When I was in fifth grade, my teacher had a policy that girls were not allowed to play in the football games at recess. I derailed class one day to argue that her policy was unfair. I don't remember what happened. I didn't want to play football. I still don't know how to play football, and I don't care. But I was beyond outraged that a teacher made a blanket rule that girls couldn't handle playing football and needed to be blocked from participating, apparently for their own safety.
The idea that women are a special class of human that need protecting is embedded in our culture, and as Emily Bazelon explores in New York Times Magazine, the gains that women have made in our society have not wiped out this concept from our laws. She outlines what Justice William Brennan called "'romantic paternalism' which, in practical effect, put women not on a pedestal, but in a cage." There used to be laws restricting women's work hours that didn't restrict men's, or keeping them from jobs like bartending or working at night. Unsurprisingly, this condescension manifests today in restrictions on abortion rights:
In light of this history, it's telling that today's abortion opponents have dusted off the word ''protection'' to justify regulations that are shutting down clinics across the country. The anti-abortion group Americans United for Life, which drafts model legislation for states, has what it calls a Women"s Protection Project, with out-of-the-box bills called the Women's Health Protection Act and the Women's Health Defense Act. After decades of battling for the life of the unborn child, abortion opponents have started arguing that for the sake of women seeking abortions -- to protect their health and safety -- the state must impose strict new regulations on clinics. In 2013, the Texas Legislature passed a bevy of new rules (the epilogue to State Senator Wendy Davis's filibuster in her pink tennis shoes). The new law requires clinics to employ a doctor who has privileges to admit patients at a nearby hospital and to meet the construction and equipment standards for an ''ambulatory surgical center,'' which include temperature controls, hallways wide enough for a gurney and special ventilation units. The estimated cost of renovating an existing clinic is $1.5 million to $3 million.
This attempt at a kinder, gentler approach to attacking women's rights lines up very well with a study showing that anti-choice positions correlate with sexism:
The study also confirmed its main hypothesis: that sexist attitudes were correlated to anti-abortion views. As individuals increasingly endorsed either hostile or benevolent forms of sexism, they also tended to increasingly endorse anti-abortion views.
"This suggests that sexism, regardless of whether it is justified through traditional, old-fashioned misogynistic rhetoric or through a 'kinder' or 'more gentle' rhetoric, plays a continued and significant role in the opposition to abortion rights for women," the researchers said.
The study described benevolent sexism as "the belief that women are nurturing, caring and gentle, but cannot function properly without protection from a strong male partner." Anti-choice activists have successfully pushed for the government to be that metaphorical strong male partner. For a recent pro-choice bill I was working on in the state legislature, anti-choice opponents (mostly women) came out in droves. Some of the women stood up and described themselves as survivors or sufferers of abortion, as though abortion is something done to a woman, and not a conscious choice she makes. They have every right to feel however they want about their abortion experiences, though I have to imagine they've been impacted by a community that enforces shame and stigma around the procedure. But it's offensive for them to project that vulnerable victim status on to all women, and to expect governments to legislate accordingly. An upcoming Supreme Court case will decide if they've finally gone too far in the eyes of the law:
On March 2, the Supreme Court will hear a challenge to the Texas law. Whole Woman's Health, which operates four clinics in the state, has brought the suit, arguing that Texas' stated goal of protecting women is a cover for closing clinics and that the law has no real medical purpose. Instead, it imposes an ''undue burden'' -- the Supreme Court's constitutional test -- on women's right to reproductive care. If the Texas restrictions are allowed to go fully into effect, the number of abortion clinics in the state is projected to drop to eight or nine, from 44 three years ago, across nearly 270,000 square miles. More than 20 states have enacted laws with some or all of the Texas restrictions.
Justice Scalia's death changes the landscape of the court, but it still really comes down to Justice Anthony Kennedy as the person who could flip to the pro-choice side and strike down these types of laws. Bazelon points out that he has echoed that same paternalism in a previous court decision on abortion, claiming that some women regret having abortions (in fact 95% report that they don't) and using that to justify Congress's making the decision for them. There are many more dangerous medical procedures that men undergo, and no one is "protecting" them with laws that replace their judgment. For the sake of women around the country, I hope Justice Kennedy can be convinced to change his mind, and trust women to make our own best decisions in the way it's taken for granted that men will.