Applications Of Feminist Legal Theory

Applications Of Feminist Legal Theory

Edited by D. Kelly Weisberg
Copyright Date: 1996
Published by: Temple University Press
Pages: 1200
https://www.jstor.org/stable/j.ctt14bs8md
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  • Book Info
    Applications Of Feminist Legal Theory
    Book Description:

    This book, the second of two volumes, examines the pressing issues that affect women-pornography, prostitution, battery, rape, pay equity, sexual harassment, motherhood, abortion, adoption, new reproductive technologies-and considers them through the lens of feminist legal theory. It features more than sixty articles by well-known legal scholars and feminists. The contributions are arranged thematically and include an introduction and comprehensive literature review by the editor. Applications of Feminist Legal Theory to Women's Lives will be a valuable text for students, a resource for scholars and policy makers, and a useful introduction for general readers.

    eISBN: 978-1-4399-0136-6
    Subjects: Sociology

Table of Contents

  1. Front Matter
    (pp. i-iv)
  2. Table of Contents
    (pp. v-x)
  3. PREFACE
    (pp. xi-xii)
  4. PART I: SEXUALITY

    • 1. Pornography

      • Introduction
        (pp. 5-27)

        The antipornography movement has ignited one of the most heated controversies in feminist legal theory today. Feminist scholarship about pornography dates to the 1970s.¹ During that period, writers Robin Morgan, Susan Brownmiller, and Andrea Dworkin² introduced the view that pornography represents an ideology that influences social attitudes.

        Robin Morgan, for example, linked pornography and rape. “Pornography is the theory, and rape the practice,” she wrote.³ Similarly, Susan Brownmiller, inAgainst Our Will: Men, Women and Rape, identified pornography as one of two major institutions (along with prostitution) that contribute to rape.⁴ Calling for a ban on pornography, she wrote that...

      • Against the Male Flood: Censorship, Pornography, and Equality
        (pp. 28-36)
        Andrea Dworkin

        In the United States, it is an $8-billion trade in sexual exploitation.

        It is women turned into subhumans, beaver, pussy, body parts, genitals exposed, buttocks, breasts, mouths opened and throats penetrated, covered in semen, pissed on, shitted on, hung from light fixtures, tortured, maimed, bleeding, disemboweled, killed.

        It is some creature called female, used.

        It is scissors poised at the vagina and objects stuck in it, a smile on the woman’s face, her tongue hanging out.

        It is a woman being fucked by dogs, horses, snakes.

        It is every torture in every prison cell in the world, done to women...

      • Not a Moral Issue
        (pp. 37-58)
        Catharine A. MacKinnon

        A critique of pornography¹ is to feminism what its defense is to male supremacy. Central to the institutionalization of male dominance, pornography cannot be reformed or suppressed or banned. It can only be changed. The legal doctrine of obscenity, the state’s closest approximation to addressing the pornography question, has made the First Amendment into a barrier to this process. This is partly because the pornographers’ lawyers have persuasively presented First Amendment absolutism,² their advocacy position, as a legal fact, which it never has been. But they have gotten away with this (to the extent they have) in part because the...

      • Francis Biddle’s Sister: Pornography, Civil Rights, and Speech
        (pp. 59-79)
        Catharine A. MacKinnon

        At the request of the city of Minneapolis, Andrea Dworkin and I conceived and designed a local human rights ordinance in accordance with our approach to the pornography issue. We define pornography as a practice of sex discrimination, a violation of women’s civil rights, the opposite of sexual equality. Its point is to hold those who profit from and benefit from that injury accountable to those who are injured. It means that women’s injury—our damage, our pain, our enforced inferiority—should outweigh their pleasure and their profits, or sex equality is meaningless.

        We define pornography as the graphic sexually...

      • Pornography and the First Amendment: A Reply to Professor MacKinnon
        (pp. 80-86)
        Thomas I. Emerson

        Professor Catharine MacKinnon, in a recent article ... , powerfully and perceptively developed her thesis that pornography is “[c]entral to the institutionalization of male dominance.”¹ Pornography, she urges, is “a political practice” that “causes attitudes and behaviors of violence and discrimination which define the treatment and status of half of the population.” I am not sure that I would draw the line between Eros and dehumanization at the same point as Professor MacKinnon appears to. Moreover, all the evidence is not yet in as to the actual impact of pornography, and Professor MacKinnon may overstate its role in the subordination...

      • Whose Right? Ronald Dworkin, Women, and Pornographers
        (pp. 87-103)
        Rae Langton

        ... Should liberal theorists be in favor of permitting pornography? As champions of our basic liberties, and as champions especially of free speech, liberals have found it easy to answer this question with a simple “yes.” They are of course accustomed to viewing their opponents in this debate as conservatives, who want pornography prohibited because it is immoral: liberals view moralistic motives of this kind with deep (and doubtless justified) suspicion. But there are other voices in the debate, too, voices arguing that we have reason to be concerned about pornography not because it is morally suspect, but because we...

      • AMERICAN BOOKSELLERS ASS’N, INC. v. HUDNUT
        (pp. 104-109)

        Indianapolis enacted an ordinance defining “pornography” as a practice that discriminates against women. “Pornography” is to be redressed through the administrative and judicial methods used for other discrimination. The City’s definition of “pornography” is considerably different from “obscenity,” which the Supreme Court has held is not protected by the First Amendment.

        [In Miller v. California, 413 U.S. 15 (1973), the Supreme Court held that for a publication to be obscene, it must, taken as a whole, appeal to the prurient interest, must contain patently offensive depictions or descriptions of specified sexual conduct, and have no serious literary, artistic, political, or...

      • BUTLER v. THE QUEEN
        (pp. 110-117)

        [The defendant, Butler, owned and operated a store selling and renting hard core pornographic videos and magazines and selling sexual paraphernalia. He was convicted of 8 counts of possession and sale of obscene materials (relating to eight different films) and acquitted on 242 counts. The Crown appealed the 242 acquittals; Butler appealed the convictions. The Court of Appeal for Manitoba dismissed Butler’s appeal, and entered convictions on the remaining 242 counts. However, the Court of Appeal, disagreeing with the trial court which had ruled that the obscene articles were protected by the free expression guarantee, concluded that obscene materials were...

      • Brief Amici Curiae of Feminist Anti-Censorship Taskforce et al., in American Booksellers Association, Inc. v. Hudnut
        (pp. 118-130)
        Nan D. Hunter and Sylvia A. Law

        The document that follows represents both a legal brief and a political statement. It was written for two purposes: to mobilize, in a highly visible way, a broad spectrum of feminist opposition to the enactment of laws expanding state suppression of sexually explicit material; and to place before the Court of Appeals for the Seventh Circuit a cogent legal argument for the constitutional invalidity of an Indianapolis municipal ordinance that would have permitted private civil suits to ban such material, purportedly to protect women.¹ ...

        The brief was written on behalf of the Feminist Anti-Censorship Taskforce (FACT).

        . . ....

      • A Feminist Critique of “The” Feminist Critique of Pornography
        (pp. 131-149)
        Nadine Strossen

        [This Essay] counters the Dworkin-MacKinnon pro-censorship position with an argument grounded in feminist principles and concerns. [It] elaborates upon ten major ways in which censoring “pornography”! would have an adverse impact upon women’s rights and interests....

        The ACLU’s brief inHudnutnoted the adverse impact of “pornography” censorship on feminist concerns. It explained that the Dworkin-MacKinnon model law, by proscribing sexually explicit depictions of women’s “subordination,” outlawed not only many valuable works of art and literature in general, but also many such works that are particularly important to women and feminists:

        Ironically, much overtly feminist scholarly material designed to address...

      • Sex, Sin, and Women’s Liberation: Against Porn-Suppression
        (pp. 150-161)
        Carlin Meyer

        If porn-suppression reduced violence and aggression against women, thereby enhancing women’s self-expression and power, it might arguably be a worthwhile effort, notwithstanding its harmful effects. Appealing as it may be to discover in pornography’s vulgar phallocentrism the well-spring of male domination, porn simply is not that important.¹ Treating it as such merely deflects attention and inquiry from crucial economic, political, and social bases for sexual exploitation and inequality. The institutionalization of eroticized aggression against women takes place not merely through its depiction, but by locating and elaborating it in complex social structures....

        Imagery does not exist or gain persuasive power...

      • The Difference in Women’s Hedonic Lives: A Phenomenological Critique Feminist Legal Theory
        (pp. 162-184)
        Robin L. West

        Women’s subjective, hedonic lives are different from men’s. The quality of our suffering is different from that of men’s, as is the nature of our joy. Furthermore, and of more direct concern to feminist lawyers, the quality of pain and pleasure enjoyed or suffered by the two genders is different: women suffer more than men. The two points are related. One reason that women suffer more than men is that women often find painful the same objective event or condition that men find pleasurable. The introduction of oxyrnorons in our vocabulary, wrought by feminist victories, evidences this difference in women's...

    • 2. Prostitution

      • Introduction
        (pp. 187-198)

        Prostitution has been a longstanding topic of concern for feminists. Prostitution, like pornography, raises fundamental issues regarding the male right of access to women’s bodies and the relationships among sexuality, gender, and equality.

        Historically, feminists have espoused different views about prostitution. In the eighteenth and nineteenth centuries, as Pateman explains:

        Prostitution was seen, for example, as a necessary evil that protected young women from rape and shielded marriage and the family from the ravages of men’s sexual appetites; or as an unfortunate outcome of poverty and the economic constraints facing women who had to support themselves; or prostitution was seen...

      • Male Vice and Female Virtue: Feminism and the Politics of Prostitution in Nineteenth-Century Britain
        (pp. 199-207)
        Judith R. Walkowitz

        ... Past generations of feminists attacked prostitution, pornography, white slavery, and homosexuality as manifestations of undifferentiated male lust. These campaigns were brilliant organizing drives that stimulated grass-roots organizations and mobilized women not previously brought into the political arena. The vitality of the woman’s suffrage movement of the late nineteenth and early twentieth centuries cannot be understood without reference to the revivalistic quality of these anti-vice campaigns, which often ran parallel with the struggle for the vote. By demanding women’s right to protect their own persons against male sexual abuse and ultimately extending their critique of sexual violence to the “private”...

      • Charges Against Prostitution: An Attempt at a Philosophical Assessment
        (pp. 208-216)
        Lars O. Ericsson

        [T]his paper [undertakes] a critical assessment of the view that prostitution is an undesirable social phenomenon that ought to be eradicated....

        [Prostitution] is held to be undesirable on the ground that it constitutes an extreme instance of the inequality between the sexes. Whoredom is regardeaas displaying the male oppression of the female in its most naked form. It is contended that the relation between hooker and “John” is one of object to subject—the prostitute being reified into a mere object, a thing for the male’s pleasure, lust, and contempt. The customer-man pays to use the whore-woman and consequently has...

      • Defending Prostitution: Charges Against Ericsson
        (pp. 217-221)
        Carole Pateman

        Ericsson’s contractarian defense of prostitution¹ extends the liberal ideals of individualism, equality of opportunity, and the free market to sexual life. The real problem with prostitution, Ericsson claims, is the hypocrisy, prejudice, and punitive attitudes that surround it. Once unblinkered, we can see that prostitution is merely one service occupation among others and that, with some reforms, a morally acceptable, or “sound,” prostitution could exist. This defense has its appeal at a time when strict control of sexual conduct is again being strenuously advocated. However, Ericsson’s argument fails to overcome the general weaknesses of abstract contractarianism, and his claim that...

      • Prostitution and Civil Rights
        (pp. 222-236)
        Catharine A. MacKinnon

        The gap between the promise of civil rights and the real lives of prostitutes is an abyss which swallows up prostituted women.¹ To speak of prostitution and civil rights in one breath moves the two into one world, at once exposing and narrowing the distance between them.

        Women in prostitution are denied every imaginable civil right in every imaginable and unimaginable way,² such that it makes sense to understand prostitution as consisting in the denial of women’s humanity, no matter how humanity is defined. It is denied both through the social definition and condition of prostitutes and through the meaning...

      • The Feminist Debate over Prostitution Reform: Prostitutes’ Rights Groups, Radical Feminists, and the (Im)possibility of Consent
        (pp. 237-249)
        Jody Freeman

        This article has two purposes. The first is to identity the theoretical basis for the divergence between prostitutes’ rights groups and radical feminists over prostitution reform.¹ I will argue that the crux of the divergence is different understandings of consent and coercion. The second purpose is to argue that despite their deep differences, both groups should support decriminalization as the only acceptable short-term option....

        Women who have been, or are presently, in the sex trade disagree over many contentious issues: whether their work is chosen, whether they participate in their own oppression, and whether their economic self-interest should outweigh the...

      • A Postmodern Feminist Legal Manifesto (An Unfinished Draft)
        (pp. 250-260)
        Mary Joe Frug

        The following Commentary is an unfinished work. Professor Frug was working on this Commentary when she was murdered on April 4, 1991. ...

        Most feminists are committed to the position that however “natural” and common sex differences may seem, the differences between women and men are not biologically compelled; they are, rather, “socially constructed.” Over the past two decades this conviction has fueled many efforts to change the ways in which law produces—or socially constructs—the differences and the hierarchies between the sexes. Feminists have reasoned, for example, that when women are uneducated for “men’s work,” or when they...

      • Split at the Root: Prostitution and Feminist Discourses of Law Reform
        (pp. 261-272)
        Margaret A. Baldwin

        ... “Prostitution isn’t like anything else. Rather, everything else is like prostitution because it is the model for women’s condition.”¹ ...

        This paper attempts to begin a response to [this] insight. The fundamental inquiry I pursue is how the relationship between “prostitutes” and “other women” is given meaning in the sexual abuse of women and girls, in the legal response to that abuse, and in feminist reform strategies. In the design of existing law, in the behavior of individual men, and in the leading strategies of feminist law reform, the relationship is cast in oppositional terms: whoever a “prostitute” is,...

  5. PART II: VIOLENCE

    • 3. Battered Women

      • Introduction
        (pp. 277-295)

        Feminist interest in wife beating dates back to the first wave of feminism.¹ Nineteenth-century Victorian reformers and suffragists championed women’s right to be free from physical abuse by their husbands.² Wife beating also has longstanding roots in Anglo-American law, as explained by William Blackstone in hisCommentaries.

        The husband also (by the old law) might give his wife moderate correction. For, as he is to answer for her misbehavior, the law thought it reasonable to entrust him with this power of restraining her, by domestic chastisement, in the same moderation that a man is allowed to correct his servants or...

      • The Roots of the Battered Women’s Movement: Personal and Political
        (pp. 296-305)
        Susan Schechter

        ... The feminism which engendered the battered women’s movement was itself the product of prior influences. In the 1950s and 1960s, the civil rights, anti-war, and black liberation movements challenged the nation. Although not all women who would become feminist activists were involved directly in these struggles, the movements of the 1960s deeply affected the development of feminism. Efforts to win equality for blacks set precedents for women’s struggle for equality. As in the nineteenth century, women working against racial oppression came to question their own position-and gained political experience that would help them in building a feminist movement. ......

      • STATE v. WANROW
        (pp. 306-310)

        Yvonne Wanrow was convicted by a jury of second-degree murder and first-degree assault. She appealed her conviction to the Court of Appeals. The Court of Appeals reversed.... We granted review and affirm the Court of Appeals.

        We order a reversal of the conviction [on the ground of] error committed by the trial court in improperly instructing the jury on the law of self-defense as it related to the defendant. On the afternoon of August 11,1972, defendant’s (respondent’s) two children were staying at the home of Ms. Hooper, a friend of defendant. Defendant’s son was playing in the neighborhood and came...

      • Describing and Changing: Women’s Self-Defense Work and the Problem of Expert Testimony on Battering
        (pp. 311-326)
        Elizabeth M. Schneider

        In [recent] Years ... , many courts and commentators have been sensitized to issues of sex-bias in the law of self-defense. The overwhelming number of cases in which courts have addressed issues of women’s self-defense have involved battered women charged with killing men who battered them. The primary legal issue relating to sex-bias in the law of self-defense which courts have addressed¹ and on which public attention has focused has been the issue of admissibility of expert testimony on “battered woman syndrome.” A significant number of important legal victories have been won in the general area of what has become...

      • Women’s Experience and the Problem of Transition: Perspectives on Male Battering of Women
        (pp. 327-340)
        Christine A. Littleton

        Feminism is (or at least aspires to be) a theory and practice forged directly from women’s experience as women. It thus directly implicates our biological status (as female), our sociological status (as those who are identified as, and treated as, women) and our political status (as those who identify with women). As Catharine MacKinnon notes, the “methodological secret” of feminism is that it is built on “believing women’s accounts,”² on recognizing women’s experience as central. When applied to (or in) law, feminism becomes feminist jurisprudence. Feminist jurisprudence refuses to take legal categories or doctrines as given, and thus refuses to...

      • Legal Images of Battered Women: Redefining the Issue of Separation
        (pp. 341-362)
        Martha R. Mahoney

        ... [T]his article proposes that we seek to redefine in both law and popular culture the issue of women’s separation from violent relationships.¹ The question “why didn’t she leave?” shapes both social and legal inquiry on battering; much of the legal reliance on academic expertise on battered women has developed in order to address this question. At the moment of separation or attempted separation—for many women, the first encounter with the authority of law²—the batterer’s quest for control often becomes most acutely violent and potentially lethal.³ Ironically, although the proliferation of shelters and the elaboration of statutory structures...

      • Mapping the Margins: Intersectionality, Identity Politics, and Violence Against Women of Color
        (pp. 363-377)
        Kimberlé Crenshaw

        ... My objective [is to explore] the race and gender dimensions of violence against women of color. ... I consider how the experiences of women of color are frequently the product of intersecting patterns of racism and sexism....

        [Based on] a brief field study of battered women’s shelters located in minority communities in Los Angeles,¹ [I found that in most cases], the physical assault that leads women to these shelters is merely the most immediate manifestation of the subordination they experience. Many women who seek protection are unemployed or underemployed, and a good number of them are poor. Shelters serving...

      • Lavender Bruises: Intra-Lesbian Violence, Law and Lesbian Legal Theory
        (pp. 378-387)
        Ruthann Robson

        ... Intra-lesbian violence is not a new phenomenon, although the legal reaction it has provoked has at times penalized lesbian sexuality rather than violence. A 1721 German trial transcript, for example, documents intra-lesbian violence: the “two women did not get along. Because the codefendant complained that she did not earn anything, the defendant beat her frequently.”¹ However, it was not the violent expressions that prompted judicial intervention, but the sexual ones. The women were on trial for the crime of lesbianism. Found guilty, the defendant Catharina Linck was sentenced to death. The codefendant Catharina Mühlhahn received the lesser sentence of...

      • The Violence of Privacy
        (pp. 388-402)
        Elizabeth M. Schneider

        ... This essay explores the ways in which concepts of privacy permit, encourage, and reinforce violence against women, focusing on the complex interrelationship between notions of “public” and “private” in our social understandings of woman-abuse.¹ Historically, male battering of women was untouched by law, protected as part of the private sphere of family life. Over the last twenty years, however, as the battered women’s movement in this country has made issues of battering visible, battering is no longer perceived as a purely “private” problem and has taken on dimensions of a “public” issue. There has been an explosion of legal...

    • 4. Rape

      • Introduction
        (pp. 405-421)

        Feminist concern with rape emerged early in the women’s movement.¹ Although the feminist agenda was first dominated by other issues (employment discrimination, passage of the Equal Rights Amendment, abortion),² attention soon focused on male sexual violence toward women.³ Early feminists’ views on rape reflected a singular consensus:

        Within the women’s movement ... rape in the early 1970s wasthefeminist issue. It symbolized women’s unique vulnerability to attack from men at any time and an attack involving a fundamental violation of their physical and sexual being. Unlike other issues at the time, such as prostitution or abortion, rape had the...

      • Rape: The All-American Crime
        (pp. 422-430)
        Susan Griffin

        I have never been free of the fear of rape. From a very early age I, like most women, have thought of rape as part of my natural environment—something to be feared and prayed against like fire or lightning. I never asked why men raped; I simply thought it one of the many mysteries of human nature.

        . . . I was never certain why the victims were always women ... but I did guess that the world was not a safe place for women. I observed that my grandmother was meticulous about locks, and quick to draw the...

      • Rape
        (pp. 431-454)
        Susan Estrich

        Eleven years ago, a man held an ice pick to my throat and said: “Push over, shut up, or I’ll kill you.” I did what he said, but I couldn’t stop crying. A hundred years later, I jumped out of my car as he drove away.

        I ended up in the back seat of a police car. I told the two officers I had been raped by a man who came up to the car door as I was getting out in my own parking lot (and trying to balance two bags of groceries and kick the car door open)....

      • MICHAEL M. v. SUPERIOR COURT
        (pp. 455-459)

        Justice REHNQUIST announced the judgment of the Court and delivered an opinion, in which THE CHIEF JUSTICE, justice STEWART, and justice POWELL joined.

        The question presented in this case is whether California’s “statutory rape” law, §261.5 of the Cal. Penal Code Ann. (West Supp. 1981), violates the Equal Protection Clause of the Fourteenth Amendment. Section 261.5 defines unlawful sexual intercourse as “an act of sexual intercourse accomplished with a female not the wife of the perpetrator, where the female is under the age of 18 years.” The statute thus makes men alone criminally liable for the act of sexual intercourse....

      • Statutory Rape: A Feminist Critique of Rights Analysis
        (pp. 460-470)
        Frances Olsen

        ... Statutory rape laws provide a concrete example of the advantages and disadvantages of rights analysis. These laws pose a classic political dilemma for feminists. On one hand, they protect females; like laws against rape, incest, child molestation, and child marriage, statutory rape laws are a statement of social disapproval of certain forms of exploitation. To some extent they reduce abuse and victimization. On the other hand, statutory rape laws restrict the sexual activity of young women and reinforce the double standard of sexual morality.¹ The laws both protect and undermine women’s rights, and rights arguments can be used to...

      • Rape: On Coercion and Consent
        (pp. 471-483)
        Catharine A. MacKinnon

        If sexuality is central to women’s definition and forced sex is central to sexuality, rape is indigenous, not exceptional, to women’s social condition. In feminist analysis, a rape is not an isolated event or moral transgression or individual interchange gone wrong but an act of terrorism and torture within a systemic context of group subjection, like lynching. The fact that the state calls rape a crime opens an inquiry into the state’s treatment of rape as an index to its stance on the status of the sexes.

        Under law, rape is a sex crime that is not regarded as a...

      • Date Rape: A Feminist Analysis
        (pp. 484-494)
        Lois Pineau

        ... Date rape is nonaggravated sexual assault, nonconsensual sex that does not involve physical injury, or the explicit threat of physical injury. But because it does not involve physical injury, and because physical injury is often the only criterion that is accepted as evidence that theactus reasis nonconsensual, what is really sexual assault is often mistaken for seduction. The replacement of the old rape laws with the new laws on sexual assault have done nothing to resolve this problem....

        . . . A woman on a casual date with a virtual stranger has almost no chance of bringing...

      • Rape, Racism, and the Law
        (pp. 495-510)
        Jennifer Wriggins

        ... There are many different kinds of rape.¹ Its victims are of all races, and its perpetrators are of all races. Yet the kind of rape that has been treated most seriously throughout this nation’s history has been the illegal forcible rape of a white woman by a Black man. The selective acknowledgement of Black accused/white victim rape was especially pronounced during slavery and through the first half of the twentieth century. Today a powerful legacy remains that permeates thought about rape and race.

        During the slavery period, statutes in many jurisdictions provided the death penalty or castration for rape...

      • Equality Theory, Marital Rape, and the Promise of the Fourteenth Amendment
        (pp. 511-528)
        Robin West

        During the 1980s a handful of state judges either held or opined in dicta what must be uncontrovertible to the feminist community, as well as to most progressive legal advocates and academics: the so-called marital rape exemption, whether statutory or common law in origin, constitutes a denial of a married woman’s constitutional right to equal protection under the law.¹ Indeed, a more obvious denial of equal protection is difficult to imagine: the marital rape exemption denies married women protection against violent crime solely on the basis of gender and marital status....

        [T]hat a number of feminist commentators² and a few...

  6. PART III: EMPLOYMENT

    • 5. Employment

      • A. The Work-Family Conflict, Occupational Segregation, and Comparable Worth

        • Introduction
          (pp. 533-548)

          Feminists in both the first and the second waves of feminism have been concerned with ameliorating women’s work life. In the nineteenth century feminists worked to improve conditions for women factory workers, to secure equal pay, and to permit married women to retain their earnings.

          From 1868 to 1870, Elizabeth Cady Stanton and Susan B. Anthony advocated reform of women’s working conditions in their journalThe Revolution.¹ Sarah Grimke deplored the fact that women failed to receive equal pay.² Among the “grievances” listed in the Declaration of Sentiments, authored by Elizabeth Cady Stanton and others, were married women’s common law...

        • Work and Family: The Gender Paradox and the Limitations of Discrimination Analysis in Restructuring the Workplace
          (pp. 549-570)
          Nancy E. Dowd

          Talk about work and family is assumed to be women’s talk. It is talk about women’s lives, our feelings. Talk about work and family is tied to women’s entry into the workforce and the concomitant redefinition of ourselves and our roles. It is also talk about responsibility and conflict, the conflict between work and family....

          But talk about work and family ought not to be assumed to be only women’s talk. Men are harmed and affected by the existing work-family structure....

          Moreover, if we accept the circumscription of “women’s talk,” we not only limit our perspective, but also obscure the...

        • EEOC v. SEARS, ROEBUCK & CO.
          (pp. 571-584)

          This opinion [of the U.S. District Court for the Northern District of Illinois] marks the culmination of a lengthy dispute between the Equal Employment Opportunity Commission (“EEOC”) and Sears, Roebuck & Co. (“Sears”), the world’s largest retail seller of general merchandise.... After an extensive investigation and extensive conciliation discussions, EEOC filed this suit in 1979, alleging nationwide discrimination by Sears against women in virtually all aspects of its business, in violation of Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. §2000e et seq.

          The ... allegations EEOC sought to prove at trial were that Sears...

        • EEOC v. Sears, Roebuck & Co. (Appellate Opinion)
          (pp. 585-593)

          These appeals [to the United States Court of Appeals, Seventh Circuit] are the outgrowth of protracted litigation stemming from an EEOC commissioner’s charge filed against Sears, Roebuck & Company. [T]he EEOC sought to prove that Sears engaged in a nationwide pattern or practice of discrimination against women from March 3, 1973, to December 31, 1980, by failing to hire and promote females into commission sales positions on the same basis as males and by paying female checklist management employees less than similarly situated male employees. The district court on January 31, 1986, held for Sears on all claims. [The EEOC...

        • Equal Employment Opportunity Commission v. Sears, Roebuck & Company: A Personal Account
          (pp. 594-610)
          Alice Kessler-Harris

          The case exploded into my life in early September of 1984. Had I heard of the suit against Sears, Roebuck, said the lawyer for the Equal Employment Opportunity Commission on the telephone? Did I know that it was the last of the class action cases and that Sears was the largest employer of women outside the federal government? Discrimination, retail sales, a female work force—would I be willing to testify for the EEOC? But why, I asked, confusedly processing bits of information, do you need a historian to testify? “Well, they’ve got one,” came the answer, “and we want...

        • Deconstructing Equality-Versus-Difference: Or, the Uses of Poststructuralist Theory for Feminism
          (pp. 611-623)
          Joan W. Scott

          That feminism needs theory goes without saying.... We need theory that can analyze the workings of patriarchy in all its manifestations—ideological, institutional, organizational, subjective—accounting not only for continuities but also for change over time. We need theory that will let us think in terms of pluralities and diversities rather than of unities and universals. We need theory that will break the conceptual hold, at least, of those long traditions of (Western) philosophy that have systematically and repeatedly construed the world hierarchically in terms of masculine universals and feminine specificities. We need theory that will enable us to articulate...

        • Deconstructing Gender
          (pp. 624-635)
          Joan C. Williams

          IN EEOC v. Sears, Roebuck & CO.,¹ Sears argued successfully that women were underrepresented in its relatively high-paying commission sales positions not because Sears had discriminated against them, but because women lacked “interest” in commission sales. Sears used the language of relational feminism to support its core argument that women’s focus on relationships at home and at work makes them choose to sacrifice worldly advancement in favor of a supportive work environment and limited hours that accommodate their devotion to family.² [Williams uses the termrelational feminismto describe the view put forth by Carol Gilligan, Suzanne Lebsock, and others:...

        • Telling Stories about Women and Work: Judicial Interpretations of Sex Segregation in the Workplace in Title VII Cases Raising the Lack of Interest Argument
          (pp. 636-663)
          Vicki Schultz

          How do we make sense of that most basic feature of the world of work, sex segregation on the job? ... Social science research has documented, and casual observation confirmed, that men work mostly with men, doing “men’s work,” and women work mostly with women, doing “women’s work.”¹ We know also the serious negative consequences segregation has for women workers. Work traditionally done by women has lower wages, less status, and fewer opportunities for advancement than work done by men. Despite this shared knowledge, however, we remain deeply divided in our attitudes toward sex segregation on the job. What divides...

        • Feminizing Unions: Challenging the Gendered Structure of Wage Labor
          (pp. 664-682)
          Marion G. Crain

          Feminist scholars in increasing numbers are calling for a feminist agenda that challenges directly the economic, social, and political power imbalance between women and men....

          . . . I argue that labor unions can be an effective, central tool in a feminist agenda targeting the gendered structure ofwage labor. Collective action is the most powerful and expedient route to female empowerment; further, it is the only feasible means of transforming our deeply gendered market and family structure. Others have laid the groundwork by showing how existing individual-model challenges have been unable to accomplish such broad-based reform.¹ I begin where they...

        • Comparable Worth and Its Impact on Black Women
          (pp. 683-696)
          Julianne Malveaux

          ... Comparable worth is an issue that has maintained a high place on the “women’s agenda” for social and economic equity since 1980, when then EEOC Director Eleanor Holmes Norton described it as “the civil rights issue of the 1980’s.”¹ Given its visibility, it is amazing that little research has focused on the ramifications of comparable worth in the black community, or on the implications of comparable worth for black women. In fact, there seems to be an assumption that because comparable worth is on the “women’s agenda” it will have uniform impacts on black and white women. Or, alternatively,...

        • Barriers Facing Women in the Wage-Labor Market and the Need for Additional Remedies: A Reply to Fischel and Lazear
          (pp. 697-709)
          Mary E. Becker

          Fischel and Lazear [in their critique ofcomparable worth]¹ perceive a world in which women’s jobs pay less than men’s jobs either because women face barriers to entry into male occupations or because women choose jobs that pay less. They believe that barriers to entry can effectively be eliminated by direct remedies, especially Title VII and the Equal Pay Act. Were these perceptions shared by all, comparable worth would not be the hot issue it is today.

          Fischel and Lazear suggest that women may “choose” lower paying, more flexible, less skilled, jobs because of their specialization in non-wage labor.² Although this...

        • Social Construction of Skill: Gender, Power, and Comparable Worth
          (pp. 710-724)
          Ronnie J. Steinberg

          ... Prior to comparable worth, the wage gap was viewed largely as the result of some combination of inadequate human capital on the part ofwomen and of labor market discrimination. Most economists viewed discrimination as a problem ofaccess —of barriers that either blocked appropriately trained women from entering more complex malejobs or blocked women from obtaining the skills needed to qualify for these jobs.¹ Wage determination was not viewed as distorted but as subject to economic forces. A few economists did stress the role of “market power” as a catchall for empirical outcomes that couldn't be accounted for by economic...

      • B. Sexual Harassment

        • Introduction
          (pp. 725-739)

          Despite the increase in the proportion of women in the labor force, women workers continue to face significant problems in the workplace. One gender-specific problem is sexual harassment.¹ Studies suggest that between 40 percent to 80 percent of working women have experienced some form of sexual harassment.² Many feminists currently regard sexual harassment as a form of violence similar to rape and battering.³

          Sexual harassment in employment poses a serious barrier to women’s equality. As writer Lin Farley notes:

          [J]ob segregation by sex is to a large degree sustained by male sexual harassment. This abuse is already rolling back the...

        • MERITOR SAVINGS BANK v. VINSON
          (pp. 740-748)

          Justice REHNQUIST delivered the opinion of the Court.

          This case presents important questions concerning claims of workplace “sexual harassment” brought under Title VII of the Civil Rights Act of 1964....

          In 1974, respondent Mechelle Vinson met Sidney Taylor, a vice president of what is now petitioner Meritor Savings Bank (bank) and manager of one of its branch offices. When respondent asked whether she might obtain employment at the bank, Taylor gave her an application, which she completed and returned the next day; later that same day Taylor called her to say that she had been hired. With Taylor as her...

        • ELLISON v. BRADY
          (pp. 749-754)

          . . . Kerry Ellison worked as a revenue agent for the Internal Revenue Service in San Mateo, California. During her initial training in 1984 she met Sterling Gray, another trainee, who was also assigned to the San Mateo office. The two co-workers never became friends, and they did not work closely together.

          Gray’s desk was twenty feet from Ellison’s desk, two rows behind and one row over. Revenue agents in the San Mateo office often went to lunch in groups. InJune of 1986 when no one else was in the office, Gray asked Ellison to lunch. She accepted. Gray...

        • Sex at Work
          (pp. 755-778)
          Susan Estrich

          During the 1970s and 1980s, rape law reform occupied a prominent place on the agendas of feminist organizations across the country. It was said by many, and with good reason, that the history of rape law was a history of both sexism and racism; that too often the victim was victimized a second time by a legal system which focused more on determining her fault than the man’s.... All of these criticisms were voiced loudly; all were largely true. And, unfortunately, they still are.

          This is not to say that feminist law reformers lacked the ability or skill to change...

        • “What’s the Big Deal?” Women in the New York City Construction Industry and Sexual Harassment Law, 1970–1985
          (pp. 779-796)
          Elvia R. Arriola

          The recent history of women’s participation in the New York City construction industry provides historians and lawyers with an opportunity to broaden their perspectives on gender as a tool for social and legal historical analysis.¹ At the same time, it offers the opportunity to assess the effectiveness of the legal system as a tool for social change....²

          [T]he emergence of a “sexual harassment” law in the 1970s was a significant accomplishment. Any assessment of this law’s place in history must ask, however, not only if the law enhanced the body of women’s legal rights, but also if it actually improved...

        • Employer Abuse, Worker Resistance, and the Tort of Intentional Infliction of Emotional Distress
          (pp. 797-807)
          Regina Austin

          The conventional wisdom is that, in the workplace, abuse can be a legitimate instrument of worker control and an appropriate form of discipline.¹ By “abuse” I mean treatment that is intentionally emotionally painful, offensive, or insulting....

          It is generally assumed that employers and employees alike agree that some amount of such abuse is a perfectly natural, necessary, and defensible prerogative of superior rank. It assures obedience to command. Bosses do occasionally overstep the bounds of what is considered reasonable supervision, but, apart from contractually based understandings² and statutory entitlements to protection from harassment, there are few objective standards of “civility”...

        • Feminist Constructions of Objectivity: Multiple Perspectives on Sexual and Racial Harassment Litigation
          (pp. 808-825)
          Martha Chamallas

          In a variety of disciplines, feminist and postmodem scholars have changed the face of their fields by their persistence in investigating the relationship between knowledge and power.¹ There is now a rich body of scholarship demonstrating how particular views of the world come to dominate discourse, how our “knowledge” is far less diverse than our people. A central feature of these new critical inquiries is their skepticism about claims of “objectivity” and “neutrality” and about statements that purport to have “universal” applicability.² The take-home message of much of this work is that frequently what passes for the whole truth is...

        • Whose Story Is It, Anyway? Feminist and Antiracist Appropriations of Anita Hill
          (pp. 826-844)
          Kimberle Crenshaw

          As television, the Clarence Thomas/Anita Hill hearings played beautifully as an episode right out of “The Twilight Zone.” Stunned by the drama’s mystifying images, its misplaced pairings, and its baffling contradictions, viewers found themselves in a parallel universe where political allegiances barely imaginable a moment earlier sprang to life: an administration that won an election through the shameless exploitation of the mythic black rapist took the offensive against stereotypes about black male sexuality; a political party that had been the refuge of white resentment won the support, however momentary, of the majority of Mrican Americans; a black neoconservative individualist whose...

        • Exit: Power and the Idea of Leaving in Love, Work, and the Confirmation Hearings
          (pp. 845-860)
          Martha R. Mahoney

          Exit—the door with the glowing red sign—marks the road not taken that proves we chose our path. Prevailing ideology in both law and popular culture holds that people are independent and autonomous units, free to leave any situation at any time, and that what happens to us is therefore in some measure the product of our choice. When women are harmed in love or work, the idea of exit becomes central to the social and legal dialogue in which our experience is processed, reduced, reconstructed and dismissed. Exit is so powerful an image that it can be used...

  7. PART IV: REPRODUCTION

    • 6. Motherhood and Reproductive Control

      • A. Motherhood

        • Introduction
          (pp. 865-873)

          Motherhood has occupied a central place in feminist practice and theory.¹ From its beginnings, the women’s liberation political agenda targeted the problems faced by working mothers. At the second annual conference of the National Organization for Women in 1967, feminists advocated the establishment of daycare cen ters in the belief that government-subsidized childcare was necessary in the fight for equality.² Continuing the battle during the 1970s, feminists allied with church groups, unions, civil rights organizations, and child welfare advocates to promote legislation.

          Many believed that the right kind of child care could reshape the society.... Liberals and feminists believed that...

        • M Is for the Many Things
          (pp. 874-881)
          Carol Sanger

          Motherhood is at present and at last academically fashionable. With few exceptions such as Adrienne Rich’sOf Woman Bornin 1976, motherhood’s neglect in curricula and scholarship mirrored its uneasy reception by feminists in general. The identification of motherhood as a source of subordination led early feminists to direct their energies toward creating social structures less encumbered by maternal obligation. Thus, feminist politics aimed at such reforms as increasing access to abortion, child care, property, education andjobs. Distancing women from motherhood seemed the key to a better life. More recently, however, the problems of mothers themselves (or at least the...

        • Punishing Drug Addicts Who Have Babies: Women of Color, Equality, and the Right of Privacy
          (pp. 882-894)
          Dorothy E. Roberts

          In July 1989, jennifer Clarise johnson, a twenty-three-year-old crack addict, became the first woman in the United States to be criminally convicted for exposing her baby to drugs while pregnant.² Florida law enforcement officials chargedjohnson with two counts of delivering a controlled substance to a minor after her two children tested positive for cocaine at birth. Because the relevant Florida drug law did not apply to fetuses, the prosecution invented a novel interpretation of the statute. The prosecution obtained johnson’s conviction for passing a cocaine metabolite from her body to her newborn infants during the sixty-second period after birth and...

        • The Colonization of the Womb
          (pp. 895-907)
          Nancy Ehrenreich

          [This essay focuses] on instances offorced medical treatment during pregnancy (especially Cesarean sections),¹ ... It is impossible to fully understand why courts have been willing to coercively intervene in certain women’s reproductive lives without understanding such cases as power struggles-struggles over the control of reproduction and the meaning of motherhood....

          ... Several studies have found that poor women ofcolor receive different treatment at the hands of medical professionals than do privileged European-American women, and that that treatment is associated with negative stereotypes about such women.² Sociologist Alexandra Dundas Todd, in her study of interactions between gynecologists and women patients, found...

        • Sapphire Bound!
          (pp. 908-915)
          Regina Austin

          ... I grew up thinking that “Sapphire” was merely a character on the Amos ‘n’ Andy program, a figment of a white man’s racist/sexist comic imagination.¹ Little did I suspect that Sapphire was a more generally employed appellation for the stereotypical Black Bitch-tough, domineering, emasculating, strident, and shrill.²... We really cannot function effectively without coming to terms with Sapphire....

          The task of articulating and advancing distinctive minority feminist jurisprudential stances will become easier as those of us interested in the status of minority women begin to analyze concrete cases and legal problems. To substantiate my point that a black feminist...

        • Child Abuse: A Problem for Feminist Theory
          (pp. 916-930)
          Marie Ashe and Naomi R. Cahn

          A broad professional and popular awareness of the disturbing and not uncommon reality of child abuse has developed during the past two decades. Responses in legislation and the legal process reflect this awareness. Prosecution of child abuse has greatly accelerated; children’s accounts of sexual abuse and other forms of abuse are now recognized as deserving credence; and procedural accommodations have been instituted in manyjurisdictions to aid child victims in telling their stories. Increased awareness of child abuse has been accompanied by popular reactions of outrage and horror and by Widespread condemnation of its perpetrators.

          The accounts of child abuse delivered...

      • B. Abortion

        • Introduction
          (pp. 931-952)

          Social control of women’s reproductive capacity has been a central concern of the women’s movement. Framing the issue as women’s right “to control their own bodies,”¹ feminists today regard reproductive control as a prerequisite to personal and political empowerment.² In contrast, abortion rights were not a concern of nineteenthcentury feminists, who worried instead about death from childbirth.³ This distinguishes abortion from other feminist concerns (such as battering, prostitution, and employment) which are shared by historical and contemporary feminists.

          By 1970 abortion was gaining prominence as a feminist issue. Feminists advocated access to safe and legal abortion and condemned the disproportionate...

        • ROE v. WADE
          (pp. 953-961)

          Mr. Justice BLACKMUN delivered the opinion of the Court.

          This Texas federal appeal and its Georgia companion, Doe v. Bolton, 410 U.S. 179, present constitutional challenges to state criminal abortion legislation....

          We forthwith acknowledge our awareness of the sensitive and emotional nature of the abortion controversy, of the vigorous opposing views, even among physicians, and of the deep and seemingly absolute convictions that the subject inspires. One’s philosophy, one’s experiences, one’s exposure to the raw edges of human existence, one’s religious training, one’s attitudes toward life and family and their values, and the moral standards one establishes and seeks to...

        • The Struggle for Reproductive Freedom: Three Stages of Feminism
          (pp. 962-970)
          Linda Gordon

          ... The struggle for birth control which emerged in the nineteenth century ... was part ofa feminist movement, challenging the subordination of women in sexuality particularly and in the family and society generally. From then on, the birth control movement, even when organizationally autonomous, has always reflected the historical strength and development of feminism.

          In the last hundred years there have been three stages in the sexual ideology of the feminists, each of which strongly affected the struggle for reproductive freedom. First, from the mid-nineteenth century to the 1890s, the feminists of the suffrage movement adhered to a sexual ideal...

        • A Defense of Abortion
          (pp. 971-984)
          Judith Jarvis Thomson

          Most opposition to abortion relies on the premise that the fetus is a human being, a person, from the moment of conception. The premise is argued for; but, as I think, not well. Take, for example, the most common argument. We are asked to notice that the development of a human being from conception through birth into childhood is continuous; then it is said that to draw a line, to choose a point in this development and say “before this point the thing is not a person, after this point it is a person” is to make an arbitrary choice,...

        • Privacy v. Equality: Beyond Roe v. Wade
          (pp. 985-994)
          Catharine A. MacKinnon

          Roe v. Wade¹ guaranteed the right to choose abortion, subject to some countervailing considerations, by conceiving it as a private choice, included in the constitutional right to privacy. In this critique of that decision, I first situate abortion and the abortion right in the experience of women. The argument is that abortion is inextricable from sexuality, assuming that the feminist analysis of sexuality is our analysis of gender inequality. I then criticize the doctrinal choice to pursue the abortion right under the law of privacy. The argument is that privacy doctrine reaffirms and reinforces what the feminist critique of sexuality...

        • Reasoning from the Body: A Historical Perspective on Abortion Regulation and Questions of Equal Protection
          (pp. 995-1006)
          Reva Siegel

          [T]here are serious constitutional concerns presented by abortion-restrictive regulation that [Roe v. Wade] does not address. Restricting women’s access to abortion implicates constitutional values of equality as well as privacy.... A growing number of commentators have begun to address abortion regulation as an issue of sexual equality,¹ articulating concerns scarcely recognized in prevailing accounts of abortion as a right of privacy. Properly understood, constitutional limitations on antiabortion laws, like constitutional limitations on antimiscegenation laws, have moorings in both privacy and equal protection.

          There are, however, substantial impediments to analyzing abortion-restrictive regulation in an equal protection framework, which few proponents of...

        • Reproductive Laws, Women of Color, and Low-Income Women
          (pp. 1007-1018)
          Laurie Nsiah-Jefferson

          Reproductive rights, like other rights, are not just a matter of abstract theory. How these rights can be exercised and which segments of the population will be allowed to exercise them must be considered in light of existing social and economic conditions. Therefore, concerns about the effects of race, sex, and poverty, as well as law and technology must be actively integrated into all work and discussions addressing reproductive health policy.

          . . . Many, though not all, women of color are poor. Women of color are not all one group, just as women of color and poor women are...

        • An Equal Protection Analysis of U.S. Reproductive Health Policy: Gender, Race, Age, and Class
          (pp. 1019-1031)
          Ruth Colker

          The purpose of this essay is to bring an “anti-essentialist” and “reproductive health” perspective to the public policy debate concerning pregnancy-related regulations, including, but not limited to, abortion regulations....

          [T]he abortion debate, as reflected in both pro-choice and pro-life writings, has often been overly superficial and general in its description ofhow women are affected by various reproductive choices,¹ thereby suffering from a problem of essentialism. The variables of race, age, sexual orientation, handicap, religion, and social class affect how various reproductive decisions influence women’s lives. Nevertheless, the abortion debate tends to focus on all “women” as if they are a...

        • Reproductive Freedom and Violence Against Women: Where Are the Intersections?
          (pp. 1032-1040)
          Lori L. Heise

          ... Gender violence is a major yet often underrecognized obstacle to reproductive choice. In both the abortion rights movement in the United States and the reproductive health movement globally, the “enemy” of self-determination and choice is usually seen as imposing from the top down. In industrial countries, it is the government—through the courts, the legislature, and bureaucratic rulemaking—that threatens to “take away” women’s reproductive autonomy. The image is one of the public sphere invading that which is private—of the state interfering with a woman's right to control her own body.

          In developing countries, activism has focused on...

      • C. Reproductive Technology and Adoption

        • Introduction
          (pp. 1041-1062)

          The issue of women’s reproductive freedom currently centers on the new reproductive technologies.¹ Primary among these arein vitrofertilization (IVF), embryo transplants, and surrogate motherhood. Several social conditions contributed to the development and use of these technologies: an increase in infertility resulting from delayed childbearing, harmful contraceptive methods, and pelvic inflammatory disease; and the shortage of infants for adoption.² Whereas feminist concern with reproductive control formerly focused on the means to prevent reproduction (contraception and abortion), contemporary concerns address the means to facilitate reproduction.³

          Many feminists oppose such technology. The vehemence of their opposition is all the more surprising...

        • IN THE MATTER OF BABY M.
          (pp. 1063-1079)

          In this matter the Court is asked to determine the validity of a contract that purports to provide a new way of bringing children into a family. For a fee of $10,000, a woman agrees to be artificially inseminated with the semen of another woman’s husband; she is to conceive a child, carry it to term, and after its birth surrender it to the natural father and his wife. The intent of the contract is that the child's natural mother will thereafter be forever separated from her child. The wife is to adopt the child, and she and the natural...

        • Society’s Response to the New Reproductive Technologies: The Feminist Perspective
          (pp. 1080-1091)
          Norma Juliet Wikler

          The social role of women has been and continues to be primarily defined by the biological fact that only the female of our species can become pregnant. Although both men and women participate in human reproduction, the tasks of bearing and raising children are commonly considered women’s jobs. Thus, when there are changes on the horizon in the area of reproductive technology, women are bound to be interested. Feminists, who base much of their critique ofexisting institutions on the claim that the social context of reproduction has been disadvantageous to women, are understandably concerned that the new developments will similarly...

        • Surrogate Motherhood: The Challenge for Feminists
          (pp. 1092-1104)
          Lori B. Andrews

          Surrogate motherhood presents an enormous challenge for feminists. During the course of theBally Mtrial, the New Jersey chapter of the National Organization of Women met and could not reach consensus on the issue. “The feelings ranged the gamut,” the head of the chapter, Linda Bowker, told theNew York Times.“We did feel that it should not be made illegal, because we don’t want to turn women into criminals. But other than that, what you may feel about theBally Mcase may not be what you feel about another.”

          “We do believe that women ought to control...

        • The Ethics and Economics of Enforcing Contracts of Surrogate Motherhood
          (pp. 1105-1111)
          Richard A. Posner

          Mytopic is surrogate motherhood,¹ and specifically the issue—the central issue in the controversy over surrogacy—whether contracts of surrogate motherhood, that is contracts whereby a woman agrees, in exchange for money, to become impregnated through artificial insemination and to give up the newly born child to the father, should be legally enforceable, whether by damages or specific performance. I shall not consider whether such contractsareenforceable under existing law, nor the intricate legal questions that such contracts even when enforceable could be expected to raise,² but whether theyshouldbe enforceable. To this question of policy, issues of...

        • Junk Liberty
          (pp. 1112-1116)
          Gena Corea

          We hear lots of high-minded talk about “rights” and “liberty” from the defenders of the human breeding industry. It’s a man’s right to exercise his constitutionally protected and newly invented “procreative liberty” to hire a woman to bear a child for him. It’s a woman's right to sell her body if she so chooses.

          We are repeatedly told that legalizing the sale ofwomen protects the freedom our forefathers died for.

          Gary Skoloff, attorney to William Stern in theBally M.¹ surrogacy case, is one of the many new single-issue defenders of women’s liberation.

          “If you prevent women from becoming surrogate...

        • The Socio-Economic Struggle for Equality: The Black Surrogate Mother
          (pp. 1117-1125)
          Anita L. Allen

          ... The American slave experience, while not equivalent to surrogacy, can help illuminate why many people find the practice of commercial surrogacy disturbing. Before the American Civil War, virtually all southern Black mothers were, in a sense, surrogate mothers. Slave women knowingly gave birth to children with the understanding that those children would be owned by others.¹ Occasionally, however, a Black woman was able to get back her child. Previously,² I related the true story of Polly, a Black woman who was kidnapped from her home in Illinois and sold into slavery in Missouri.³ Polly brought and prevailed in two...

        • Market-Inalienability
          (pp. 1126-1148)
          Margaret Jane Radin

          Since the declaration of “unalienable rights” of persons at the founding of our republic,¹ inalienability has had a central place in our legal and moral culture. Yet there is no one sharp meaning for the term “inalienable.” Sometimes inalienable means nontransferable; sometimes only nonsalable. Sometimes inalienable means nonrelinquishable by a rightholder; sometimes it refers to rights that cannot be lost at all. In this essay I explore nonsalability, a species of inalienability I call market-inalienability. Something that is market-inalienable is not to be sold, which in our economic system means it is not to be traded in the market. ......

        • A Feminist Analysis of Adoption
          (pp. 1149-1166)
          Nancy E. Dowd

          ... Adoption has received relatively little attention from feminists.¹ Yet it touches many areas of feminist concern: reproductive choice and reproductive technologies, including abortion and surrogacy; definitions and concepts offamily; parental rights and roles; gay and lesbian rights; the intersection of gender, race, and class; gender roles (even though criticized as essentialist); issues of sameness and difference; choice and the contexts in which women’s choices are made; and the valuing and devaluing of mothering and nurturance. There may well be, then, not simply “a” feminist analysis of adoption, but multiple analyses of adoption from the range of feminist thought.

          In...

  8. TABLE OF CASES
    (pp. 1167-1170)
  9. INDEX
    (pp. 1171-1182)
  10. CONTRIBUTORS
    (pp. 1183-1185)
  11. Back Matter
    (pp. 1186-1186)