instincts.
These aspects of being a woman were considered by most men, and woman, to be somewhat mysterious, vulgar, unsightly, embarrassing, and a weakness that disqualified them from significant leadership roles.
Because of this basic “weakness”, women were seen as needing, and deserving of, special treatment – protection, culturally and legally – protection, of course, provided by men, through social norms, as well as the laws that men passed.
In 1971, the SCOTUS justices who heard RBG’s argument in Reed v Reed, embodied this widely accepted view of women. I suspect their wives did, as well.
RBG was a rare mind who saw, with crystal clarity, that this special treatment of women, built into the U.S. culture and laws, actually served to disadvantage women, and profoundly so, even while intending to benefit/protect them. This idea seemed so wrongheaded at first. Men took pride in protecting women. The idea that their efforts might actually hurt women seemed both counter intuitive, and insulting.
Since RGB’s work challenged such a foundational view, progress, particularly progress that didn’t generate a cultural backlash, would have to embody the opposite of the popular conception of women – it would have to be acutely strategic, methodic, patient and relentless.
The Reed v Reed decision created a crack of light that laws meant to favor women, might actually disadvantage them. However, it fell short of establishing the concept that all laws treating women differently than men needed to be reviewed to ensure that their enforcement did not create inequality between men, and women – the standard that race is held to.
A case focusing on abortion laws would open the key area of reproduction to a fresh assessment of the consequences of those laws.
Unfortunately, the lawyers in charge of bringing the Roe v Wade case to the high court refused to argue that abortion laws placed women in an unequal class. Instead, they argued that abortion laws invaded a special, private relationship between women and their doctors.
There was one role, which penetrated the veil of reproductive embarrassment and shame: the gynecologist. A male (or the rare female) gynecologist was allowed to inhabit a unique relationship with women patients. The gynecologist could provide medical care in this yucky area, off limits to all other men.
There was no existing legal theory that men had a special relationship with their doctors. By implicitly arguing that women had a need for a special, private relationship with their doctors, the lawyers were actually reinforcing the very stereotype, and inequality, that RBG was fighting against.
If Roe v Wade does fall during the 2021-2022 SCOTUS session, some redemption might be found in further motivating voters toward Democrat candidates. A stronger Congressional majority might allow Democrats to remedy the current SCOTUS composition, and Congress to make abortion legal by legislation.
Most maddeningly, recent Republican gerrymandering may have made a Democrat majority in both houses nearly impossible in 2022. Ugh!
A tangential thought on how women were viewed pre-1973, is the character of Lucy in the “I Love Lucy” TV show. Even though Lucy was obviously more charismatic, alive, intelligent and had a bigger personality than the character “Desi”, she was given a ditzy quality that made her an undependable person, with questionable judgement. It was clear that Desi, even as an immigrant from what was seen as the “banana republic” country of Cuba, was born by gender to be the boss.
Moreover, when Lucille Ball became pregnant, the network felt public opinion would find a display of her pregnancy to be inappropriate – something to be kept private. There was no pushback from women on her ditziness, or invisible pregnancy.
Because this view of women was so well established, and longstanding, the “women’s lib” movement, which started gaining momentum in the late 1960s, was marginalized as populated by angry, sexually frustrated, misguided woman, who had abandoned their natural role as nurturing mothers, to raise havoc.
How can we have come so far, and have changed so little?