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

AuthorDinner, Deborah
PositionIII. Neomaternal Politics: The Controversy in Congress through Conclusion, with footnotes, p. 494-530
  1. NEOMATERNAL POLITICS: THE CONTROVERSY IN CONGRESS

    Part III traces the ascendance of neomaternal politics in Congressional debates over the Pregnancy Discrimination Act of 1978. Part III.A analyzes how anti-abortion activists made arguments for the PDA based on the need to protect childbearing women. Advocacy by anti-abortion activists for the PDA against the business lobby's opposition illustrates the tenuous character of the Republican alliance between market and social conservatism, as late as 1978. In the 1972 presidential election campaign, Republican strategists had used the abortion issue to chip away at the New Deal coalition of blue-collar workers, labor unions, African-Americans, and religious and ethnic minorities. These strategists had attempted to use social disagreement on issues of sex and gender, as well as race, to attract Catholics, southerners, and social conservatives to the Republican Party. (183) But the alignment between the pro-business and socially conservative elements of the Republican Party did not coalesce fully in the 1970s. This history helps to explain why some anti-abortion activists came to embrace equal employment opportunity for women, even as they took a socially conservative position on abortion. Not until the mid-1980s would the antiabortion movement--influenced by Protestant fundamentalism--take strongly conservative stances on sexuality, marriage, and the family. (184)

    Part III.B shows that in the legislative campaign for the PDA, legal and labor feminists, too, made neomaternal arguments. Feminists increasingly coupled anti-stereotyping arguments for pregnancy disability benefits with arguments depicting pregnancy as a form of socially valuable labor. These arguments resonated with the rhetoric of early-twentieth century reformers but feminist advocacy for the PDA differed ideologically from earlier maternalism. Instead of arguing for differential treatment of women as a group defined by gender status, feminist advocates argued for equal treatment of pregnant women. Instead of arguing that women's reproductive capacity justified the protection of women, advocates argued that pregnancy's economic and societal value justified making it a collective, societal responsibility. Neomaternal arguments wielded by both anti-abortion activists and feminists helped to overcome the business lobby's market libertarian opposition to the PDA.

    Part III.C shows how the neomaternal construction of the PDA's meaning contributed to the passage of the PDA. The construction of the bill as legislation that would support women's decisions to bear children enhanced its political popularity. Liberal politicians who supported abortion rights nonetheless framed the PDA as legislation that would protect the decision whether to bear a child from the harsh calculus of the marketplace. Furthermore, the construction of the PDA as a "pro-life" bill split the loyalties of Republican Congressmembers between fiscal and social conservatism.

    Social anxieties about race contributed to a political environment receptive to neomaternal policies. Although the PDA was formally race neutral, racial and gender ideologies were intertwined in the politics surrounding the bill. Historian Ruth Feldstein argues that from the New Deal to the mid-1960s liberal political actors deployed conservative ideas about gender and mothers, in particular, to advance racial liberalism. (185) The late 1970s debates about the PDA saw the inverse. Conservative racial ideologies shaped receptivity to liberal antidiscrimination laws that also affirmed neomaternal commitments.

    As Part III.D demonstrates, the neomaternal construction of the PDA facilitated the enactment of an anti-abortion rider. The anti-abortion rider created an asymmetry in the design of the PDA: the statute spreads the costs of pregnancy across employees and employers but reinforces the legal construction of abortion as the private economic burden of individual women. As enacted, the bill affirmed women's right to economic support for childbearing but not for women's exercise of their right to abortion.

    1. "Roe v. Wade Set the Precedent Anti-Abortion Advocacy for the Pregnancy Discrimination Act

      The legislative debate about the PDA witnessed renewed conflict between feminist advocates and the business lobby. Ruth Weyand, the IUE attorney who had litigated Gilbert, and Susan Deller Ross, the attorney who as a staff member at the EEOC had helped to persuade the agency to adopt the temporary disability paradigm for pregnancy, co-chaired the Campaign to End Discrimination Against Pregnant Workers. Headquartered in Washington, D.C., the Campaign lobbied Congress to pass the PDA, which would amend Title VII to define pregnancy discrimination as unlawful sex discrimination. The Campaign ultimately amassed the support of over two hundred organizations and sustained legislative advocacy for twenty-one months, from December 1976 through August 1978. (186)

      Trade associations continued to mobilize against the PDA by emphasizing the bill's costs to employers. (187) The business lobby argued that employers should not have to take responsibility for these costs. (188) Drawing on market libertarian logic, the business lobby suggested that the costs of reproduction naturally rested within the private family. "[T]he essential question in consideration," according to the National Association of Manufacturers ("NAM"), did not involve sex discrimination but rather how far Congress wanted "to go in subsidizing parenthood." (189) The PDA went "too far in requiring employers to assume the economic responsibilities of parenthood." (190) In portraying the PDA as an attempt to subsidize the costs of reproduction rather than to remedy sex discrimination, (191) NAM implicitly interpreted the Act's legal requirements quite broadly. The PDA set a baseline requirement that if employer fringe benefit plans offered health and other benefits related to temporary disability, then the employer could not exclude pregnancy. Only if disparate-impact liability enabled plaintiffs to change this baseline, would the PDA more dramatically shift the costs of pregnancy and childbirth from individual women to employers. (192)

      Some social conservatives joined the business lobby in applauding Gilbert and opposing the PDA. For these social conservatives, Gilbert correctly affirmed women's place in the home rather than the workplace. Phyllis Schlafly, the prominent conservative activist who led the STOP ERA campaign in the states, argued: "Pregnancy is a privilege and a right, but you can't make industry or government pay for it." (193) To buttress her argument about the just allocation of the costs of pregnancy, Schlafly appealed to the family-wage ideal: "Disability benefits are supposed to pay the lost wages of the family provider." (194) Schlafly thus suggested that women are not breadwinners. She argued further that government and employers should not replace the role of men as providers. Neither government nor employers paid for the pregnancies of women who stayed in the home, Schlafly reasoned; neither should they pay for the pregnancies of employed women. (195)

      While the business lobby and some social conservatives opposed the PDA, feminists found a new ally in some anti-abortion organizations. At the time that Congress began to debate the PDA, anti-abortion activists evinced a relatively broad spectrum of political ideologies. Some, like Schlafly, opposed both abortion and pregnancy discrimination benefits on the basis that they disrupted traditional gender roles. Other organizations, however, both took an anti-abortion stance and supported legislation that challenged traditional gender and sexual ideologies. (196)

      American Citizens Concerned for Life ("ACCL") exemplified antiabortion advocacy in favor of neomaternal social policy. Marjory Mecklenburg and Judith Fink founded ACCL in 1974. (197) The two women wanted to create an organization that was more liberal than the National Right to Life Committee ("NRLC") on the issues of sex education, family planning, and public welfare for single mothers. The ACCL's support for these policies advanced sex equality by giving women control over their sexual lives, by challenging the feminization of poverty, and by enhancing women's economic autonomy. (198) ACCL retained significant influence over the NLRC during the early 1970s. In the latter half of the decade, however, the organization lost power within the broader anti-abortion movement as a result of several factors. These factors included: the increased involvement of anti-feminist organizations in the movement; its deepening ties to New Right and Religious Right political mobilization; and the rhetoric of feminist activists who described anti-abortion activists as inherently anti-feminist. (199)

      Mecklenburg and Fink believed that the best strategy to combat abortion was to prevent unwanted pregnancies. As Mary Ziegler explains, ACCL held the "philosophy ... that fetal rights could be protected only if women were themselves guaranteed better legal and economic opportunities." (200) ACCL leaders sought to balance the rights of women and the rights of fetuses not only by campaigning against abortion but also by advocating public health services for pregnant women. (201) They believed that in the absence of such supportive services, society metaphorically "aborted" women via a form of structural violence that in turn generated the abortions of fetuses. (202) ACCL pursued a neomaternal agenda that involved protection for women and fetuses beyond prohibitions on abortion.

      In March 1977, ACCL issued a press release criticizing the Gilbert decision. ACCL objected to businesses' use of reproductive choice discourse to justify private responsibility for the costs of reproduction. The organization's press release on Gilbert stated: "The attorneys for General Electric took the position that women employees...

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