Misappropriating Women's History in the Law and Politics of Abortion

JurisdictionUnited States,Federal
CitationVol. 36 No. 01
Publication year2012

Washington Law ReviewVolume 36, No. 1, Fall 2012

ARTICLES

Misappropriating Women's History in the Law and Politics of Abortion

Tracy A. Thomas(fn*)

Table of Contents

I. Introduction .................................................................................. 2

II. Feminists for Life: Oxymoron or Historical Truth? ............. 7

A.The Antiabortion Feminists .......................................................... 9

B."The Feminist Case Against Abortion" ..................................... 12

C.The Elizabeth Cady Stanton Pregnant and Parenting

Student Services Act ................................................................. 16

III. Abortion in the Nineteenth Century ...................................... 19

A.The Male Campaign Against Abortion ....................................... 20

B.Feminist Voices and Voluntary Motherhood .............................. 26

IV. Enlightened Motherhood ........................................................ 30

A.The Sovereign of Her Own Person ............................................. 31

B."Lions Not Jackasses" ............................................................... 33

C.Sparring with Mrs. Stanton ........................................................ 35

V. Stanton Reframes the Debate as Women's Oppression ....... 39

A.Stanton's "Infanticide and Prostitution" ................................... 40

B.Defending Hester Vaughn .......................................................... 41

C.A Jury of Her Own ..................................................................... 48

VI. Stanton's Revolution ................................................................. 54

A.Writing Women's Rights ............................................................. 55

B."Where Lies the Remedy?" ........................................................ 59

C.The Absence of Abortion Advertisements ................................... 62

VII.Conclusion: The Search for Common Ground ...................... 63

I. INTRODUCTION

Over the past twenty years, prolife advocates have sought to control the political narrative of abortion by misappropriating women's history. Conservatives, led by the group Feminists for Life (FFL), have used historical feminist icons to support their antiabortion advocacy. Federal antiabortion legislation has been named after feminist heroines.(fn1) Amicus briefs to the U.S. Supreme Court quote women's rights leaders in support of abortion regulation.(fn2) And political forums for college students popularize the notion that feminists historically opposed abortion.(fn3) Prolife groups claim that "[w]ithout known exception, the early American feminists condemned abortion in the strongest possible terms."(fn4) This political narrative, however, misconstrues the historical evidence. It invents rather than describes history, blatantly ignoring the text, context, and spirit of the work of the women it appropriates. Such misuse of history diminishes, rather than enhances, the credibility of this antiabortion advocacy.

The appeal to historical figures in the abortion debate is powerful because it utilizes the gravitas of feminist heroines to challenge the existing legal and political assumption that abortion is a cornerstone of sex equality. The use of feminist leaders suggests that women themselves, even radical feminist women like Elizabeth Cady Stanton and Susan B. Anthony,(fn5) have traditionally opposed abortion.(fn6) If these feminist leaders indeed opposed abortion, the historical story would seem to bolster the claim that abortion is not in the best interests of women.(fn7)

The need to create a history of antiabortion feminists seems important today because abortion has come to be equated with women's rights. Since the second wave of the women's liberation movement in the late 1960s, feminists have identified abortion as a foundational right for women upon which all other economic and educational rights rest.(fn8) The appeal to feminist history by prolife advocates offers a counter-narrative in which women dedicated to improving the economic and educational rights of women reject abortion as a gender-based right. This story of women leaders opposing abortion is thus aimed at undermining the prevailing feminist and legal view that a woman's right to bodily autonomy and reproductive choice is a privacy right of constitutional dimension going to the heart of gender equality.

The lack of popular knowledge about the lives and work of women's rights leaders facilitates the co-opting of the historical feminist narrative by antiabortion activists. Most people, politicians, and policymakers lack a familiarity with these women's lives or their work, much less the details of their philosophies and speeches. It is therefore easy to make the claim that a feminist leader had a particular belief because few are able to challenge it.(fn9) Despite the ease and utility of creating a feminist history against abortion, the narrative is simply not true. Sound bites that have been excised from history are taken out of context to convey a meaning not originally intended.(fn10)

To examine the veracity of the political and legal claims of a feminist history against abortion, this Article focuses on one of the leading icons used in antiabortion advocacy-Elizabeth Cady Stanton.(fn11) Stanton has, quite literally, been the poster child for FFL's historical campaign against abortion, appearing on posters, flyers, and commemorative coffee mugs.(fn12) Advocates claim that Stanton is a particularly fitting spokesperson because she was a "feisty gal who had seven children and was outspokenly prolife."(fn13) They claim that she "condemned abortion in the strongest possible terms"(fn14) and was "a revolutionary who consistently advocated for the rights of women, for women's education, for the celebration and acceptance of motherhood-and for the protection of children, born and unborn."(fn15) FFL represented to the Supreme Court that "Elizabeth Cady Stanton clearly argued that the liberation of women was needed to stop the killing of children before and after birth" and that she expressed "an uncompromising view that abortion is 'child-murder.'"(fn16)

Stanton is an important figure in feminist history who was the "most prominent and brilliant theorist" of the nineteenth-century women's rights movement.(fn17) She is credited with initiating the radical demand for women's suffrage at the First Woman's Rights Convention in 1848 at Seneca Falls, New York.(fn18) Beyond the vote, Stanton demanded equality for women within the family, advocating for equal marital partnerships, no-fault divorce (especially for victims of domestic violence), marital rights to property, and maternal custody of children.(fn19) She appeals to the prolife movement as a heroine because she was the married mother of seven children who trumpeted her caregiving skills and maternal power.

What is less known, and likely less appealing to the right-to-life movement, is that Stanton also attacked the church and accepted religious doctrines of women's subordination. She retranslated the Bible from Greek with a feminist lens in an attempt to destroy the entrenched gender norms grounded in religion.(fn20) "While her fellow radical Susan B. Anthony ultimately focused on women's suffrage as the way to equality, Stanton was concerned with changing cultural infrastructures such as religion; family and child-rearing; and American customs, ethics, and social norms."(fn21) Stanton articulated liberal feminist ideas seeking equal treatment and opportunity for women, while also radically demanding an end to patriarchy and women's lack of power in society.(fn22)

To refute the "feminist case against abortion" as attributed to Stanton, this Article proceeds in five parts. Like other works of legal history, this Article is fundamentally concerned with recovering all of the legally relevant facts and placing those facts in appropriate historical and legal context. Part II first details the parameters of the political narrative of antiabortion feminists, focusing on the group Feminists for Life, which orchestrated this historical strategy. Part III then situates Stanton's remarks and views within the appropriate historical context by tracing the development of the nineteenth-century campaign to criminalize abortion. The male propaganda of a physicians' campaign bolstered by sensationalist journalism attacked the common law acceptability of abortion before quickening and employed antifeminist rhetoric about the proper place of women in society.(fn23) While a few female voices joined the debate to defend women against moral attacks and place the blame for unwanted pregnancies instead on men, the larger women's rights movement focused on issues of equality and increasingly on the singular issue of suffrage.(fn24)

The Article then offers a detailed account of Stanton's views related to abortion discerned from original historical research into the archives of Stanton's papers.(fn25) Stanton did not talk about abortion per se. She did not respond to the media deluge about the immorality of abortion or the demand for its criminalization. Instead, Stanton engaged on the periphery of the debate, trumpeting "voluntary motherhood" and women's right to control procreation, and defending women convicted of infanticide for the murder of their infants after...

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