THE ACLU AND WOMEN’S RIGHTS: PROUD HISTORY, CONTINUING STRUGGLE
For 75 years the ACLU has been in the forefront of the struggle to win full legal equality for women. From its defense of suffragist and birth control pioneer Mary Ware Dennett in the 1920s when the government declared her sex education pamphlet “obscene,” to today’s battle to admit women to The Citadel, a state-funded military academy, the ACLU continues to be vigilant in its defense of women’s rights. The ACLU advocated women’s rights long before the feminist revival of the 1960s. Suffragists and othe r women social reformers and political activists — among them, Jane Addams, Mary Ware Dennett, Crystal Eastman and Jeannette Rankin — were instrumental in the founding of the organization in 1920.
Since its founding, the ACLU has argued more women’s rights cases before the United States Supreme Court than any other organization and has done more work to promote women’s liberty and equality than many organizations devoted exclusively to that goal. The ACLU was the first national organization to argue for abortion rights before the Supreme Court, and has been the principal defender of those rights since 1973, when the U.S. Supreme Court recognized the constitutional right to terminate a pregnancy in Roe v. Wade.
One might even describe the ACLU as “prematurely feminist.” In the 1930s, the ACLU fought for the right of Connecticut schoolteachers on maternity leave to be reinstated in their jobs following the birth of their babies. Throughout the 1940s, the ACLU advocated equal pay for equal work and lobbied against federal and state laws that made it a crime to use or sell contraceptives or birth control information. During this decade, the ACLU also challenged a Massachusetts law that prohibited married women from teaching in public schools. During the 1950s, an era that was decidedly unfriendly to women’s and civil rights, the ACLU successfully challenged a state law that made it a crime for a white woman to bear the child of a black man. In the 1960s, the ACLU intensified its activism on women’s issues, attacking the exclusion of women from juries and petitioning Congress to enact and enforce laws barring discrimination against women.
In 1970, the ACLU endorsed the Equal Rights Amendment and declared women’s rights its top priority. The following year, the ACLU established its national Women’s Rights Project to seek equality for women through litigation. In its first case, Reed v. Reed, which challenged the automatic preference for men over women in the context of estate law, the Supreme Court set a precedent upon which many significant later cases would rest when it ruled that sex-based classifications violated the Equal Protection Clause of the Fourteenth Amendment. Under the direction of Professor Ruth Bader Ginsburg, the ACLU’s women’s rights docket swelled to more than 300 sex discrimination cases during that decade.
Together with the ACLU’s 53 affiliates, the Women’s Rights Project has brought cases that ensure that women have equal rights in virtually every realm of life — in the workplace, in education, in the insurance industry, in the criminal justice system, in the family, and in access to public accomodations, clubs and government benefits.
In 1974, in an effort to concentrate resources and expertise, the ACLU also created a national Reproductive Freedom Project to protect the fundamental constitutional right of reproductive choice that had been recognized the previous year in Roe v. Wade. Since its inception, the Reproductive Freedom Project has worked through litigation and legislative advocacy to defeat federal and state assaults on reproductive choice. In all its efforts, the Project’s mission has been to ensure that the decision about childbearing is informed, meaningful and without government coercion. Looking to federal and state constitutional theories, the Project has challenged the wide array of government restrictions on access to abortion, including waiting periods, parental consent requirements, and restrictions on funding for poor women.
The Reproductive Freedom Project has also played a critical role in defending comprehensive sex education programs and condom availability programs; in challenging employment discrimination against women based on their choice to have an abortion; and in ensuring that government does not interfere with women’s autonomy because of pregnancy. Most recently, with the escalating campaign of harassment and violence against abortion providers, including murder, the ACLU fought for the passage of the Freedom of Access to Clinic Entrances Act (FACE).
A final measure of the ACLU’s commitment to women’s rights can be seen in its own employment policies. In 1980, recognizing that women were still underrepresented in higher level positions, the ACLU established the goal of hiring women into 50 percent of all job categories. Today, 4 of the 7 top national executive staff positions are held by women — the Directors of the Washington Legislative Office, Administration and Finance, Development and Public Education are all women. In addition, 8 of 12 national projects and regional offices are directed by women, including Arts Censorship, Capital Punishment, Women’s Rights and Reproductive Freedom. Roughly half of the ACLU’s 53 affiliate offices are directed by women. And 33 women sit on the ACLU’s 81-member national Board of Directors. In 1991, Nadine Strossen was elected president of the national board, the first woman ever to hold that office.
HIGHLIGHTS OF THE ACLU’S RECORD ON WOMEN’S RIGHTS AND REPRODUCTIVE FREEDOM
1920s — The ACLU successfully appealed the obscenity conviction of one of its founding mothers, suffragist and sex educator Mary Ware Dennett. Her offense: the distribution of her pamphlet, “The Sex Side of Life” — a sex education primer for adolescents.
1937 — The ACLU fought for the right of Connecticut schoolteachers on maternity leave to be reinstated in their jobs following the birth of a child.
1940s — The ACLU established a Committee on Discrimination Against Women in Employment (renamed the Committee on Women’s Rights) to advocate for legislation guaranteeing equal pay for equal work and opposition to laws prohibiting the use of contraceptives and the distribution of birth control information.
1950s — The ACLU lobbied to secure tax deductions for child care, arguing that providing such deductions to married couples only if the husband was incapable of self-support constituted “a denial of civil liberties to women.”
1964 — The ACLU organized the first campaign to repeal New York’s abortion law.
1965 — The ACLU filed a friend of the court brief in the landmark case of Griswold v. Connecticut, in which the Supreme Court struck down a state prohibition against the prescription, sale or use of contraceptives, even for married couples.
1966 — The ACLU won a major legal victory in White v. Crook, a challenge to Alabama’s exclusion of women from criminal juries.
1967 — The ACLU’s National Board affirmed a woman’s constitutional right to abortion and called for the repeal of all criminal abortion laws.
1970 — The ACLU was instrumental in persuading New York State to repeal all statutory restrictions on abortion, the first such action in the country by a state legislature.
The ACLU National Board voted to support the Equal Rights Amendment, arguing, “Since the 14th Amendment has been available to the Supreme Court for 102 years and still has not been applied against sex discrimination, the ACLU believes it is time to fashion a new method … designed specifically to end discrimination against women…”.
1971 — Professor Ruth Bader Ginsburg of Columbia Law School created the ACLU’s national Women’s Rights Project. Ginsburg explained that she deliberately chose to work with the ACLU because of the interconnection between civil rights and civil liberties, saying: “I wanted to be a part of a general human rights agenda. Civil liberties are an essential part of the overall human rights concern — the equality of all people and the ability to be free.”
The ACLU argued the first abortion case to reach the U.S. Supreme Court. In United States v. Vuitch a doctor appealed his conviction for performing an illegal abortion. Although the Court upheld the constitutionality of the statute under which he was convicted, it expanded the concept of “life and health of the woman” to include psychological well-being, and ruled that the prosecution had to prove that the abortion was not necessary for a woman’s physical or mental health.
In Reed v. Reed, the first ACLU Women’s Rights Project case to reach the Supreme Court, the Justices for the first time declared sex-based classifications unconstitutional under the Equal Protection Clause of the Fourteenth Amendment.
1973 — ACLU President Norman Dorsen was a member of the team of lawyers representing the plaintiffs in the landmark abortion rights case of Roe v. Wade, in which the Supreme Court ruled that a woman had a constitutional right to terminate a pregnancy. The ACLU also argued Roe’s companion case, Doe v. Bolton, in which the Court held that the judgment whether an abortion was “necessary” should be entrusted to the physician, whose decision should be made in light of all factors relevant to a woman’s well-being.
In Frontiero v. Richardson, the ACLU persuaded the Supreme Court to invalidate a requirement that women in the military prove their husbands’ dependency in order to get medical and housing benefits, while men received them automatically for their wives.
1974 — The ACLU assigned national staff to work full-time for the ratification of the Equal Rights Amendment.
The ACLU created its national Reproductive Freedom Project.
1975 — In Taylor v. Louisiana, the Supreme Court ruled in favor of the ACLU, deciding that a Louisiana law exempting women from juries violated a woman’s Sixth Amendment right to a jury representative of the community.
In Bigelow v. Virginia, an ACLU case, the Supreme Court ruled that states could not ban advertising by abortion clinics.
In Weinberger v. Wiesenfeld, the Supreme Court agreed with the ACLU that a provision of the social security law that awarded benefits to widows but not to widowers responsible for dependent children was unconstitutional.
1976 — The ACLU participated in Planned Parenthood v. Danforth, in which the Supreme Court addressed the constitutionality of a state statute that restricted access to abortion in many ways. Most significantly, the Court ruled that states could not ban medically safe abortion techniques or give husbands or parents absolute veto power over abortions.
1977 — After Congress passed the Hyde Amendment to the Social Security Act, which severely restricted federal funding of abortions for poor women, the ACLU National Board declared that its top priority was to establish the right of all women to obtain abortions and launched a national Campaign for Choice.
The ACLU won Califano v. Goldfarb in which the Supreme Court invalidated a provision of the Social Security Act awarding automatic widow’s benefits but denying widower’s benefits unless the male spouse had received at least half of his support from his deceased wife.
1978 — The ACLU, in coalition with other women’s rights organizations, successfully lobbied for passage of the Pregnancy Discrimination Act, which provided that pregnancy-based discrimination constitutes gender discrimination under Title VII of the Civil Rights Act.
1979 — The ACLU won Duren v. Missouri in which the Supreme Court invalidated a state law that provided automatic jury exemption for women who so requested, but no equivalent exemption for men.
1981 — In Rostker v. Goldberg, the ACLU challenged the male-only draft, arguing that it violated the equal protection clause. Although the Supreme Court rejected this challenge, the ACLU’s efforts contributed to the gradual transformation of public opinion concerning the role of women in the military.
1983 — In a victory against “the new protectionism” used by certain industries to shut women out of higher paying jobs, the ACLU settled a major lawsuit against American Cyanimid in which the company abandoned its policy of excluding all fertile women from certain positions that exposed them to toxic substances unless they provided proof of sterilization.
In City of Akron v. Akron Center for Reproductive Health, the ACLU scored an important victory when the Supreme Court barred states from requiring physicians to give women information desginged to dissuade them from having abortions, from imposing a 24-hour waiting period after the signing of the consent form, and from requiring that all second trimester abortions be performed in a hospital.
1984 — The ACLU settled a lawsuit with TIAA-CREF, the fund that provides pensions to university employees, ending its practice of requiring women employees to contribute the same amount of money as men while receiving substantially less money upon retirement.
1986 — The ACLU participated in Thornburgh v. American College of Obstetricians & Gynecologists, in which the Court struck down a state statute requiring doctors to use abortion techniques that maximized the chance of fetal survival, even when such techniques increased the medical risks to the pregnant woman’s life or health.
1987 — The ACLU won Board of Directors of Rotary International v. Rotary Club, in which the Supreme Court ruled that men’s business and professional clubs could not avoid compliance with a California state barring discrimination against women by asserting their First Amendment right of association.
1989 — The ACLU brought the case of Elaine W. v. North General Hospital, the first challenge in the country to the widespread practice of denying pregnant alcohol and drug dependent women treatment.
The challenge to Missouri’s omnibus anti-abortion statute brought by the ACLU and others in Webster v. Reproductive Health Services, before a newly constituted Supreme Court which no longer had a pro-choice majority, was not successful in blocking many of the statute’s anti-choice provisions. Contrary to our worst fears, however, the Court did not use this occasion to overrule Roe v. Wade.
The ACLU won a favorable decision in federal court in the case of Sharif v. New York State Department of Education, a challenge to the exclusive reliance by the state on the Scholastic Aptitude Test (SAT) in the award of merit scholarships. The court agreed with the ACLU that the test had a discriminatory impact on young women in violation of federal law.
1990 — The ACLU won a partial victory in Hodgson v. Minnesota, in which the Supreme Court struck down a portion of a state statute requiring minor women to notify both parents of their decision to obtain an abortion, even if the parents were absent, divorced or never married, without providing the alternative of a court hearing (judicial bypass).
1991 — The ACLU, working in coalition with women’s and civil rights organizations, successfully lobbied for the passage of the Civil Rights Act of 1991. This law overturned the Supreme Court’s 1989 rulings in Wards Cove v. Antonio and several other cases that made it much more difficult for plaintiffs to prove employment discrimination under Title VII of the Civil Rights Act of 1964.
The ACLU participated in the landmark case of UAW v. Johnson Controls, in which the Supreme Court threw out a company “fetal protection policy” which excluded all fertile women, regardless of their childbearing intentions, from certain higher paying jobs where they might be exposed to lead. The Court agreed that in choosing to “protect” women rather than improving working conditions for all employees, the company had practiced sex discrimination.
Law professor Nadine Strossen was elected president of the ACLU, the first woman to hold that position.
1992 — As in 1989, the ACLU fought to hold the line in the case of Planned Parenthood v. Casey. In that case the Court upheld a Pennsylvania law that imposed onerous restrictions on the right to abortion. The Court weakened, but did not overrule, Roe v. Wade.
1993 — The ACLU represented Shannon Faulkner in her sex discrimination suit against The Citadel, an all-male, state-funded military academy in South Carolina. In January 1994, Faulkner became the first female undergraduate to attend classes in The Citadel’s day program.
1994 — The ACLU played a key role in crafting The Freedom of Access to Clinic Entrances Act (FACE) which was signed into law by President Clinton on May 26, 1994. The new law provides criminal and civil penalties against the use of force, threats of force, physical obstruction or property damage aimed at those obtaining or providing reproductive health services including abortions.
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