Feminist Jurisprudence

The feminist political movement began in the nineteenth century with a call for female suffrage. At a convention in Seneca Falls, New York, in 1848, a group of women and men drafted and approved the Declaration of Rights and Sentiments. This document, modeled on the language and structure of the Declaration of Independence, was a bill of rights for women, including the right to vote. Throughout the late 1800s, feminist leaders SUSAN B. ANTHONY and ELIZABETH CADY STANTON were persistent critics of male society's refusal to grant women political and social equality. In the mid-nineteenth century, many state legislatures passed married women's separate property acts. These acts gave women the legal right to retain ownership and control of property they brought into the marriage. Until these enactments a husband was permitted to control all property, which often led to the squandering of a wife's estate. Finally, when the NINETEENTH AMENDMENT to the U.S. Constitution was ratified in 1920, women gained VOTING RIGHTS in the United States.

The modern feminist movement began in the 1960s. In 1966 BETTY N. FRIEDAN, author of The Feminine Mystique (1963), organized the first meeting of the NATIONAL ORGANIZATION FOR WOMEN (NOW). In 1968 NOW staged a protest at the Miss America Pageant. By 1970 Robin Morgan had enough material on feminism to publish a popular anthology, Sisterhood Is Powerful. Women who had become CIVIL RIGHTS and antiwar activists in the 1960s soon turned their attention to gender discrimination and inequality. The decision in ROE V. WADE, 410 U.S. 113, 93 S. Ct. 705, 35 L. Ed. 2d 147 (1973), which defined the choice of ABORTION as a fundamental constitutional right, became a touchstone for feminists who argued that women must have reproductive rights.

To many feminists, Roe v. Wade meant more than the choice to have an abortion. The Court recognized the fundamental right of choice, albeit with limitations, concerning a woman's right to make decisions regarding her body. Maternity, noted the Court, "may force upon the woman a distressful life and future," including psychological, mental, and physical health factors. The holding was a dramatic shift from traditional male-dominated jurisprudence which often sought to protect women in a paternal sense but did not recognize the rights of women to make fundamental choices on matters concerning their own well-being.

Accordingly, feminists have remained staunchly supportive of the Roe v. Wade decision, despite a heated national debate regarding abortion. Nineteen years after Roe, feminists rallied to support the decision when the Supreme Court reconsidered its decision in Planned Parenthood of Southeastern Pennsylvania v. Casey, 505 U.S. 833, 112 S. Ct. 2791, 120 L. Ed. 2d 674 (1992). Although the Court permitted certain restrictions upon abortions, it held intact the fundamental right of choice announced in Roe.

The 1960s and 1970s also saw a revival in the interest in adopting a constitutional amendment to provide greater protection of women's rights than those in the Fifth and Fourteenth Amendments of the U.S. Constitution. The EQUAL RIGHTS AMENDMENT, which was originally conceived in the early 1920s, was introduced to the states in 1972. The text of the amendment read: "Equality of rights under the law shall not be denied or abridged by the United States or by any state on account of sex." Supporters of the amendment believed it would overcome weaknesses in federal statutes and judicial interpretations of the Constitution with regard to the protection of women's rights. The proposal eventually failed to garner the necessary votes from three-fourths of the states.

With the rise of the women's movement and a growing percentage of women attending law school, feminist critiques of the law soon emerged. One criticism concerned the way history was written. According to feminists, traditional historians wrote from the male point of view and excluded that of the female. These historians did not inquire into women's role in making history, structuring society, and living their own lives. Feminists point out that male-written history has created a male bias regarding concepts of human nature, gender potential, and social arrangements.