Commentary Law and Policy

The Supreme Court Has Decided Women’s Rights Aren’t Human Rights

Christine Adams

Monday’s Hobby Lobby ruling is one more piece of evidence that we still do not value women’s rights in the same way that we value “universal rights”—that is, rights that pertain to men.

Read more of our coverage on the Hobby Lobby and Conestoga Wood cases here.

“The purpose of this class is not to bemoan the historical oppression of women. Most women—indeed most people throughout history—have been oppressed. We are going to examine the particular historical circumstances that shape attitudes about gender, gender roles, and relations between the sexes.”

I open my classes in gender and family history with that standard disclaimer. It is too easy in a history class to get bogged down in the outrage students naturally feel about the treatment of girls and women in the past. I encourage them to maintain some intellectual distance, to try to understand the historical context that would have led men—and most women—to consider the legal, economic, and intellectual marginalization of women “natural.”

I think that right now, however, I would find it difficult to maintain my professorial composure if I were teaching that particular class. Right now, I identify too strongly with my female ancestors who were told that “universal suffrage” didn’t apply to them. I identify with the women whose husbands deserted them but who lost custody of their children anyway, because the father’s property interests in his children superseded their maternal rights. I identify with the women who lacked the legal right to deny their husbands access to their bodies, but could not legally access birth control (illegal in most countries until the 1960s or even later), even though continued pregnancies threatened their health, economic viability, and sanity. I identify with all the women throughout history who have been told that their claim to basic rights—to vote, to their children, to control their own bodies—is less compelling because they are not men. Right now, I feel genuine rage.

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Monday, five male justices on the Supreme Court decided that the reproductive rights of women were trumped by a corporation’s specious claims of “religious liberty” and “freedom of conscience.” The owners of Hobby Lobby—a company that employs 13,000 people—believe that it would be sinful to provide government-mandated access to certain forms of birth control that they, with no scientific basis whatsoever, determined were abortifacients.

Make no mistake: When we deny health coverage for contraception, we are effectively denying the right to access for some women. The five male justices found this appeal to conscience compelling for reasons that we can only assume are related to the fact that birth control is the concern primarily of women—since, as reporters at the Huffington Post noted, the ruling was written “so as only to apply to the contraception mandate, not to religious employers who object to other medical services, like blood transfusions or vaccines.” Because men might need those medical services. (Though, in fact, those sorts of challenges could be coming.) In arguments before the Supreme Court last March, Paul Clement, arguing for Hobby Lobby, made it clear that birth control was unique because it is “so religiously sensitive, so fraught with religious controversy.” In other words, claims of conscience that involve women and sex deserve heightened scrutiny.

As I took a deep breath, and tried to process this ruling, I thought that perhaps I should try to follow the advice I give my students—to think about the historical context that would allow these male justices of the Supreme Court to consider this a reasonable ruling, to believe that trampling the rights of more than 50 percent of the population was in line with their constitutional mandate. And indeed, our particular historical circumstances explain much. Despite the legal and economic strides that women have made over the past 60 years, many people, male and female, still do not consider women’s rights, especially reproductive rights, to be the equivalent of human rights. Women’s rights, especially rights over their own body, are always contingent. There are always others who claim that they should have a share in those rights. Hence, laws that restrict the ability of women to exercise their constitutional right to abortion, laws that criminalize the behavior of women when pregnant, laws that make it difficult for women to access birth control. We allow the state and society to interfere in women’s bodily integrity in ways that men would never permit for themselves.

Monday’s ruling is simply one more piece of evidence that we still do not value women’s rights in the same way that we value “universal rights”—that is, rights that pertain to men. When I teach about gender history again this fall, I will be uncomfortably aware that the past is not really past.

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