The Body Politic: Representation and Reproductive Feminist Jurisprudence
Michele Goodwin

This essay is presented in remembrance of Justice Ruth Bader Ginsburg. Originally published September 19, 2021. Updated September 21, 2021. © 2021 by The University of Chicago. All rights reserved.

Preface – Added September 21, 2021

On the one-year anniversary of Justice Ruth Bader Ginsburg’s passing, the threats to reproductive health, rights, and justice can no longer be ignored or disregarded as overstated concerns, particularly in the wake of laws enacted in states such as Texas, Mississippi, and others that strip away the ability to terminate a pregnancy even in instances of rape and incest.  She would likely be mortified by the Texas abortion law, SB8, that prohibits abortions after six weeks of pregnancy with no exceptions for rape or incest and that deputizes citizens to enforce that law rather than an officer of the state.  She would recognize the perversity of the provision that allows for citizens to sue individuals who aid and abet in a pregnancy termination and collect a bounty.  It reminds me of Fugitive Slave Acts.  Would she see the same, especially given the disparate policing and surveillance of Black women?

Like fellow Justices Sonia Sotomayor and Elena Kagan—who wrote dissents in Whole Woman’s Health v. Jackson, the recent Supreme Court decision allowing the law to stand—she would recognize the law as a horrific abridgment of the right to an abortion as secured by Roe v. Wade.  She would note the decision effectively guts the reach of Planned Parenthood v. Casey for women in Texas. Given her sharp concurrence in Whole Woman’s Health v. Hellerstedt, which in 2016 struck down two Texas provisions undermining abortion rights, she might remind the Court as she did in that case, “When a State severely limits access to safe and legal procedures, women in desperate circumstances may resort to unlicensed rogue practitioners, faute de mieux, at great risk to their health and safety.”

Finally, like Justice Sotomayor, it would not be a stretch for her to find that the deputization of citizens to surveil and report on their neighbors has a chilling effect on the right to terminate a pregnancy.   I think she would take significant issue with the bounty Texas now places on the head of anyone who renders aid or support to a woman or person who is pregnant, including the incentive of having any attorneys’ fees paid.   I am doubtful that she would be silent in the face of such horrific attacks on reproductive rights.  I would like to think that she would be scrutinous and gravely concerned about what the Texas law means for democracy, especially in light of concurrent attacks on voting rights in that state.  Finally, she might reserve her most serious misgivings for the Supreme Court itself—its failed commitment to protecting women’s rights (which even preceded the Texas law) and what the 5-4 unsigned opinion means for its true commitment to safeguarding of the rule of law.

---

In Memoriam

This essay draws upon my writings from the past decade to articulate the importance of a feminist lens in law and to underscore the urgency of feminist jurisprudence, especially in reproductive health, rights, and justice.  Its timing arrives at a moment of attacks on reproductive rights in the form of antiabortion legislation, rollbacks on sex education in schools, contestation against contraception, and even legislation threatening the criminal punishment of doctors who perform abortions and pregnant women and trans men who receive them.  It is also a time of national loss and deep, personal reflection. Sue Ellen Allen, a dear friend and monumental champion for criminal justice reform, recently died.  Sue Ellen, formerly incarcerated, wrote in penetrating detail in her memoir and numerous commentaries about the cruel conditions experienced by incarcerated women in America’s prisons and jails.[i] Many of these women are mothers, and some give birth while incarcerated in the most dire conditions.

Before meeting Sue Ellen, I wrote about women giving birth in prison toilets.  On bare, cold concrete floors in prisons without medical aid.  And cases of women dragged out of hospitals—shackled and chained—in bloodied gowns to the police cars that awaited them.  My book, Policing The Womb: Invisible Women and the Criminalization of Motherhood, even chronicles how medical providers have become the euphemistic “snitches” against their pregnant patients.[ii] The people most targeted and harmed by these practices are Black and Brown women.

In Sue Ellen’s case, she experienced a double mastectomy behind bars, while shackled and chained. Sue Ellen told me that the people who saved her life were not the guards, wardens, or even medical officials assigned to treat her. Instead, her fellow incarcerated women looked out for her, shared their food, checked on her, and made the pillow she needed, which was prescribed but denied by prison officials. They made it out of their large, prison-issued sanitary napkins.

Sue Ellen wrote about the grave inhumanity in the way guards dispensed their violence. She informed readers about the threats of physical punishments, and the dilapidated conditions of holding cells, riddled with mice and rat feces. Her accounts of Arizona prisons and jails were no different than those that I had documented years before meeting her. Contaminated drinking water, inhumane living conditions, and other problems are well known in the American carceral system—especially in the facilities reserved for women. After we became fellow advocates and friends, I visited Arizona detention centers and prisons with Sue Ellen; the memories do not wear off.

Sue Ellen’s incarceration also marked the death of her 25-year-old cellmate, Gina. A mother of four, serving a sentence for a drug-related crime, Gina died from medical neglect. Sue Ellen and the other female inmates made appeals for her care but were threatened for speaking out. Finally, on the day in which Gina received the medical care for which she, Sue Ellen, and other incarcerated women advocated for, she lapsed into a coma. Gina was dead three days later. For months, prison officials refused to have a blood test administered, even though Gina complained of searing pain, could not hold down food, and was weak and with fever.

On a night that I will never forget, Sue Ellen phoned at 2 a.m., sobbing and apologizing for calling so late. Still awake after a long, cross-country flight to give a distinguished lecture at Northeastern Law School, I hurriedly answered her call. Sue Ellen informed me that Gina’s eldest daughter had committed suicide earlier that day.  Barely audible, she explained the girl, “shot herself in the head.”  I took it in, prepared like a boxer who intuits a punch in the gut simply by entering the ring.  It is the nature of advocacy for incarcerated women; harm, death and misery follow, and you learn to be prepared for it.

Women’s mass incarceration is a feminist issue. As women of color know well, these are also reproductive justice issues. Women of color bear the brunt of surveillance, policing, and mass incarceration in the United States.Click To Tweet

Ironically, my planned talk focused on the collateral damage of mass incarceration—the hidden and invisible story of women’s lives and their children.  Women’s mass incarceration is a feminist issue.  As women of color know well, these are also reproductive justice issues.  Women of color bear the brunt of surveillance, policing, and mass incarceration in the United States, Black women particularly.  For example, 1 in 18 Black women will experience incarceration in her lifetime, compared to 1 in 118 white women. As incarcerated mothers are more often the primary caregivers, their children become invisible casualties of the criminal justice system and suffer from the numerous ways incarceration disrupts their lives, resulting too often in foster care.   Black children are more than seven times more likely to experience a parent in prison compared to white children.[iii]  For Latino children, they are more than twice as likely as white children to experience a parent’s incarceration. Professor Kristin Turney’s research argues that the impacts of incarceration on children are worse than experiencing a parent’s death or suffering through divorce.[iv] Their suffering has yet to be fully accounted for. Here again, Sue Ellen was bearing witness to the tolls of mass incarceration as more than an academic inquiry or case study. That middle-of-the-night call left an indelible mark, and the reproductive justice implications were more than apparent to me.

Such memories come to mind as I reflect on Sue Ellen’s contributions and passing. She leaves a fundamental gap in the American prison reform movement—one that must take into account reproductive health, rights, and justice—but too often fails to do so. Upon her release, Sue Ellen dedicated herself to advocating on behalf of the formerly incarcerated, especially women. Her advocacy caught the attention of the White House and President Barack Obama; mass incarceration and prison reform became one of the very few areas in which bipartisan collaboration emerged during his presidency.  Sue Ellen was a powerful voice for women, demanding that the reach of sex-based constitutional equality extend into American prison systems.  She joined me in articulating that mass incarceration should be understood as a feminist concern and a reproductive justice issue.  In many ways, Sue Ellen was the Ruth Bader Ginsburg of prison reform, and sadly within months the world would lose both.

Indeed, only a few months prior to Sue Ellen’s passing, the legal world shook on September 18, 2020, with the death of Justice Ruth Bader Ginsburg. Justice Ginsburg was an indefatigable legal champion of equality generally and women’s equal opportunity, rights, and dignity specifically. She earned the moniker, “Notorious RBG” as an unflinching and unapologetic feminist lawyer and jurist.  Years before her confirmation to the Supreme Court, during her leadership at the American Civil Liberties Union (ACLU), she and ACLU legal teams across the United States helped to strike down, overturn, or repeal three hundred sex-based discriminatory laws that excluded women from full participation in society. At a fundamental level, Justice Ginsburg recognized the inhumanity of a state that would constrain women’s inclusion and participation in society.

Justice Ginsburg recognized the inhumanity of a state that would constrain women’s inclusion and participation in society.Click To Tweet

Justice Ginsburg’s engagement in the fight for women’s full constitutional inclusion and equality began long before President Jimmy Carter nominated her to the federal bench. Born in 1933, she lived during both Jim Crow and Jane Crow—the former marking racial segregation and court-sanctioned “separate but equal” policies, and the latter a period in which women were largely denied the opportunities accorded men by discriminatory local ordinances, state statutes, and cultural norms. Far too frequently, courts failed women as they sought judicial review and remedy for the harms they experienced.

Justice Ginsburg ascended as only the second woman nominated and confirmed to the United States Supreme Court, following Justice Sandra Day O’Connor. From time to time, I revisit her confirmation hearing as it stands as a testament to her clear and unreserved articulation of a feminist perspective in law. I listen to the audio, mark up the transcript, and find something new each time.  Most recently I have landed on her annual visits to local jails in Washington, DC, so that she could always be reminded of people whose lives were affected by her decisions as a judge.

At her Supreme Court confirmation hearing, she spoke openly about the importance of abortion rights, the urgency of women’s equality across the law, and civil rights.  She cites an important but relatively obscure case, Hoyt v. Florida, for the proposition that sex-selective jury service that mandates men’s participation, but makes it optional for women, disserves women as criminal defendants.[v]  In that case, Gwendolyn Hoyt a battered woman who killed her husband, was convicted of second-degree murder by an all-male jury. Justice Ginsburg made the point to the Senate Judiciary Committee that women on the jury might have better related to the life-threatening terror Mrs. Hoyt experienced at the fists of her husband.  Since so few women actually went through the process of registering for jury duty, an abused woman like Gwendolyn Hoyt who retaliated against her attacker was effectively denied a jury of her peers.[vi]

Times have now changed, and it is not clear that another woman nominated for the Supreme Court would boldly articulate the centuries of oppression, sexism, and racism borne by women or speak to the urgency of sex equality. Years later, during her confirmation hearing, Justice Sonia Sotomayor was assailed for daring to articulate that being a woman of color—a Latina—had shaped her world view.

Having cofounded and directed the Women’s Rights Project Justice at the ACLU, Justice Ginsburg took seriously the human dignity of women and girls, and her advocacy and later jurisprudence reflected this. She understood the myriad ways in which state violence—physical, economic, and psychological—undercuts women’s potential and undermines their safety, liberty, equality, autonomy, and privacy. She spoke decisively to these matters before a notably male-dominated Senate Judiciary Committee.

Like feminists before her, Justice Ginsburg valued the need for law in dismantling the vestiges of centuries of oppressive common law, legislation, and more that constrained and outright blocked constitutional protections for women.  While she is understood as a broad advocate of women’s rights, Justice Ginsburg’s jurisprudence and legal advocacy are most commonly associated with reproductive health and rights. This is unsurprising, as she believed that women’s reproductive liberty was central to their full personhood. Of particular note, she powerfully articulated what the threat to reproductive independence means in the lives of women, especially women made vulnerable by structural racism, economic distress, domestic violence, lack of meaningful employment opportunity, and unequal pay.  She recognized that these conditions limited women’s full participation in society. She understood that by constraining women’s abilities to be full in their personhood, lawmakers chipped away at their humanity. Denying women control over their reproductive health—whether to maintain a pregnancy or terminate it—infringed on not only legal rights but also human dignity.

Justice Ginsburg’s thoughtful majority opinions and discerning dissents revealed a deep awareness of the violence situated alongside the call for reproductive autonomy and independence—both state and private violence. She spoke openly about, and as a Supreme Court Justice wrote about, the violence and inhumanity at the heart of state restrictions that constrain women’s reproductive health decisions. In Whole Woman’s Health, she wrote in concurrence, “When a State severely limits access to safe and legal procedures, women in desperate circumstances may resort to unlicensed rogue practitioners, faute de mieux [for lack of an alternative], at great risk to their health and safety.”^[vii] Meanwhile, mindful of the private threats that could be (and too frequently are) visited upon women by boyfriends, husbands, employers, and in the contexts of reproductive health, antiabortion activists, she laid out a feminist constitutional agenda until the end of her life.

In fact, as I pen this essay, reflecting on a decade of my own feminist legal scholarship, I am reminded of Justice Ginsburg’s final opinion in a reproductive rights case, June Medical Services v. Russo, from summer 2020, right at the peak of COVID-19.^[viii]  As legal scholars prepared for that decision, I grew exhausted by the many examples of both state and private violence inflicted on women over time: marital rape, permissive beatings, infringements on contraceptive access, provisions undermining the right to abortion, and much more. A close reading of centuries of jurisprudence paints an incontrovertible truth hidden in plain sight: these impediments to women’s full equality—laws and jurisprudence that Justice Ginsburg consistently fought to dismantle—were backed by court decisions at every level of the judiciary.

As much as racism, sexism, and homophobia are social conditions—they are also seeds planted into law that flourish in fertile environments maintained by courts.Click To Tweet

As much as racism, sexism, and homophobia are social conditions—they are also seeds planted into law that flourish in fertile environments maintained by courts. That is, case after case reveals women’s inequality forged, secured, and maintained with the force of law.  Nowhere is that more apparent than the horrors inflicted on Indigenous and Black women before the nation’s founding and through the decades and centuries that followed.  Yet law does not exist in a vacuum. It is the product of those empowered to draft, enact, and opine on it.  Historically and even today, women fight to be counted among those wielding the pen, seat, and power.

The passing of Sue Ellen Allen and Justice Ruth Bader Ginsburg inspire my reflections on their legacies and situate this essay, which takes up the force and role of law in shaping women’s histories and destinies.  These are histories marked by the violence of slavery, eugenics, Jim Crow, and the yet unnamed eras of harm. Their deaths urge a reflection on the unfinished business of attaining women’s equality and full inclusion in society and what it takes to do so, which argues that the active presence of women in the body politic is fundamental to women’s basic personhood.

This essay centers on reproductive health, rights, and justice—though there are many areas in which feminist thought can flourish.  Its central argument maintains that state efforts to force women into continuing pregnancies by banning abortion, undermining access to reproductive health information, or imposing unconstitutional constraints on providers directly implicate more than financial concerns; they involve whether pregnant women have a right to life and information.  Whether women are empowered to make these decisions regarding women’s lives is an important question for feminist jurisprudence.  This essay draws together prior reflections on the value of feminist thought and jurisprudence in addressing the stature and status of women in the law, surveying women as subjects and adjudicators of the law.

Reductive storytelling: Who shapes the narrative?

There is a proverb widely paraphrased across various African nations, and most closely attributed to Chinua Achebe: the tale of the hunt will always glorify the hunter until the lion has its say.[ix]  Much can be gleaned from it, including in reflection on American law and jurisprudence.  The tale of women’s personhood, intelligence, and capacities was defined by courts and tethered women to an ahistorical, mythological American existence—one that characterized marriage and caregiving as the “natural” and legal places for women to occupy.  Even if it was unspoken, courts were speaking to social expectations for white women; presumptively, Black women were destined to labor and toil for the benefit of others.   These were the framings curated by men of law—not women.   As my prior writings explain, the United States Supreme Court set the stage for such sophistry.

Courts played a profound role in conscribing women to second-class citizenship that denied them broad civic participation, including voting, participating on juries, and professional employment.^[x]  In Bradwell v. Illinois, the US Supreme Court upheld a law barring women law graduates from practicing law.^[xi] Justice Joseph Bradley found that nature and law deemed it “repugnant” for a woman to adopt “a distinct and independent” civic life from her husband because by law she lacked fundamental capacities.^[xii] The subsequent ruling by the Wisconsin State Supreme Court in In re Goodell further illustrates the rhetoric strategically deployed by legislatures and courts to deny women personhood and autonomy over their lives:

We cannot but think the common law wise in excluding women from the profession of the law. . . . The law of nature destines and qualifies the female sex for the bearing and nurture of the children of our race and for the custody of the homes of the world and their maintenance in love and honor. . . . There are many employments in life not unfit for female character. The profession of the law is surely not one of these. The peculiar qualities of womanhood, its gentle graces, its quick sensibility, its tender susceptibility, its purity, its delicacy, its emotional impulses, its subordination of hard reason to sympathetic feeling, are surely not qualifications for forensic strife.^[xiii]

Of course, such rhetoric constrained women’s abilities to use their bodies in professional labor.  Most importantly, by declaring that so-called laws of nature dictate women bearing children, the Court trapped women into lives of subordination and servitude to husbands, children, and ultimately the state, which commanded them to serve those roles. Ironically, promoting women’s safety, virtue, and protection was the legal lark that normalized this type of misogyny. It justified the subordination of women through harsh regulations and practices. Notably, however, neither legislatures nor courts were concerned about the truthfulness of their claims about women’s capacities. That is, facts and empirical truths regarding women’s lives were inconsequential or irrelevant to such judicial determinations.

That judges dominate the storytelling in law helps to explain social ordering in society as well as class and racial hierarchies.  Even after the ratification of the Fourteenth Amendment, while legislatures recognized women’s citizenship, they insisted on denying them suffrage based on the fiction that women lacked the sophistication of mind and judgment to cast a vote.^[xiv] Legislatures debated whether a woman’s vote would essentially double the impact of her husband’s vote. In other words, women could not be trusted to act independently at the ballot box.  But, neither could men.  Yet, who is to say men did not vote according to special and collective interests?  In any case, the Supreme Court deferred to state legislatures on this sophistry and solidified women’s political subordination by ruling in Minor v. Happersett that although the Constitution granted women citizenship, it did not confer upon them a right to vote.^[xv]

Simply put, the legal disputes regarding whether a woman was entitled to vote, serve on a jury, or become a lawyer never sincerely measured women’s capacities and capabilities. Yet clearly emerging from that jurisprudence are two problematic approaches adopted by courts to evaluate women’s claims of discrimination.  First, the use of stereotype to restrict women’s equal opportunities.  Second, the adoption of protectionist tropes to limit women’s autonomy.  Justice Brennan seemed to acknowledge such in Frontiero v. Richardson, a case argued by Ruth Bader Ginsburg on behalf of the ACLU at the Supreme Court in 1973.

In that case, Sharron Frontiero, a married, female lieutenant in the Air Force, sought benefits for her dependent husband under federal law. Even though such benefits were provided to wives of Air Force officers, her application was denied by a review board for failure to satisfy statutory dependency requirements.  The federal law in question provided that servicemen could claim their wives as dependents even if they were not dependent on their husbands for any support. On the other hand, women in the service were denied the ability to claim such benefits for their husbands in the same programs, even if their husbands were in fact wholly dependent on their wives due to disability that prevented employment or due to full engagement in caregiving and childrearing.

Frontiero appealed the decision to a federal district court in Alabama—again claiming that it unconstitutionally discriminated against servicewomen and their husbands.  Again, they lost; a three-judge panel sided with the government, denying the couple’s claim and sustaining the federal provision that entitled servicemen to claim their spouses as dependents, but not servicewomen.  On the couple’s final appeal—to United States Supreme Court—the question was whether this distinction in treatment constituted unconstitutional discrimination against women in the military.  In a landmark victory for Frontiero and female servicemembers, Justice Brennan observed, “There can be no doubt that our Nation has had a long and unfortunate history of sex discrimination” rationalized “by an attitude of ‘romantic paternalism’ which, in practical effect, put women, not on a pedestal, but in a cage.”[xvi]    Later, Justice Ginsburg described this as the “gilded cage.”

Importantly, whether courts grounded their determinations about sex-based discrimination in stereotype or paternalism, both frameworks served as proxies for permissible discrimination and unequal treatment against women.  Even as aspects of this gave way in equal protection cases brought before the Supreme Court in the 1970s, such as Frontiero, where the Court overturned the district court’s denial of dependency benefits, vestiges of the gilded cage persist.

For example, paternalism endures in contemporary jurisprudence involving reproductive health care.  Arguably, reproductive health care and decision-making has always been about much more than simply women’s health and safety. Male authority, power, and dominion over women’s reproduction historically served political purposes that framed women’s capacities and the span of their rights almost exclusively as service to men: as a good wife to a husband, as mother and caregiver to a man’s children, as a conduit to male reproduction, as a whipping post, and as sexual chattel.^[xvii]  Complicatedly, for Black women, they were the literal chattel of both white men and white women who enslaved them; both exploited their reproductive capacities for economic profit.  Even feminist jurisprudence rarely depicts or substantively addresses this complex organization of American legal life.

This essay considers how a more ambitious and redefined feminist jurisprudence that follows an empirical path, grounded in class and race analysis, might redirect itself and create a new narrative path for reproductive health and rights.Click To Tweet

This essay takes up the unfinished fight for constitutional equality in the realms of reproductive health and rights. At the heart of these issues are legacies of sexism and racism dating back centuries, rooted in social mores, legislation, and judicial opinions.   Importantly, the unfinished business relates not only to courts but to feminist discourse itself, which from time to time renders invisible the concerns of women of color by centering white women to the exclusion of others.  Where feminist discourse in reproductive health and rights centers almost exclusively on abortion rights, a reproductive justice framework concerns maternal mortality, compulsory and coercive sterilization, pregnancy and childbirth, abortion, and the ability to rear one’s children in a healthy, safe environment. This essay considers how a more ambitious and redefined feminist jurisprudence that follows an empirical path, grounded in class and race analysis, might redirect itself and create a new narrative path for reproductive health and rights.

Redirecting the narrative

Justice Harry Blackmun’s majority opinion in Roe v. Wade significantly interrupted centuries of prior jurisprudence.^[xviii]   Prior to Roe, courts ignored value in women’s lives apart from their usefulness to others.  Courts deemed women to possess limited intellectual or social value or potential outside of the mastery of matters related to domestic life.  However in Roe, roughly one hundred years after the Supreme Court upheld state laws barring women from voting and entering the practice of law, the Court acknowledged the chilling impacts associated with social stereotyping and stigmatization of women. In Roe, which decriminalized abortion in the United States, the Court finally acknowledged the “detriment” that states had long imposed on women when it denied them choices about their reproductive destinies.^[xix] Justice Blackmun candidly acknowledged the “specific and direct harm medically diagnosable even in early pregnancy” that some women may endure by being forced by the state to bear children.^[xx]

Roe’s reliance on social science represented a sea change; Justice Blackmun consulted science, history, and sociology to dispel the notion that abortion had always been illegal in the United States.^[xxi] For the first time, the Court clearly articulated that motherhood and childbearing could be harmful to women.^[xxii] Further, to force or coerce women through state power into those outcomes violated their constitutional right to privacy. He wrote:

Maternity, or additional offspring, may force upon the woman a distressful life and future. Psychological harm may be imminent. Mental and physical health may be taxed by child care. There is also the distress, for all concerned, associated with the unwanted child, and there is the problem of bringing a child into a family already unable, psychologically and otherwise, to care for it. In other cases, as in this one, the additional difficulties and continuing stigma of unwed motherhood may be involved.^[xxiii]

The Court explained, “We are also told . . . that abortion was practiced in Greek times as well as in the Roman Era, and that ‘it was resorted to without scruple.’”^[xxiv] Indeed, abortion was practiced legally in the United States for centuries prior to brutal nineteenth century antiabortion campaigns launched by male physicians who sought to monopolize women’s health care by driving out and criminalizing midwives and stigmatizing abortion.^[xxv] Horatio Storer, a chief architect of the nineteenth-century antiabortion/antimidwife movement, wrote, “[midwives] frequently cause abortion openly and without disguise.”^[xxvi] Even more unsettling to him, “they claim a right to use instruments, and to decide on the necessity and consequent justifiability of any operation they may perform.”^[xxvii] Undoubtedly, that level of expertise, autonomy, and independence among midwives, who were predominantly Black, threatened the burgeoning field of gynecology, which was practiced exclusively by white men.^[xxviii]

Referencing aspects of this history, the Court wrote, “It is undisputed that at common law, abortion performed before ‘quickening’—the first recognizable movement of the fetus in utero, appearing usually from the 16th to the 18th week of pregnancy—was not an indictable offense.”^[xxix] Justice Blackmun canvassed Christian theology and canon law, finding “there was agreement . . . that prior to [quickening] the fetus was to be regarded as part of the mother, and its destruction, therefore, was not homicide.”^[xxx] The Court noted that prior to “the anti-abortion mood” that became prevalent in the late nineteenth century, abortions were not criminalized.^[xxxi] In other words, “a woman enjoyed a substantially broader right to terminate a pregnancy” until the antiabortion campaigns that coincided with the abolitionist and suffrage movements in the United States.^[xxxii]

Today, however, Roe’s legacy remains uncertain. Campaigns to undo the hard-fought rights gained by women to govern their bodies and reproductive health now result in the closing of clinics that perform not only abortion but also a plethora of women’s reproductive health services. For millions of poor women, they are trapped, living in states where only one abortion clinic remains—such as Missouri, Mississippi, North Dakota, South Dakota, and Wyoming—forced to drive hours even during life-threatening pregnancies to arrive at the nearest clinic.^[xxxiii] Despite the promise of Whole Woman’s Health v. Hellerstedt, states continue to erect serious barriers to women’s reproductive autonomy by enacting Targeted Regulations of Abortion Providers (TRAP laws) that claim to protect and promote women’s health.^[xxxiv] Empirically, however, such laws do not promote women’s health. In the United States, a woman is fourteen times more likely to die in pregnancy or childbirth than during an abortion.^[xxxv]

Today...Roe’s legacy remains uncertain. Campaigns to undo the hard-fought rights gained by women to govern their bodies and reproductive health now result in the closing of clinics....Click To Tweet

However, in recent years, among the most significant battles in the reproductive health, rights, and justice realm center on whose truths matter. In 2013, after heated debate and an ambitious but unsuccessful filibuster, the Texas Legislature enacted House Bill 2 (H.B. 2). The law contained two provisions at issue in the 2016 U.S. Supreme Court case, Whole Woman’s Health v. Hellerstedt:^[xxxvi] mandating doctors who perform abortions to obtain hospital admitting privileges and requiring abortion clinics to meet Ambulatory Surgical Center (ASC) Standards. The legislation represented another tool in the antiabortion arsenal built and primarily cultivated by male lawmakers.

Strategically, Texas lawmakers claimed H.B. 2 and similar laws protected women, preserved their health, and enhanced patient safety. As such, lawmakers leaned into a successful contemporary version of the gilded cage playbook; co-opting feminist concerns and aligning them with an antifeminist, unconstitutional agenda.  Texas lawmakers failed to demonstrate exactly how such laws would actually achieve those purported goals of protecting women and preserving their health. Nevertheless, Governor Rick Perry signed the legislation, heralding it as part of the “culture of Texas” that would make abortion “a thing of the past,” revealing that the true nature of the Texas law was to end abortion access in that state.^[xxxvii]

In 2016, in a 5‒3 decision, the Supreme Court struck down both provisions under review in Whole Woman’s Health: the hospital admitting privileges provision as well as the ASC mandate. In striking down the laws, the Court held that neither law conferred medical benefits that would justify the harms imposed on pregnant women seeking to exercise a constitutional right to terminate a pregnancy. The Court found the Texas provisions imposed unconstitutional, undue burdens not sufficiently related to the justifications put forth by the state. Further, the Court took special note that the evidence presented before the district court revealed that admitting privileges did not advance the state’s interest in protecting women’s health but did place a substantial burden on the path of a woman seeking an abortion by forcing about half of the state’s abortion clinics to close. This additional layer of regulation provided no further protections than those already in place.

For example, the Court found “there was no significant health-related problem that the [admitting privileges] law helped to cure.”^[xxxviii] In fact, when asked at oral argument “whether Texas knew of a single instance in which the new requirement would have helped even one woman obtain better treatment,” Texas admitted there was not one case.^[xxxix] This finding mirrored that evidenced in other states.

Writing for the Court, Justice Stephen Breyer took specific note of a particular doctor’s experience. Dr. Sherwood Lynn practiced at the McAllen clinic in Texas. He delivered 15,000 babies during thirty-eight years in practice and “was unable to get admitting privileges at any of the seven hospitals within 30 miles of his clinic.”^[xl] Justice Breyer observed that these denials of admitting privileges were “not based on clinical competence considerations.”^[xli] Rather, hospitals typically allow admitting privileges only if the doctors will generate a sustained clientele to the hospital. Given that abortions are as safe as penicillin shots, on average less than 1 percent of a doctor’s patients would be admitted to the hospitals.

Based on this evidence as well as a formidable empirical record, the Court concluded that the two Texas abortion provisions conferred no medical benefits sufficient to justify the burdens imposed on women in Texas. The Court found that the admitting-privileges requirement led to the closures of “half of Texas’ [abortion] clinics.”^[xlii] In other words, protecting women’s health was a duplicitous proxy or pretext for denying women the constitutional right to terminate a pregnancy. The same was true in the case of virtually identical legislation enacted recently in Louisiana at issue in June Medical.

The Court’s Whole Woman’s Health decision was notable for its serious turn to the empirical record. As such, the Court held that the judicial review of such statutes need not be wholly deferential to the legislative fact-finding, particularly when the factual record before the district court contradicted it. Relevantly, it was the factual record amassed by the district court on which the majority of the Supreme Court relied. Indeed, based on the empirical record evaluated at the district court level, the Court concluded that the laws were so tangential in relation to pregnant patients’ health and safety as to be “nearly arbitrary.”

In her concurrence, Justice Ginsburg agreed that “inevitably,” if permitted to stand, laws such as the Texas abortion provisions “will reduce the number of clinics and doctors allowed to provide abortion services” even though “many medical procedures, including childbirth, are far more dangerous to patients, yet are not subject to the ambulatory-surgical-center or hospital admitting-privileges requirement.”^[xliii] According to Justice Ginsburg, abortion provisions such as those at issue in Whole Woman’s Health “that do little or nothing for health, but rather strew impediments to abortion, cannot survive judicial inspection.”^[xliv]

Yet in 2017, only months after the Supreme Court struck down ambulatory surgical center requirements as a condition of a clinic’s licensure to provide abortions, Minnesota state legislators sponsored an almost identical bill before that state’s legislature.^[xlv] Clearly, the bill would not pass constitutional muster because statutes requiring ambulatory surgical center standards for abortion clinics are unconstitutional as a matter of law. However, litigating TRAP legislation exacts an enormous financial toll on women’s health organizations. Furthermore, for as long as unconstitutional TRAP barriers exist in a state, women are deprived of their constitutional rights.

Consider the recent United States Supreme Court 5‒4 decision in June Medical Services v. Russo. In this case, Louisiana’s Unsafe Abortions Protection Act required doctors who perform abortions to have admitting privileges at nearby hospitals. On their face, such laws appear to be content neutral and have as their goal furthering the safety of the procedure—and not eliminating the abortion right. However, the spate of such laws in the last decade raises quantitative and qualitative questions related to their scope, scale, the number of abortion clinics that have shuttered in their wake, the significant delays caused to patients who seek abortions, whether they serve the purpose of burdening abortion rights, and even whether such laws ultimately contribute to increases in unwanted childbirths and maternal mortality.

June Medical reflects the ongoing challenge to abortion rights generally, and specifically those that are masked by legislation that purports to protect pregnant women. Since 1992, states have enacted hundreds of laws that claim to reasonably relate to the protection of pregnant women, including mandatory ultrasounds, waiting periods, and compulsory counseling, as well as laws that relate to facilities and impose strict requirements and restrictions on doctors. Particularly worrisome are the mandated counseling requirements, which force doctors to provide misleading information to their pregnant patient, including disproven information that abortion causes mental illness, cancer, and infertility. Even while medical organizations refute such claims, the Supreme Court has not struck down a mandatory counseling law.

In what could be interpreted as defiance of the Court and indifference to Whole Woman’s Health, Louisiana’s legislature did not repeal the “Unsafe Abortion Protection Act” or Act 620—its version of the Texas law, which requires “a physician performing or inducing an abortion” to “have active admitting privileges at a hospital that is located not further than thirty miles from the location at which the abortion is performed or induced and that provides obstetrical or gynecological health care services.”^[xlvi] To place in context the Louisiana legislature’s bold and unusual disregard of stare decisis, imagine that state enacted a separate but equal public school segregation law based on race, in the wake of Brown v. Board of Education’s holding striking down such legislation—based on the dubious notion that the Court’s decision only reached Kansas and not Louisiana.

Unconvinced that the facts undergirding Whole Woman’s Health applied in Louisiana, the Fifth Circuit lifted the injunction barring the law from going into effect. In doing so, the court brushed aside that more than half the clinics in Texas closed due to the Texas admitting privileges law going into effect, precisely because doctors could not obtain such privileges. As the Supreme Court made clear, the Texas admitting privileges bore no relation to physician competency or protecting women’s health, because abortions are safe procedures that nearly never require any form of hospitalization.

In June Medical, the Fifth Circuit engaged in a heightened level of casuistry. The court conjectured that if the Louisiana law went into effect, unlike in Texas, it would not result in the closure of abortion clinics, that driving distances to reach clinics would not increase, and that “the cessation of one doctor’s practice will affect, at most only 30 percent of women, and even then not substantially.”^[xlvii] By analogy, imagine a federal court of appeals claiming that a school segregation law affecting only 30 percent of Black students did not contravene Brown nor interfere with the constitutional rights of the students involved. Placing the ruling in the context of race exposes the glaring sophistry in the Fifth Circuit’s analysis, which is not explained by Supreme Court precedent, the factual record, or regard for the health and safety of the women in Louisiana.

However, one need not study either the lengthy taxonomy of separate-but-equal laws creating and enforcing race-based, second-class citizenship or my hypothetical (comparing Louisiana’s post Whole Woman’s Health procedural posture to rejecting Brown) or relitigate the shameful horrors of Jim Crow in Louisiana and throughout the American South to recognize the harms it would inflict on Black students in Louisiana if the state were to have challenged school segregation. The vestiges and badges of slavery would be apparent. Indeed, any claims by Louisiana that its version of separate-but-equal was so factually different such that Brown has no application or relevance would be farcical. The distinctions are irrelevant when the very principle violates the Constitution. Brown did not apply only in Topeka, Kansas.

Thus, Louisiana’s abortion provision and its assertion that the Court’s findings and ruling in Whole Woman’s Health did not apply to its state must be understood not only within its legal contexts (as a rejection of constitutional law and stare decisis) but also for its cruel and unusual application. Sadly, given that “women in Louisiana die more often from pregnancy than in other states,” such cruel laws can amount to a death sentence, especially for the women most affected, who happen, in Louisiana, to be poor women, especially women of color.”^[xlviii] Most notably, the maternal mortality rate in Louisiana is twice the national average.^[xlix]

Importantly then, during the summer of 2020, the Supreme Court, in a 5‒4 decision, voted to overturn the Fifth Circuit’s decision with Chief Justice John Roberts casting the key vote in a concurrence with the Court’s four liberal justices.^[l] At first glance, June Medical appears to be a victory for abortion rights advocates. After all, the case reaffirmed Whole Woman’s Health. Furthermore, the case also extended the precedential value in what remains of Roe v. Wade’s holding as well as the jurisprudence of Planned Parenthood v. Casey. June Medical preserves the constitutional right to terminate a pregnancy. The Court’s ruling effectively struck down all admitting privileges laws. However, the Court’s composition—in the wake of Justice Ginsburg’s death—no longer holds as it did in either Whole Woman’s Health or June Medical as three major shifts occurred.

First, Justice Antonin Scalia’s death resulted in an eight-member judicial panel of the Supreme Court hearing Whole Woman’s Health, with Justice Kennedy siding with the majority—leading to the 5-3 vote.  Second, even as Justice Roberts sided with the liberal justices in June Medical, emphasizing that his vote reflected broader rule of law concerns related precedent, by this point Justices Brett Kavanaugh and Neil Gorsuch joined the Court, deepening an ideological cohort on the Supreme Court—revealing a split of 5-4.  Third, in the wake of Justice Ginsburg’s death, Donald Trump nominated, and the senate confirmed, Justice Amy Coney Barrett to the Supreme Court.  Justice Barrett’s judicial record is relatively thin compared to that of prior Supreme Court justices, as she served as a judge for only two years prior to ascending to the Court.  Nevertheless, her prior public statements make clear that she opposes abortion.  Further, Justice Barrett describes her ideology as aligning with that of Justice Scalia, for whom she clerked.  With Justice Barrett on the Court, there are now six conservative justices who have opposed, or would oppose, reproductive rights.  Even if Justice Roberts were to align with liberals on the Court in a future challenge to Roe, five conservative justices could vote uphold a law that just five years ago would have been unconstitutional. As such, the future is uncertain.

Feminist jurisprudence without feminists?

American law has been slow to self-correct. Excluding women from obtaining licenses to become lawyers resulted in denying them the ability to practice law or ascend in myriad occupations within the legal profession, including the judiciary. It stunted the growth of a feminist jurisprudence from within the judiciary. Ultimately, this exclusion of women served to benefit men by creating exclusionary zones or monopolies in lawmaking.  In other words, law was governed by men and dominated by their interests.  Law is only an example of this—similar patterns occur(ed) throughout the public and private sectors—in academia and professions from medicine to science to history to anthropology.

{The} exclusion of women {from the judiciary} served to benefit men by creating exclusionary zones or monopolies in lawmaking.... Law was governed by men and dominated by their interests.Click To Tweet

This historic problem continues to pervade the American judiciary. Even though the founding of American federal courts of appeal dates back to 1891, prior to Jimmy Carter’s presidency, only two women had been appointed to the federal appellate bench. As of 2018, 754 judges had served on the US courts of appeals and only 91 of those judges have been women. That is, roughly 12 percent of all appellate judges have been women. Also, as of that same year, there were 269 sitting judges in the federal circuit courts, but only 73 of those judges were women. Why does this matter?  These data points underscore both the historic legacy of women’s exclusion and the recent trickling of inclusion. Second, women only represented roughly 27 percent, or a little over a fourth, of the judges serving on the bench.  In some circuits, as few as two women have ever served as a judge.

Importantly, the lack of diversity on the federal bench is not limited to sex or gender. Most female judges serving at both state and federal levels are white. White women are more likely than nonwhite women to be nominated to the federal judiciary. A look at appointments by presidents illustrates the change in the federal judiciary’s composition. According to the Congressional Research Service, “of all the district court judges appointed by President Carter, 67% were white men; 11% were white women; 19% were non-white men; and 3% were non-white women.”^[li] In total, 86 percent of Carter’s appointees were men.  Surprising as it may seem given those statistics, President Carter broke ground with the number of women he nominated to the federal bench. He nominated more women to circuit courts than all prior presidents combined.^[lii]

Even under President Barack Obama’s administration, nonwhite women were significantly less likely as a group to be nominated to the federal judiciary.^[liii] During his administration, 15.7 percent of district court appointees were nonwhite women, while 20.9 percent were nonwhite men and 25.4 percent were white women.^[liv] Almost 40 percent of President Obama’s district court appointees were white men.^[lv]  That said, what action President Obama undertook to nominate women of color to the federal bench has been described as historic and unprecedented, and this likely reflects the near absence of consideration of women of color for federal judgeships during prior administrations. President Obama appointed seven of the nine Asian American women (or 78 percent) “to ever serve as federal district court judges. He also appointed each of the four multiracial women to ever serve as district court judges.”^[lvi] In total, “he . . . appointed 42 (or 45%) of the 93 non-white women to ever serve as U.S. district court judges.”^[lvii]

Can there be a feminist jurisprudence with marginal representation of women on courts?  Fortunately, feminist jurisprudence is not defined only by the quantity of feminist voices on the court but rather by interpretative and analytical methodologies used to scrutinize and analyze the underlying social and legal dynamics of cases, legislation, and policies. Nevertheless, the presence and active participation of women in government—in legislatures and on the bench—matters. A critical mass matters—that is, a minimum or sufficient percentage of individuals who share ideology or affinity and who collectively believe in an ideal or contribute to an action such that they are able to exert influence, inspire interest in their platforms, produce desired outcomes, and avoid tokenism.

When Justice Sandra Day O’Connor announced her retirement from the Supreme Court, President George W. Bush nominated Judge John Roberts, who sat on the Court of Appeals for the District of Columbia, as her successor. Justice O’Connor, a Reagan nominee, cast the crucial vote in Planned Parenthood v. Casey that extended the life of Roe v. Wade. Asked her opinion about Roberts, she responded, “That’s fabulous . . . . He’s good in every way . . . except he’s not a woman.”^[lviii]  She was not alone; other Republican women expressed similar concerns, including the president’s wife, Laura Bush.^[lix] When Senator Kay Bailey Hutchinson was asked, “Well didn’t you want a woman?” she responded, “Well, yes, of course, I did.”^[lx]  In making her statement, Justice O’Connor may have been addressing a deeper concern, addressing not just sex but also ideology among conservative women of her generation.

That is, even though conservative in ideology, Justice O’Connor openly supported abortion rights.  She was not alone.  Betty Ford similarly championed abortion rights.  In a 60 Minutes interview, when asked about the importance of Roe v. Wade, she stated that the Supreme Court’s decision was “the best thing in the world…a great, great, decision.”[lxi]  These women were not outliers; in her memoir, Fighting for Common Ground: How We Can Fix the Stalemate in Congress, Senator Olympia Snow recounts being recruited to run for Congress and being explicitly outspoken in her support for abortion rights.[lxii] This nuance matters, considering attempts to understand whether there is such a thing as conservative feminism or considering feminist critiques of “liberal feminism” that center the concerns of white women to the neglect of women of color.  It matters considering the concern that the quantity of women in legislative and judicial representation is not a substitute for feminist judgements and values; simply put, Justice Barrett shows no promise of sharing the feminist judgements or temperament of Justice Ginsburg, whom she replaces on the Court. However, it is worth noting that it’s unlikely Justice Barrett shares the judgements of Justice O’Connor (or Kagan and Sotomayor) either.

A close reading of Planned Parenthood v. Casey, a case that modified Roe’s holding, reveals O’Connor’s concern about women’s autonomy.  In that case, Pennsylvania sought to impose spousal notice requirements on the right to terminate a pregnancy.  In her coauthored opinion with Justice Kennedy, she wrote, “there are millions of women in this country who are the victims of regular physical and psychological abuse at the hands of their husbands.”  As such, “should these women become pregnant, they may have very good reasons for not wishing to inform their husbands of their decision to obtain an abortion.”  If not an ocean, a wide gulf separates the ideology of Justice O’Connor from that of Justice Barrett.

Reporters for the Washington Post noted that “[Justice O’Connor] put a spotlight on the obvious trade-off involved in Bush’s decision” [to nominate Roberts as her successor]^[lxiii] However, it is unclear exactly what the trade-off was. At the time, of the more than 130 nominees to the Supreme Court, only four had not been white men:  Thurgood Marshall, Sandra Day O’Connor, Clarence Thomas, and Ruth Bader Ginsburg.

Today, very little has changed. Since 1790, of the 114 individuals who have served on the Court, only five have been women. In over 225 years, only three justices have been persons of color (two presently serving on the Court). A male judge replacing Justice O’Connor would have resulted in only one woman serving the Court—something that Justice O’Connor told a reporter in 2005 was “not acceptable.”^[lxiv] In the end, President Bush withdrew his nomination of Roberts to replace Justice O’Connor. Instead, at Chief Justice William Rehnquist’s retirement, he named Roberts to replace him as chief justice of the Supreme Court and another man, “Samuel A. Alito, Jr., . . . ultimately filled O’Connor’s seat on the bench.”^[lxv] Tellingly, Justice O’Connor predicted that President Bush would not name a woman as chief justice, which she told a reporter “almost assures . . . there won’t be a woman appointed to the court at this time.”^[lxvi]

At a time when core principles of justice related to voting rights, reproductive rights, racial justice, LGBTQ equality, and equality related to sex may be settled by the Supreme Court, its composition matters in critical ways. And the composition of the United States Supreme Court is undeniably troubling: all except one graduated from elite east-coast law schools: Harvard or Yale; most justices identify or affiliate as Catholic; and none have worked as defenders of poor, vulnerable people—as public defenders, for example.

Researchers at the Gavel Gap project, sponsored by the American Constitution Society for Law and Policy, find “troubling differences between the race and gender composition of the courts and the communities they serve.”^[lxvii] For two decades, they report, women have been about 50 percent of law students. Yet, within the legal profession, women do not comprise 50 percent of partners, general counsels, prosecutors, or judges. What explains this? Likely not one answer. The 2017 report by Vault and the Minority Corporate Counsel Association (MCCA) on diversity in law firms sheds some light on the problem and presents alarming data, including the fact that, for law firms, as of 2017, the rate of recruiting and hiring Black lawyers “remains below pre-recession levels.”^[lxviii] As the report notes, “The decline is primarily among women. In both 2007 and 2008, more than 3 percent of lawyers hired were African-American women; since 2009 that number has not climbed above 2.77%, the most recent figure.”^[lxix]

Quite possibly, the social sorting of women law graduates results in a stratification into law’s invisible pink collar. In addition, women who do place at elite firms might find the environments toxic and unwelcoming. The Vault-MCCA study shows that women of color are also overrepresented in departures from law firms.^[lxx] In 2016, according to the most recent data available from their research, Black women lawyers departed firms at the highest rates among all women at 18.4 percent. Asian American women were next (14.4 percent), followed by Latinas (12.4 percent), and white women were the least likely among women to depart law firms (11.6 percent), which was still higher than that of white men (9.1 percent).^[lxxi]  Obvious questions arise from the fact that women comprise nearly 50 percent of associates at law firms but make up only 19.8 percent of equity partners.^[lxxii] General counsel positions are equally stratified, even while “progress has certainly occurred since . . . there were only 11 minorities who were general counsel” at Fortune 500 companies in 1999.^[lxxiii] According to a study focused on diversity and the bar, much of the slow but seemingly steady progress among women as general counsels has been concentrated among white women.^[lxxiv]

Data on American courts tell a similar story. The Gavel Gap research focuses on state courts, and their data provides an important parallel. For instance, “people of color are 40% of the population, but less than 20% of state judges.”^[lxxv] In state courts, only 30 percent of judges are women, and, overall, 80 percent of judges are white.^[lxxvi] The researchers find this data troubling—and for good reason. They write, “We find that courts are not representative of the people whom they serve—that is, a gap exists between the bench and the citizens.”^[lxxvii]

Similar patterns exist in the federal judiciary. Despite the additions of Justices Sotomayor and Kagan to the Supreme Court (both appointed by a Democratic president, Barack Obama), women remain critically underrepresented in the judiciary at every level and barely crest a third of those presently serving on courts.^[lxxviii] This long-standing problem of imbalanced or nonexistent representation of women in the American judiciary dates back to the founding and incorporation of the American judiciary. In part, this could be explained by the prohibition of women serving as lawyers.

Conclusion

A lack of critical mass in any polity risks producing both sociological and normative illegitimacy, including within courts.^[lxxix] This illegitimacy produces spillage that leaks into women’s rights and drowns their interests behind the façade of neutrality and rationality. A body that lacks a critical mass of women can produce and reify tokenism, and it can create barriers to meaningful participation and persuasion for women.

The active presence of women in the body politic is a question of women’s basic personhood, which implicates quality of health, life, and even death.Click To Tweet

Given what is at stake—laws that would seek to undermine the health and safety of women—who sits on courts, in the legislature, and in the White House is more than a lofty academic concern. The active presence of women in the body politic is a question of women’s basic personhood, which implicates quality of health, life, and even death. Thus, state efforts to force women into continuing pregnancies by banning abortion, undermining access to reproductive health information, or imposing unconstitutional constraints on providers directly implicate more than financial concerns; they involve whether pregnant women have a right to life and information. As such these are important questions for feminist jurisprudence.

 

This essay draws on essays in Ms. magazine as well as law review articles published in the Northwestern University Law Review; Yale Law Journal; Challenging the Rhetorical Gag and Trap: Reproductive Capacities, Rights, and the Helms Amendment, 112 NW. U. L. R. 1417 (2018); Michele Goodwin & Mariah Lindsay, American Courts and the Sex Blind Spot: Legitimacy and Representation, 87 FORDHAM L. REV. 2337 (2019); and Beyond June Medical and Roe v. Wade, AM. CONSTIT. SOC’Y (Feb. 3, 2021), https://www.acslaw.org/beyond-june-medical-and-roe-v-wade/.

[i] Sue Ellen Allen, The Slumber Party from Hell: A Memoir (Scottsdale, AZ: Inkwell Productions, 2010).

[ii] Michele Goodwin, Policing The Womb: Invisible Women and the Criminalization of Motherhood (Cambridge: Cambridge University Press, 2020).

[iii]  Lauren E. Glaze & Laura M. Maruschak, Bureau of Justice Statistics, U.S. Dep’t of Justice, Parents in Prison and Their Minor Children 1–2 (2008).

[iv] Kristin Turney, Stress Proliferation Across Generations? Examining the Relationship between Parental Incarceration and Childhood Health, 55 J. Health & Soc. Behav. 302, 311–14 (2014).

[v] Hoyt v. Florida, 368 U.S. at 58.

[vi] Id.

[vii] Whole Woman’s Health v. Hellerstedt, 136 S. Ct. 2292, 2321 (2016) (Ginsburg, J., concurring).

[viii] June Medical Services, LLC v. Russo, 140 S. Ct. 2103 (2020).

[ix] Chinua Achebe: The Art of Fiction No. 139 PARIS REVIEW 133 (1994). https://www.theparisreview.org/interviews/1720/the-art-of-fiction-no-139-chinua-achebe,

[x] Minor, 53 Mo. 58 (upholding a state law denying women suffrage); Hoyt v. Florida, 368 U.S. 57, 61–62 (1961) (“[W]oman is still regarded as the center of home and family life.”); see also Strauder v. West Virginia, 100 U.S. 303, 310 (1880), abrogated by Taylor v. Louisiana, 419 U.S. 522 (1975); Bradwell v. Illinois, 83 U.S. (16 Wall.) 130, 140–42 (1873).

[xi] Id.

[xii] Id. at 141.

[xiii] In re Goodell, 39 Wis. 232, 244–45 (1875) (“Nature has tempered woman as little for the juridical conflicts of the court room, as for the physical conflicts of the battle field. Womanhood is moulded for gentler and better things.”).

[xiv] Minor v. Happersett, 53 Mo. 58, 64–65 (1873).

[xv] Id.

[xvi] Frontiero v. Richardson, 411 U.S. 677 (1973).

[xvii]  See, e.g., Hyde v. Scyssor (1620) 79 Eng. Rep. 462; Cro. Jac. 538; Ohio & Miss. Ry. v. Cosby, 107 Ind. 32, 34–35 (1886); Birmingham S. Ry. v. Lintner, 141 Ala. 420, 427–28 (1904). See, e.g., Jill Elaine Hasday, Contest and Consent: A Legal History of Marital Rape, 88 Calif. L. Rev. 1373 (2000); Michele Goodwin, Marital Rape: The Long Arch of Sexual Violence Against Women and Girls, 109 Am. J. Int’l L. 326, 328 (2016). Moreover, states typically vindicated the legitimacy of marital rape and courts followed suit. See, e.g., State v. Paolella, 554 A.2d 702 (1989) (finding that Conn. Gen. Stat. § 53a-70(a) and § 53a-70a(a) exonerate married men from the crime of rape if the victim is his wife); see also Michael G. Walsh, Annotation, Criminal Responsibility of Husband for Rape, or Assault to Commit Rape, on Wife, 24 A.L.R. 4th 105 (1983).

[xviii] 410 U.S. 113 (1973).

[xix] Id. at 153.

[xx] Id.

[xxi] Id. at 130–34 (referencing Christian theology).

[xxii] Id.

[xxiii] Id. at 153.

[xxiv] Id. at 130 (stating that even Soranos, the “greatest of the ancient gynecologists,” who personally opposed abortion, “found it necessary to think first of the life of the mother”).

[xxv] See generally Gertrude Jacinta Fraser, African American Midwifery in the South (1998); Sharon A. Robinson, A Historical Development of Midwifery in the Black Community: 1600–1940, 29 J. Nurse-Midwifery 247, 247 (1984) (“By the early 19th century, the male physician had succeeded in replacing midwives among upper- and middle-class white urban American women.”); Keisha La’Nesha Goode, Birthing, Blackness, and the Body: Black Midwives and Experiential Continuities of Institutional Racism (Oct. 1, 2014) (unpublished Ph.D. dissertation, City University of New York; on file with author).

[xxvi] See Horatio R. Storer, On Criminal Abortion in America 56 (1860).

[xxvii] Id.

[xxviii] Michele Goodwin & Meigan Thompson, In the Shadow of the Court: Strategic Federalism and Reproductive Rights, 18 Geo. J. Gender & L. 333, 343–46 (2017).

[xxix] 410 U.S. at 132 (footnotes omitted).

[xxx] Id. at 134.

[xxxi] Id. at 141.

[xxxii] Id. at 140.

[xxxiii] See Esmé E. Deprez, U.S. Abortion Rights Fight, Bloomberg (published Nov. 20, 2013; updated July 7, 2016, 9:18 AM), https://www.bloomberg.com/quicktake/abortion-and-the-decline-of-clinics [https://perma.cc/U6WQ-WHXV].

[xxxiv] See 136 S. Ct. 2292 (2016) (holding that the state of Texas cannot impose restrictions on abortion services that substantially burden women seeking an abortion). In 2017, months after the Supreme Court struck down H.B. 2, a Texas law requiring that abortion providers obtain hospital admitting privileges and surgical center requirements (among other things), Minnesota legislators proposed similar legislation. S.F. 702, H.F. 809, 90th Sess. (Minn. 2017); S.F. 704, H.F. 812, 90th Sess. (Minn. 2017).

[xxxv] Elizabeth G. Raymond & David A. Grimes, The Comparative Safety of Legal Induced Abortion and Childbirth in the United States, 119 Obstetrics & Gynecology 215, 215–19 (2012), http://www.ncbi.nlm.nih.gov/pubmed/22270271 [https://perma.cc/4ZLB-B2J3].

[xxxvi] Whole Woman’s Health v. Hellerstedt, 136 S. Ct. 2292 (2016).

[xxxvii] See, e.g., Manny Fernandez, Abortion Restrictions Become Law in Texas, but Opponents Will Press Fight, N.Y. Times (July 18, 2013), https://www.nytimes.com/2013/07/19/us/perry-signs-texas-abortion-restrictions-into-law.html.

[xxxviii] Whole Woman’s Health, 136 S. Ct. 2311.

[xxxix] Id.

[xl] Id. at 2312.

[xli] Id. at 2313.

[xlii] Id. (internal citation omitted).

[xliii] Id. at 2321-21.

[xliv] Id.

[xlv] S.F. 704, 90th Sess. (Minn. 2017).

[xlvi] La. Rev. Stat. § 40:1061.10(A)(2)(a).

[xlvii] June Med. Servs., L.L.C. v. Gee, 905 F.3d 787, 791 (5th Cir. 2018).

[xlviii] See, e.g., Della Hasselle, Tulane Researcher to Study Why Women in Louisiana Die More Often From Pregnancy Than In Other States, NOLA.Com (Nov. 6, 2018), https://www.nola.com/news/article_8065e057-d591-5d60-b06a-c821abcf7ab2.html.

[xlix] Betsy Shepherd, Homicide is the Leading Cause of Pregnancy Deaths in Louisiana, WWNO (Feb. 4, 2020), https://www.wwno.org/post/homicide-leading-cause-pregnancy-deaths-louisiana#:~:text=Pregnant%20women%20in%20Louisiana%20die,country%20for%20having%20a%20baby.

[l] June Med. Servs. L.L.C. v. Russo, 140 S. Ct. 2103 (2020).

[li] Barry J. McMillion, Cong. Research Serv., R43426, U.S. Circuit and District Court Judges:  Profile of Select Characteristics 21–22 (2017).

[lii] See the Higher Education of the Nation’s Black Women Judges, 16 J. Blacks Higher Educ., Summer 1997, at 108, 108.

[liii] McMillion, supra note 52, at 22.

[liv] Id.

[lv] Id.

[lvi] Id.

[lvii] Id.

[lviii] Dan Balz & Darryl Fears, Some Disappointed Nominee Won’t Add Diversity to Court, Wash. Post (July 21, 2005), http://www.washingtonpost.com/wp-dyn/content/article/2005/07/20/AR2005072002381.html.

[lix] Julie Hirschfeld Davis, Factions Lobby Bush on Court, Balt. Sun (Oct. 3, 2005), https://www.baltimoresun.com/news/bs-xpm-2005-10-03-0510030081-story.html [https://perma.cc/A8C5-L52D]. “As a woman myself,” Laura Bush explained to American Urban Radio, “I hope it will be a woman.” Id.

[lx] 151 Cong. Rec. S8521 (daily ed. July 20, 2005) (statement of Sen. Hutchinson).

[lxi] Sarah Fling, Betty Ford: Activist First Lady, White House Historical Assn, Nov. 5, 2019. https://www.whitehousehistory.org/betty-ford-activist-first-lady.

[lxii] Olympia Snowe, Fighting for Common Ground: How We Can Fix the Stalemate in Congress (New York: Weinstein Books, 2013).

[lxiii] Balz & Fears, supra note 59.

[lxiv] Rich Landers, My Day with Sandra Day O’Connor, Spokesman-Rev. (Oct. 24, 2018, 9:22 AM), http://www.spokesman.com/stories/2018/oct/24/my-sandra-day/.

[lxv] See Paul M. Collins, Jr., Kenneth L. Manning & Robert A. Carp, Gender, Critical Mass, and Judicial Decision Making, 32 Law & Pol’y 260, 275 n.1 (2010).

[lxvi] Balz & Fears, supra note 59.

[lxvii] Gavel Gap, http://gavelgap.org.

[lxviii] Vault & MCCA, 2017 Vault/MCCA Law Firm Diversity Survey 3 (2017), https://www.mcca.com/wp-content/uploads/2017/12/2017-Vault-MCCA-Law-Firm-Diversity-Survey-Report.pdf [https://perma.cc/FL6F-2535] (“For the last 10 years, the Minority Corporate Counsel Association (MCCA) and Vault have gathered detailed breakdowns of law firm populations by race/ethnicity, gender, sexual orientation and disability status across attorney levels—from summer associates hired to partners promoted, from the lawyers who serve on management committees to the attorneys who leave their firms—thus offering comprehensive demographic snapshots of the nation’s leading law firms as well as of the industry as a whole.”).

[lxix] Id. at 12.

[lxx] Id.

[lxxi] Id.

[lxxii] Nearly Half of Practicing Lawyers in Canada Are Women, Catalyst (Oct. 2, 2018), https://www.catalyst.org/knowledge/women-law [https://perma.cc/J9ND-3YGE].

[lxxiii] The Concrete Ceiling:  One Woman at a Time, Diversity & B. Mag., Winter 2017, at 9, 9, http://www.diversityandthebardigital.com/datb/winter_2017/ [https://perma.cc/7L72-A75R].

[lxxiv] Id.

[lxxv] Gavel Gap, supra note 66.

[lxxvi] Tracey E. George & Albert H. Yoon, The Gavel Gap:  Who Sits in Judgment on State Courts? 2, 12 (2016), http://gavelgap.org/pdf/gavel-gap-report.pdf.

[lxxvii] Id. at 3.

[lxxviii] Comm’n on Women in the Profession, A Current Glance at Women in the Law, A.B.A. 4 (Jan. 2018), https://www.americanbar.org/content/dam/aba/administrative/women/
a-current-glance-at-women-in-the-law-jan-2018.authcheckdam.pdf.  See generally Collins, Manning & Carp, supra note 64.

[lxxix] The theory of critical mass refers to a minimum or sufficient percentage of individuals who share ideology or affinity, collectively believe in an ideal, or contribute to an action such that they are able to exert influence, inspire interest in their platforms, produce desired outcomes, and avoid tokenism. See Rosabeth Moss Kanter, Men and Women of the Corporation 206–21 (1977); Drude Dahlerup, From a Small to a Large Minority:  Women in Scandinavian Politics, 11 Scandinavian Pol. Stud. 275, 280 (1988); Rosabeth Moss Kanter, Some Effects of Proportions on Group Life:  Skewed Sex Ratios and Responses to Token Women, 82 Am. J. Soc. 965, 966, 969–77 (1977); see also Pamela Oliver et al., A Theory of the Critical Mass.  I.  Interdependence, Group Heterogeneity, and the Production of Collective Action, 91 Am. J. Soc. 522, 524 (1985) (calling attention to collective action depending on a critical mass).  See generally Mancur Olson, The Logic of Collective Action:  Public Goods and the Theory of Groups (1965).