Strange bedfellows at work: neomaternalism in the making of sex discrimination law.

• Author: Dinner, Deborah
• Position: Abstract through II. Liberal Individualist Choice Discourse on the Rise in the Courts, p. 453-494

ABSTRACT

In contests about pregnancy discrimination during the 1970s, feminists, the business lobby, and anti-abortion activists disputed the meaning of sex equality. Existing scholarship has yet to take account of the dynamic interaction between these groups. This Article fills that void by analyzing the legal and political debates that resulted in the passage of the Pregnancy Discrimination Act of 1978 ("PDA"). The Article reveals how competing ideas about the family, wage work, and reproductive choice shaped the evolution of pregnancy discrimination law. Feminists, the business lobby, and anti-abortion activists drew upon two legal discourses in debating pregnancy discrimination: liberal individualism and "neomaternalism. " Each of these discourses, in turn, encompassed dual valences. Liberal individualist discourse challenged sex-role stereotypes, but it also reinforced the idea that private reproductive choice rendered reproduction a private economic responsibility. Neomaternalism leveraged the social value of motherhood to gain entitlements for pregnant women, but also reinforced the normative primacy of motherhood.

Feminists' legal goals and rhetorical frames at times overlapped with and at other times diverged from those of both the business lobby and antiabortion activists. Feminists used liberal individualist principles of equal treatment and neutrality to challenge gender stereotypes that states and employers used to justify the exclusion of pregnancy from public and private insurance schemes. The business lobby used liberal individualist principles of private choice to advance a market libertarian interpretation of sex equality that justified the denial of pregnancy-related benefits. In opposition to the business lobby, both feminists and anti-abortion activists forged a fragile alliance. Both groups made neomaternal arguments in advocating the PDA. While feminists emphasized the value of pregnancy as a form of socially productive labor, however, anti-abortion activists stressed the need to protect pregnant women and fetuses.

The points of confluence and departure between the arguments of feminists, business opponents, and anti-abortion allies both advanced sex equality under the law and also limited its scope. Feminist advocates for the PDA synthesized liberal individualist and neomaternal discourses to pursue the elimination of sex-role stereotypes under the law as well as collective societal responsibility for the costs of reproduction. While the PDA took a significant step toward the realization of this vision, it remains illusory. Our legal culture evolved to embrace not only the valences of liberal individualist and maternalist ideologies that advance sex equality but also those valences that reinforce gender inequality. Market libertarianism continues to privatize the costs of reproduction, while maternalism reinforces the sexual division of reproductive labor. Ultimately, this Article points to the persistence of tensions in the definition of sex equality and the consequent need for new legal paradigms.

TABLE OF CONTENTS INTRODUCTION I. THE POLITICAL ECONOMY OF PREGNANCY DISCRIMINATION A. Liberal Individualism, Maternalism, and Labor Reform in the Progressive Era and New Deal B. The Exclusion of Pregnancy from Public and Private Insurance Plans C. Sex Equality Claims for the Inclusion of Pregnancy Within Public and Private Insurance Plans D. Traditional (render Ideologies as a Defense to Pregnancy Discrimination Claims II. LIBERAL INDIVIULALIST CHOICE DISCOURSE ON THE RISE IN THE COURTS A. Competing Conceptions of Choice B. States and the Business Lobby Embrace Privacy and Choice C. Feminists Turn toward Neomaternal Arguments D. The Supreme Court Affirms a Market Libertarian Interpretation of Sex Equality E. Gilbert and a Changed Labor Market III. NEOMATERNAL POLITICS: THE CONTROVERSY IN CONGRESS A. "Roe v. Wade Set the Precedent": Anti-Abortion Advocacy for the Pregnancy Discrimination Act B. "Can Pregnancy be Truly Voluntary?": Feminists Reframe Their Argument C. "The Price Tag of a Baby": Congress Constructs a Pro- Family Bill D. "I d Draw a Picture of ... the Robber Barons Chuckling": The Beard Amendment Threatens the PDA Coalition E. A Statutory Compromise: The Imprint of Neomaternalism and Market Libertarianism on the Design of the PDA IV. THE LEGACIES OF LIBERAL INDIVIDUALISM AND NEOMATERNALISM IN INTERPRETIVE CONTROVERSIES ABOUT THE PDA A. The 1980s Split in Legal Feminism B. Liberal Individualism and Neomaternalism in Contemporary Doctrinal Controversy CONCLUSION INTRODUCTION

In contests about pregnancy discrimination during the 1970s, feminists, the business lobby, and anti-abortion activists disputed the meaning of sex equality. Existing scholarship has yet to take account of the dynamic interaction between these groups. This Article fills that void by analyzing the legal and political debates that resulted in the passage of the Pregnancy Discrimination Act of 1978 ("PDA"). (1) For all sides in these debates, the definition of sex equality was contingent and dynamic rather than transcendent and static. Feminists' legal goals and rhetorical frames at times overlapped with and at other times diverged from those of both the business lobby and anti-abortion activists. These points of confluence and departure advanced sex equality under the law but also limited its scope.

Feminists, the business lobby, and anti-abortion activists drew upon two legal discourses in debating pregnancy discrimination: liberal individualism and what I call "neomaternalism." Liberal individualism emphasized principles of same treatment, private choice, and neutrality under law. This Article is the first piece of scholarship to identify and analyze neomaternalism, a form of advocacy in the 1970s that leveraged the social value of motherhood to lay claim to state entitlements for pregnant workers. Neomaternal advocacy modernized progressive and New Deal era maternalist reform traditions, which had mobilized conceptions of reproductive sex difference, maternal nurture, and motherhood's social value to argue for protective labor standards for women workers and social-welfare entitlements protecting low-income women and children. By contrast with this earlier form of maternalist advocacy, which had reinforced the family-wage ideal, the neomaternal advocacy of the 1970s promoted equal employment opportunity for women. Neomaternal advocacy used an older rhetoric--that motherhood constituted a service to society--to advance a new legal ideal affirmed pregnant women's right to economic independence as well as security.

The richer history provided in this Article challenges the conventional view that the PDA marked the apex of a transformation from the protection of women to sex equality. The dominant narrative takes two forms. Some scholars argue that the PDA marked a turn in American law from special treatment for women to same treatment of women and men. (2) More recent scholarship characterizes the PDA as a triumph of feminists' efforts to challenge sex-role stereotypes under the law. (3) This Article's historical analysis illustrates how both forms of the dominant narrative overlook the complex, surprising, and nuanced evolution of the meaning of sex equality during the 1970s. In particular, the dominant narrative overlooks the ways in which neomaternalism as well as liberal individualism shaped the debates leading to the PDA.

Neither liberal individualism nor neomaternalism captured the entirety of feminists' legal agenda. Rather each form of discourse posed specific benefits and risks. Feminists marshaled liberal individualist principles to challenge the sex-role stereotypes that state governments and employers used to rationalize the exclusion of pregnancy from public and private insurance plans. By contrast, the business lobby deployed liberal individualist discourse to legitimate concepts of free contract and private ordering that reinforced gender-and race-based status hierarchies. (4) Liberal individualism thus held the potential to challenge the ways in which law entrenched the family-wage ideal as well as the potential to mask workplace structures that perpetuated gender inequalities as sex neutral.

Conversely, feminists and anti-abortion activists forged a tenuous alliance. Both groups drew upon neomaternal discourses to advocate the PDA. Anti-abortion activists argued for the protection of childbearing workers as a means to protect fetuses. They believed that prohibitions on pregnancy discrimination would increase women's economic security and encourage them to bring their pregnancies to term rather than to abort. Feminists also made neomaternal arguments that stressed the societal value of childbearing. Rather than calling for the protection of women in their childbearing roles, however, feminists emphasized that childbearing constituted a form of labor deserving of public support. Neomaternalism helped to articulate the relationship between sex equality and the just distribution of the costs of reproduction. But neomaternalism also threatened to reinforce the normative primacy of motherhood.

Feminists' synthesis of liberal individualist and neomaternal discourses aspired to a vision of sex equality that would both transform gender roles and support women in their gendered roles as mothers. In combatting the exclusion of pregnancy from public and private insurance schemes, feminists challenged several gender stereotypes about men and women's roles in the workplace and the family. The campaign for pregnancy disability and health insurance benefits, however, did more than challenge sex-role stereotypes. Feminists, advocating for pregnancy-related benefits, also took steps toward challenging what Martha Fineman has since theorized as the privatization of dependency. (5) Unlike advocacy by welfare rights activists and socialist feminists on behalf of state support for mothering within...