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Today, the Supreme Court will hear arguments in Whole Woman's Health v. Hellerstedt. That's the case coming out of Texas about the laws the state enacted that could end in the closing of 34 of the state's 40 abortion clinics: one saying a doctor at the facility needs to have admitting privileges at a hospital and one that requires retrofits to make halls wide enough for stretchers. One possible outcome of this case is that states would be allowed to create "trap" laws, making it extremely difficult and/or functionally impossible to get an abortion.
Here, I'll let John Oliver explain:
The case hinges on the idea that women need protection because of their delicate, precious, female condition. And while on the surface this doesn't seem terrible, actually, it has been the basis for sex discrimination for a long time. Maybe all of human history.
This morning, on the public-radio program The Takeaway, Alice Kessler-Harris, author of Out to Work: A History of Wage-Earning Women in the United States, said the Texas case has roots in a Supreme Court ruling that came out of Oregon over 100 years ago, which I first learned about last week while doing research for a post about Oregon's sexist history.
Whole Woman's Health v. Hellerstedt "stems back to 1908 to a rather famous court case called Muller v. Oregon that declared women could, in fact, be protected at work," said Kessler-Harris. "And the reason to protect them, the court says, is because they are they are the mothers of the race or the future mothers of the race."
The idea that women are merely baby vessels, unable to make their own decisions and needing special protection from men, did not disappear after 1908. And even though it is, as Kessler-Harris says, "outmoded since the late 1960s and early 1970s, when the Equal Employment Opportunities Commission made the decision that protected labor legislation for women only was, in fact, illegal or un-Constitutional," the idea that women are the property of men is still "deeply ingrained in American law and culture."
See: The CDC's recent announcement that any woman who could potentially get pregnant should not drink alcohol or the idea that someone needs to ask your dad's permission before they ask you if you want to get married.
According to Kessler-Harris, creating special protection for women is no longer legal, but that doesn't appear to have stopped Texas.
"Though we've changed the laws," she said, "I think there's a little bit of our cultural heritage that still persists in identifying women as weaker, more dependent, less able to support themselves, less able to make judgments for themselves, and it's that bit, I think, that's reflected in the Texas laws."
If the Supreme Court upholds the Texas decision, it would, in a way, be poetic. Because though the guise of the case is that women need protection from bad doctors and unsafe abortions (facts aside: abortions have a lower mortality rate than colonoscopies), the historical subtext is that women need to be protected so their bodies can create babies. This law would mean, has already meant, that many women have no choice but to create babies. Congratulations, patriarchy. You've done it again.
Willamette Week