This is a great read, thanks! Depressing, but great. Sadly, much of the conservative base has not yet moved beyond "women are property." I blame a whole lot of Christian nationalism.
This is a great read, thanks! Depressing, but great. Sadly, much of the conservative base has not yet moved beyond "women are property." I blame a whole lot of Christian nationalism.
This is why substituting the identity of the fetus for that of the husband is such a compelling reframing of coverture. It takes an obviously retrograde legal fiction—that a woman does not have a stable, independent legal identity—and retrofits it with a more current sense of morality in order to render it palatable. Now, instead of losing her legal identity to her husband, a woman loses her legal identity to her fetus. The pregnant person simply vanishes.
The history is somewhat interesting, but this still seems like a bad take to me, basically just a fan theory. I find it highly unlikely that a court would claim that women don’t have legal rights...
The history is somewhat interesting, but this still seems like a bad take to me, basically just a fan theory. I find it highly unlikely that a court would claim that women don’t have legal rights or that pregnant women have fewer rights than non-pregnant women. The evidence cited is weak. A law doesn’t have to reaffirm rights that are clearly specified by a different law.
No law requires anyone except a pregnant woman to donate an organ for another person's use. Giving birth is a medically risky event that kills and disables women every year. Taking away the right...
No law requires anyone except a pregnant woman to donate an organ for another person's use.
Giving birth is a medically risky event that kills and disables women every year. Taking away the right to opt out treats pregnant women differently than others with regard to the right to life.
Yes, I agree. In practice, insisting on a “right to life” for the fetus severely interferes with the rights of pregnant women. I think that can be seen as creating a conflict between legal rights,...
Yes, I agree. In practice, insisting on a “right to life” for the fetus severely interferes with the rights of pregnant women. I think that can be seen as creating a conflict between legal rights, though? A pregnant woman doesn’t lose rights in a conflict with any other party, but it puts them in a weird “siamese twin” situation, legally speaking.
State anti-abortion laws go further than that, though, when they interfere with a court’s ability to find a compromise between the rights of both parties, forbidding even things like an abortion to save the life of the mother. This doesn’t seem much like taking conflicting legal rights into account at all.
They're discussing legal frameworks, the kind of hidden assumptions that have been passed down through centuries (millenia?), the foundation of the USA's being common law that originates as far...
They're discussing legal frameworks, the kind of hidden assumptions that have been passed down through centuries (millenia?), the foundation of the USA's being common law that originates as far back as 1066.
I think its pretty solid, after all the primary take on restricting abortion is that the fetus's rights are more important than the pregnant person's.
Are the state laws with severe restrictions on abortions rights-based at all? Seems like they’re forbidding abortions by passing a law. What does that have to do with legal rights or common law?
Are the state laws with severe restrictions on abortions rights-based at all? Seems like they’re forbidding abortions by passing a law. What does that have to do with legal rights or common law?
So, if you don't have an understanding of what common law is, that's probably why you're not understanding the argument being made here. Common Law is this body of precedent that goes back...
So, if you don't have an understanding of what common law is, that's probably why you're not understanding the argument being made here. Common Law is this body of precedent that goes back centuries, prior to the US being formed.
I do, actually, have a basic understanding of what common law is. I’m not sure you understand the relationship between common law and written law? Common law decisions don’t override laws passed...
I do, actually, have a basic understanding of what common law is. I’m not sure you understand the relationship between common law and written law? Common law decisions don’t override laws passed by legislatures, though they might be used to interpret them. The Supreme Court, at least in theory, can only override laws based on another written law - the Constitution. That’s why we talk about “constitutional rights” versus other implicit rights that might be overridden by passing laws. [1]
[1] Though, the nineth amendment is a wildcard that doesn’t seem to be used much.
Here's your evidence that courts have supported the proposition that pregnant women have fewer rights than non-pregnant women, and that potentially pregnant women have been held to have fewer...
Here's your evidence that courts have supported the proposition that pregnant women have fewer rights than non-pregnant women, and that potentially pregnant women have been held to have fewer rights in general.
I'm familiar with historical legal frameworks for health and safety regulation as applied to women in the workplace. For many years, it was generally acceptable to bar female employees from specific occupations and job roles because they might become pregnant and thereby expose their offspring to risks, or that they're generally vulnerable to increased risk under conditions tolerable for men. A 1991 U.S. Supreme Court decision, United Autoworkers Union vs. Johnson Controls, finally established that private sector "fetal protection" policies could not be used to discriminate against women. [This is another labor right that's at risk in the current U.S. election.]
The same carcinogenic and mutagenic chemicals or other hazards at "acceptable" levels have been proven dangerous to men in these roles. The effect was discriminatory against women, and delayed men from receiving protections they otherwise should have received. For instance, hormone-minic reproductive hazards to women and embryos like bisphenol A are also found to interfere with spermatogenesis and raise risks of male reproductive cancer at the same levels. Further info here (excellent review article). PDF warning.
Another little heralded Biden administration win, the Pregnant Workers Fairness Act, was needed to establish that pregnant employees are entitled to the same workplace accommodations as any other worker with similar restrictions (e.g. limits on prolonged standing, lifting, etc.). [This also implicitly protects non-pregnant workers' entitlements.]
It's not simply that pregnant women will have fewer rights than non-pregnant women, but that women as a group have had their rights restricted on the grounds that they are in need of special protection for gendered reasons. And that men are less protected, also for gendered reasons. Forced maternity also implies forced paternity - a diminution of men's freedom which has been little discussed on the current right wing.
State restrictions on women's rights are already de facto coverture law in cases where a person who's addicted to drugs becomes pregnant. While it could be argued that they're in a state of mental incapacity, the emphasis on punishment rather than treatment in many jurisdictions gives the lie to the proposition that the mother's good is an equal consideration.
Edit: There's a really important legal essay from shortly after the Dobbs decision which analyses the Supreme Court's dissents in explicit terms of state coverture.
Thanks, that's very interesting and a good link. From that essay: ... This seems like a pretty good argument in favor of a common-law right to abortion, though sadly not upheld by the courts or...
Thanks, that's very interesting and a good link. From that essay:
Life has never been an absolute value in our legal tradition. People are allowed—even justified—to take someone else’s life in self-defense or in defense of others. The castle doctrine lets people use deadly force to repel intruders into their homes and “Stand Your Ground” laws allow people to kill an intruder without any need to retreat or deescalate the situation. Concomitantly, there is no recognized duty to rescue or to provide life-saving care.
...
If a man’s home is his castle (in which he can pull up the drawbridge and repel invaders with molten lead if he so chooses), it is a foundational precept of Western thought that a person’s body is his most inviolable property. One of my favorite formulations of the idea is by the 17th century pamphleteer, Richard Overton, who wrote, “to every individuall in nature is given an individuall property by nature, not to be invaded or usurped by any . . . for every one as he is himselfe, so he hath a selfe propriety, else could not be himselfe.” So why does a woman not have “a selfe propriety, else could not be herselfe”?
This seems like a pretty good argument in favor of a common-law right to abortion, though sadly not upheld by the courts or recognized by many state laws. Passing state constitutional amendments will be a better guarantee.
Regarding workplace discrimination, talking about it in terms of "equal rights" is what we're used to, but on second thought, rights language is a bit of an odd fit. There is an individual right to vote, but usually no legal right to a job? We use rights language to forbid certain discriminatory hiring practices. Is that a sort of aggregate rather than individual right? But a right to "reasonable accommodation" once you have a job is a more individual thing.
A law doesn’t have to reaffirm rights, but it does have to have a constitutional basis for restricting them, especially if it is apportioning them between parties. Your use if the term “fan...
A law doesn’t have to reaffirm rights, but it does have to have a constitutional basis for restricting them, especially if it is apportioning them between parties.
Your use if the term “fan theory” diminishes the point of the article. The thesis may be ultimately rejected (as the saying goes, constitutional law is what you and four friends on the supreme court say it is), however the reasoning here is sound that state abortion prohibition statutes parallel the coverture laws of yore (since found unconstitutional).
Well, I wasn't too impressed with it. But I think I was reacting to specific language that seemed exaggerated. Except, that isn't what happens? For example, if pregnant women in certain states...
Well, I wasn't too impressed with it. But I think I was reacting to specific language that seemed exaggerated.
When the state recognizes the legal interest of the fetus but not that of the pregnant person, it is subsuming the identity of the pregnant person into that of her fetus. From a legal standpoint, when a person becomes pregnant, she simply stops existing. The only thing that exists is her fetus.
Except, that isn't what happens? For example, if pregnant women in certain states lost the rights to any property they own, as sometimes happened historically when women got married, that would be pretty radical and I'm sure we would have heard about it? So it doesn't seem to be true that pregnant women cease to be legal entities?
However, the legal situation for medical care for pregnant women in these states is quite dire. Arguably it's sorta like coverture. And with any analogy, we're making comparisons between things that are in some ways alike and in other ways different, so I guess I should just let it go.
I agree the paragraph you quoted tends toward sensationalism. Where you might be missing is that the article is not speaking to property interests but rather to the liberty interest. That’s the...
I agree the paragraph you quoted tends toward sensationalism.
Where you might be missing is that the article is not speaking to property interests but rather to the liberty interest. That’s the parallel-in coverture of old, it was property interests that were prime, here it is the liberty to take care of your own body. In both cases the state is subsuming your interests to another person.
I think it would have been a better argument if they didn't frame it as "legal theory behind..." because to me, a layperson, that makes it sound like the anti-abortion camp did use this as the...
I think it would have been a better argument if they didn't frame it as "legal theory behind..." because to me, a layperson, that makes it sound like the anti-abortion camp did use this as the legal theory. Did they? The article makes no note of that. If we want to say it's comparable to coverture in that it reduces rights of one individual in order to protect the rights of another, then isn't that true for many laws and rights?
Ignoring the really stupid logical leaps, the core argument did still feel like a reach to me in that it's true, but so many things are similar if you widen the scope enough for comparison that it's not that interesting of a comparison. When a wartime draft happens, a man's rights are reduced for the benefit of the rest of society, but you wouldn't call coverture the legal theory behind that..
pro-choice commenter here. I dislike the argument, not the stance.
I think it's because it's very specifically a single person that is gaining "control" or "precedence" over the woman's civil rights instead of, for example the state in cases of the draft, or...
I think it's because it's very specifically a single person that is gaining "control" or "precedence" over the woman's civil rights instead of, for example the state in cases of the draft, or incarceration.
I haven't read through all of these fully yet, and they may cite each other, but it feels like less of a logical leap to me than you find it. Needing a husband's permission to get sterilized is still a common experience by common medical practice, though not law. State lawmakers have been putting "educational" requirements in front of people seeking abortions for a long time, even when that required education from a doctor is false. It's a lot that treats the person (who are perceived as women by those involved even if they're not) as if they're less than competent in making their own decisions and then ultimately, with bans, that they cannot be allowed bodily autonomy due to another.
I've along advocated that it doesn't matter whether a fetus is person or not, we don't allow individual people to infringe on other people's bodily autonomy in other circumstances. But we did with coverture.
Thanks for the links, I'll try to give those a read after work. Even if/when abortion rights are restored, there will be some amount of "coverture". I don't think the state or society at large...
Thanks for the links, I'll try to give those a read after work.
Even if/when abortion rights are restored, there will be some amount of "coverture". I don't think the state or society at large would be fine with abortion at T-1 day, for example.
Abortion at that stage is birth, if the fetus is viable it's not like doctors go out of their way to kill it. Late term abortion is almost always for the saving of the life of the mother or a...
Abortion at that stage is birth, if the fetus is viable it's not like doctors go out of their way to kill it. Late term abortion is almost always for the saving of the life of the mother or a fetus that will not be able to survive and be born (often dying). They're so rare that banning them is truly cruel.
With induced births and C-sections we do T-1 all the time. We just don't call it abortion.
The state and society at large are absolutely fine with inducing at 39 weeks, which restores the bodily integrity of the person experiencing the pregnancy as much as anything can at that point.
The state and society at large are absolutely fine with inducing at 39 weeks, which restores the bodily integrity of the person experiencing the pregnancy as much as anything can at that point.
From the fetal rights wikipedia page The entire foundation of modern abortion bans rests on this idea of fetal personhood, and the idea that its rights trumps the rights of the mother/father. I'd...
every prenatal right should be weighed against the rights of a pregnant mother and, where relevant, against rights of a father
The entire foundation of modern abortion bans rests on this idea of fetal personhood, and the idea that its rights trumps the rights of the mother/father. I'd be hard pressed to argue this isn't coverture (especially in the case of the pregnant mother) unless I had an ideological reason to sidestep it, given that it's generally considered a bad thing (for good reason).
I don't see where you and I are in disagreement here? My stance is that "X's rights trump Y's rights" is not interesting enough to draw a comparison to coverture. So much of society is in that...
I don't see where you and I are in disagreement here? My stance is that "X's rights trump Y's rights" is not interesting enough to draw a comparison to coverture. So much of society is in that format. In fact, it's an older legal concept than coverture. So what makes this more like coverture than the wartime draft scenario?
This is a great read, thanks! Depressing, but great. Sadly, much of the conservative base has not yet moved beyond "women are property." I blame a whole lot of Christian nationalism.
The history is somewhat interesting, but this still seems like a bad take to me, basically just a fan theory. I find it highly unlikely that a court would claim that women don’t have legal rights or that pregnant women have fewer rights than non-pregnant women. The evidence cited is weak. A law doesn’t have to reaffirm rights that are clearly specified by a different law.
No law requires anyone except a pregnant woman to donate an organ for another person's use.
Giving birth is a medically risky event that kills and disables women every year. Taking away the right to opt out treats pregnant women differently than others with regard to the right to life.
Yes, I agree. In practice, insisting on a “right to life” for the fetus severely interferes with the rights of pregnant women. I think that can be seen as creating a conflict between legal rights, though? A pregnant woman doesn’t lose rights in a conflict with any other party, but it puts them in a weird “siamese twin” situation, legally speaking.
State anti-abortion laws go further than that, though, when they interfere with a court’s ability to find a compromise between the rights of both parties, forbidding even things like an abortion to save the life of the mother. This doesn’t seem much like taking conflicting legal rights into account at all.
They're discussing legal frameworks, the kind of hidden assumptions that have been passed down through centuries (millenia?), the foundation of the USA's being common law that originates as far back as 1066.
I think its pretty solid, after all the primary take on restricting abortion is that the fetus's rights are more important than the pregnant person's.
They are also not the first to talk about this relationship.
Are the state laws with severe restrictions on abortions rights-based at all? Seems like they’re forbidding abortions by passing a law. What does that have to do with legal rights or common law?
So, if you don't have an understanding of what common law is, that's probably why you're not understanding the argument being made here. Common Law is this body of precedent that goes back centuries, prior to the US being formed.
Some useful links: https://www.investopedia.com/terms/c/common-law.asp
Crash Course
Another Video That may or may not have enough explanation.
I do, actually, have a basic understanding of what common law is. I’m not sure you understand the relationship between common law and written law? Common law decisions don’t override laws passed by legislatures, though they might be used to interpret them. The Supreme Court, at least in theory, can only override laws based on another written law - the Constitution. That’s why we talk about “constitutional rights” versus other implicit rights that might be overridden by passing laws. [1]
[1] Though, the nineth amendment is a wildcard that doesn’t seem to be used much.
Nope I'm quite well versed. I just misunderstood your question.
Okay, fair enough.
Here's your evidence that courts have supported the proposition that pregnant women have fewer rights than non-pregnant women, and that potentially pregnant women have been held to have fewer rights in general.
I'm familiar with historical legal frameworks for health and safety regulation as applied to women in the workplace. For many years, it was generally acceptable to bar female employees from specific occupations and job roles because they might become pregnant and thereby expose their offspring to risks, or that they're generally vulnerable to increased risk under conditions tolerable for men. A 1991 U.S. Supreme Court decision, United Autoworkers Union vs. Johnson Controls, finally established that private sector "fetal protection" policies could not be used to discriminate against women. [This is another labor right that's at risk in the current U.S. election.]
The same carcinogenic and mutagenic chemicals or other hazards at "acceptable" levels have been proven dangerous to men in these roles. The effect was discriminatory against women, and delayed men from receiving protections they otherwise should have received. For instance, hormone-minic reproductive hazards to women and embryos like bisphenol A are also found to interfere with spermatogenesis and raise risks of male reproductive cancer at the same levels. Further info here (excellent review article). PDF warning.
Another little heralded Biden administration win, the Pregnant Workers Fairness Act, was needed to establish that pregnant employees are entitled to the same workplace accommodations as any other worker with similar restrictions (e.g. limits on prolonged standing, lifting, etc.). [This also implicitly protects non-pregnant workers' entitlements.]
It's not simply that pregnant women will have fewer rights than non-pregnant women, but that women as a group have had their rights restricted on the grounds that they are in need of special protection for gendered reasons. And that men are less protected, also for gendered reasons. Forced maternity also implies forced paternity - a diminution of men's freedom which has been little discussed on the current right wing.
State restrictions on women's rights are already de facto coverture law in cases where a person who's addicted to drugs becomes pregnant. While it could be argued that they're in a state of mental incapacity, the emphasis on punishment rather than treatment in many jurisdictions gives the lie to the proposition that the mother's good is an equal consideration.
Edit: There's a really important legal essay from shortly after the Dobbs decision which analyses the Supreme Court's dissents in explicit terms of state coverture.
Thanks, that's very interesting and a good link. From that essay:
...
This seems like a pretty good argument in favor of a common-law right to abortion, though sadly not upheld by the courts or recognized by many state laws. Passing state constitutional amendments will be a better guarantee.
Regarding workplace discrimination, talking about it in terms of "equal rights" is what we're used to, but on second thought, rights language is a bit of an odd fit. There is an individual right to vote, but usually no legal right to a job? We use rights language to forbid certain discriminatory hiring practices. Is that a sort of aggregate rather than individual right? But a right to "reasonable accommodation" once you have a job is a more individual thing.
A law doesn’t have to reaffirm rights, but it does have to have a constitutional basis for restricting them, especially if it is apportioning them between parties.
Your use if the term “fan theory” diminishes the point of the article. The thesis may be ultimately rejected (as the saying goes, constitutional law is what you and four friends on the supreme court say it is), however the reasoning here is sound that state abortion prohibition statutes parallel the coverture laws of yore (since found unconstitutional).
Well, I wasn't too impressed with it. But I think I was reacting to specific language that seemed exaggerated.
Except, that isn't what happens? For example, if pregnant women in certain states lost the rights to any property they own, as sometimes happened historically when women got married, that would be pretty radical and I'm sure we would have heard about it? So it doesn't seem to be true that pregnant women cease to be legal entities?
However, the legal situation for medical care for pregnant women in these states is quite dire. Arguably it's sorta like coverture. And with any analogy, we're making comparisons between things that are in some ways alike and in other ways different, so I guess I should just let it go.
I agree the paragraph you quoted tends toward sensationalism.
Where you might be missing is that the article is not speaking to property interests but rather to the liberty interest. That’s the parallel-in coverture of old, it was property interests that were prime, here it is the liberty to take care of your own body. In both cases the state is subsuming your interests to another person.
Mirror: https://archive.is/pT4t1
I think it would have been a better argument if they didn't frame it as "legal theory behind..." because to me, a layperson, that makes it sound like the anti-abortion camp did use this as the legal theory. Did they? The article makes no note of that. If we want to say it's comparable to coverture in that it reduces rights of one individual in order to protect the rights of another, then isn't that true for many laws and rights?
Ignoring the really stupid logical leaps, the core argument did still feel like a reach to me in that it's true, but so many things are similar if you widen the scope enough for comparison that it's not that interesting of a comparison. When a wartime draft happens, a man's rights are reduced for the benefit of the rest of society, but you wouldn't call coverture the legal theory behind that..
I think it's because it's very specifically a single person that is gaining "control" or "precedence" over the woman's civil rights instead of, for example the state in cases of the draft, or incarceration.
I found some other articles coming from the same angle, so this is not a new argument:
Virginia Law Review
PubMed - discussing welfare as well as abortion
Bolts Mag
I haven't read through all of these fully yet, and they may cite each other, but it feels like less of a logical leap to me than you find it. Needing a husband's permission to get sterilized is still a common experience by common medical practice, though not law. State lawmakers have been putting "educational" requirements in front of people seeking abortions for a long time, even when that required education from a doctor is false. It's a lot that treats the person (who are perceived as women by those involved even if they're not) as if they're less than competent in making their own decisions and then ultimately, with bans, that they cannot be allowed bodily autonomy due to another.
I've along advocated that it doesn't matter whether a fetus is person or not, we don't allow individual people to infringe on other people's bodily autonomy in other circumstances. But we did with coverture.
Thanks for the links, I'll try to give those a read after work.
Even if/when abortion rights are restored, there will be some amount of "coverture". I don't think the state or society at large would be fine with abortion at T-1 day, for example.
Abortion at that stage is birth, if the fetus is viable it's not like doctors go out of their way to kill it. Late term abortion is almost always for the saving of the life of the mother or a fetus that will not be able to survive and be born (often dying). They're so rare that banning them is truly cruel.
With induced births and C-sections we do T-1 all the time. We just don't call it abortion.
The state and society at large are absolutely fine with inducing at 39 weeks, which restores the bodily integrity of the person experiencing the pregnancy as much as anything can at that point.
From the fetal rights wikipedia page
The entire foundation of modern abortion bans rests on this idea of fetal personhood, and the idea that its rights trumps the rights of the mother/father. I'd be hard pressed to argue this isn't coverture (especially in the case of the pregnant mother) unless I had an ideological reason to sidestep it, given that it's generally considered a bad thing (for good reason).
I don't see where you and I are in disagreement here? My stance is that "X's rights trump Y's rights" is not interesting enough to draw a comparison to coverture. So much of society is in that format. In fact, it's an older legal concept than coverture. So what makes this more like coverture than the wartime draft scenario?