Women's Rights on the Right: The History and Stakes of Modern Pro-Life Feminism, 1968 to the Present

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Women's Rights on the Right: The History and Stakes of Modern Women's Rights on the Right: The History and Stakes of Modern

Pro-Life Feminism, 1968 to the Present Pro-Life Feminism, 1968 to the Present

Mary Ziegler

Florida State University College of Law

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Mary Ziegler,

Women's Rights on the Right: The History and Stakes of Modern Pro-Life Feminism, 1968 to

the Present

, 28

BERKELEY J. GENDER L. & JUST.

232 (2013),

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BERKELEY JOURNAL OF GENDER, LAW & JUSTICE 232

Women’s Rights on the Right:

The History and Stakes of Modern Pro-Life

Feminism

Mary Ziegler†

ABSTRACT

Recently, pro-life advocates have popularized claims that abortion harms

rather than helps women. The best known of these arguments are the woman-

protective arguments—contentions, such as those endorsed in Gonzales v.

Carhart, justifying abortion restrictions on the basis of the physical or

psychological harms supposedly produced by the procedure. Woman-protective

claims, however, represent only one part of a much larger strategy that this

Article calls pro-life feminism. The Article follows pro-life activists’ use of the

term “feminist” or “feminism.” As the Article makes clear, activists on

competing sides of the abortion issue have contested the meaning of “true”

feminism. Taking sides in this struggle has obscured the influence and

complexity of ideas that abortion opponents identify with pro-life feminism.

These are the lost nuances that the Article seeks to recapture.

For legal scholars, social movement activists, and historians, there is a

good deal at stake in better understanding the pro-life feminist law reform

movement. In the wake of the 2006 decision in Carhart and Justice Ginsburg’s

dissent in that opinion endorsing equality-based claims, liberals on the Supreme

Court may become willing to openly support equality-based arguments for

abortion rights. Pro-life feminists have promoted an important counterargument

to equality-based justifications for abortion rights: pro-life feminism helps to

paint abortion opponents as pro-woman and amenable to the needs of women

who pursue higher education or professional careers.

The Article also identifies potential common ground among self-identified

feminists with different positions on abortion. Both pro-choice and pro-life

scholars have written extensively on how to present their arguments as

forwarding (or at least not undermining) women’s equal citizenship. However,

previous work has not fully captured the complexity or diversity of the pro-life

† Assistant Professor of Law at Florida State University College of Law. I would like to thank

Miriam Cherry, Kelly Dineen, Joel Goldstein, Eric Miller, Elizabeth Pendo, and Anders

Walker for their help with earlier versions of this draft.

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WOMEN’S RIGHTS ON THE RIGHT 233

feminist movement. Public discussion of pro-life feminism has primarily

involved a bitter struggle about who properly counts as a feminist. Lost in this

dialogue has been a meaningful consideration of legal issues on which opposing

activists might agree: contraception, equal pay for equal work, or state support

for parental leave. If we no longer view pro-life feminism as monolithic, we can

identify areas of agreement between some of those on opposing sides of the

abortion question.

INTRODUCTION .................................................................................................. 233

I. A TRULY LIBERATED WOMANHOOD: PRO-LIFE FEMINISM IN THE 1970S ...... 237

A. Women’s Rights and Feminists for Life ........................................... 237

B. Rights for Women in the Antiabortion Mainstream.......................... 239

C. Beyond Abortion: The Influence of American Citizens

Concerned for Life ......................................................................... 240

D. The Decline of Pro-Life Feminism ................................................... 246

II. MAMA GRIZZLIES, AUTHENTIC FEMINISTS, AND SMART GIRLS: THE PRO-

IFE FEMINIST DIVIDE ........................................................................... 252

III. PRO-LIFE FEMINISM IN CONTEXT ................................................................ 263

CONCLUSION ..................................................................................................... 268

NTRODUCTION

Can women’s equality be ensured without access to legal abortion?

Questions of this kind have become central to the abortion debate. Since the mid-

1980s, progressive scholars like Ruth Bader Ginsburg and Reva Siegel have

argued that equal protection claims would provide a more compelling

justification for abortion rights than the privacy rationale set forth in Roe v.

Wade.

When the Supreme Court decided Planned Parenthood of Southeastern

Pennsylvania v. Casey,

the justices seemed newly aware of the connection

between fertility control and women’s equal citizenship.

In response, antiabortion advocates have popularized claims that abortion

harms rather than helps women. The best known are the woman-protective

arguments, such as those endorsed in Gonzales v. Carhart,

that justify abortion

1. See 410 U.S. 113, 153 (1973); see, e.g., Ruth Bader Ginsburg, Some Thoughts on Autonomy

and Equality in Roe v. Wade, 63 N.C.

L. REV. 375, 386 (1985) (arguing that “the Court’s

Roe position is weakened . . . by the opinion’s concentration on a medically approved

autonomy idea, to the exclusion of a constitutionally based sex-equality perspective”); Reva

Siegel, Reasoning from the Body: A Historical Perspective on Abortion Regulation and

Equal Protection, 44 S

TAN. L. REV. 261, 351–80 (1992).

2. See 505 U.S. 833 (1992).

3. See, e.g., Andrew Coan, Is There a Constitutional Right to Select the Genes of One’s

Offspring, 63 H

ASTINGS L.J. 233, 253 (2011); Jack M. Balkin, Abortion and Original

Meaning, 24 C

ONST. COMMENT 291, 319–28 (2007); see also Gonzales v. Carhart, 550 U.S.

124, 172 (2007) (Ginsburg, J., dissenting).

4. 550 U.S. at 124.

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234 BERKELEY JOURNAL OF GENDER, LAW & JUSTICE

restrictions on the basis of the physical or psychological harms supposedly

caused by the procedure.

Woman-protective claims, however, represent only

one part of a much larger strategy this Article calls antiabortion feminism. In this

Article, I follow activists in their use of the word feminism—their self-

identification as feminists or as activists who value working with pro-choice

feminists. Those with opposing views of the abortion issue have contested the

meaning of “true” feminism. The activists participating in these struggles have

obscured the influence and complexity of ideas that abortion opponents identify

with pro-life feminism. The Article seeks to recapture these lost nuances.

If we attend better to the complexity of antiabortion feminism, its influence

on the abortion debate becomes clear. Organizations like the Susan B. Anthony

List (SBAL) have played a vital part in promoting state and federal laws banning

sex-selective abortion, defined as any abortion based on sex or gender (and

assumed to target primarily female fetuses).

Four states already ban sex-

selective abortion.

In a non-binding June 2012 vote, the United States House of

Representatives approved the Prenatal Non-Discrimination Act (PRENDA), a

proposed federal sex-selective abortion ban, by a vote of 246-168.

PRENDA

had some bipartisan support, as twenty Democrats joined 226 Republicans

voting for the bill.

Its proponents emphasize that “sex selection abortion

reinforces sex discrimination and has no place in a civilized society.”

Self-identified feminists in organizations like Live Action have also

influenced successful campaigns for laws defunding Planned Parenthood in

states like Texas, Kansas, and North Carolina.

Lila Rose, the leader of Live

5. For an example of the kinds of pro-woman arguments studied in existing work, see generally

Maya Manian, The Irrational Woman: Informed Consent and Abortion Decision-Making, 16

UKE J. GENDER L. & POL’Y 223 (2009); Reva B. Siegel, The Right’s Reasons:

Constitutional Conflict and the Spread of Woman-Protective Pro-Life Argument, 57 D

UKE

L.J. 1641 (2008); Jeannie Suk, The Trajectory of Trauma: Bodies and Minds of Abortion

Discourse, 110 C

OLUM. L. REV. 1193 (2010).

6. See, e.g., Susan B. Anthony List, In the Name of Feminism, SBAL,

http://www.sba-

list.org/suzy-b-blog/name-feminism (last visited Mar. 1, 2013); Susan B. Anthony List,

Planned Parenthood Shows Inconsistency in PRENDA Opposition, SBAL, http://www.sba-

list.org/suzy-b-blog/planned-parenthood-shows-inconsistency-prenda-opposition (last visited

Jan. 23, 2013). Lila Rose’s Live Action has also pushed for PRENDA. See, e.g., Statement

by Live Action on PRENDA Vote, L

IVE ACTION (May 31, 2012),

http://liveaction.org/blog/statement-by-live-action-on-prenda-vote.

7. See Ban on Sex Selection Abortions, C

HRISTIAN SCI. MONITOR, (May 31, 2012),

http://www.csmonitor.com/Commentary/the-monitors-view/2012/0531/Ban-on-sex-

selection-abortions-Change-attitudes-toward-girls-instead.

8. See, e.g., Tom Feran, Other Consequences Complicated Abortion Bill, C

LEVELAND PLAIN

DEALER, June 12, 2012, at B1.

9. See, e.g., House Vote 299: Rejects a Ban on Sex Selection Abortions, N.Y.

TIMES (May 29,

2012), http://politics nytimes.com/congress/votes/112/house/2/299.

10. Representative Franks Introduces Susan B. Anthony and Frederick Douglass Prenatal Non-

Discrimination Act, Apr. 7, 2009, 2009 WLNR 6501308.

11. On the state of defunding laws, see Naomi Wolf, What Really Lies Behind the “War on

Women,” GUARDIAN, May 24, 2012, 2012 WLNR 10999372. For further study of the

defunding movement, see Mary Ziegler, Sexing Harris: The Law and Politics of the

Movement to Defund Planned Parenthood, 60 BUFF. L. REV. 701 (2012).

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WOMEN’S RIGHTS ON THE RIGHT 235

Action, has alleged that Planned Parenthood facilitates the oppression of women.

In videos circulated by the organization, Planned Parenthood employees fail to

report cases of the sexual exploitation of minors and agree to perform sex-

selection abortions.

These videos reinforce conservative antiabortion feminist

arguments about abortion providers’ supposed discrimination against women.

Despite its relevance to contemporary debate, scholars have mostly

neglected the study of the modern antiabortion feminist movement.

Leading

histories of the antiabortion movement describe pro-life feminism as a

marginalized, short-lived, and not particularly influential phenomenon.

However, antiabortion feminism has been more powerful and relevant than we

might believe. In the legislative arena, self-identified feminists influence battles

about sex-selective abortion and the defunding of Planned Parenthood. Abortion

opponents have also crafted counterarguments to the sex-equality claims set

forth by Justice Ginsburg: arguments that true proponents of sex equality should

oppose abortion. For these reasons, an understanding of the history and stakes of

antiabortion feminism is long overdue.

Legal scholars, social movement activists, and historians can learn a good

deal through a better understanding of the antiabortion feminist law reform

movement. In the wake of the 2007 decision in Carhart and Justice Ginsburg’s

dissent in that opinion endorsing equality-based claims,

liberals on the

Supreme Court may become more willing to openly support equality-based

arguments for abortion rights, a development noted by scholars across the

ideological spectrum, from Professor Cass Sunstein to prominent pro-life

attorneys James Bopp, Jr. and Clark Forsythe.

Antiabortion feminists have

12. See, e.g., Ziegler, supra note 11, at 721–24.

13. The most comprehensive studies focus on what Siegel has called woman-protective

arguments—claims that restricting abortion will protect women from the consequences of

their own poor decisions. See supra note 5 and text accompanying.

14. In one of the landmark studies of the pro-life movement, Kristin Luker describes all pro-life

feminists as a “relatively small group.” K

RISTIN LUKER, ABORTION AND THE POLITICS OF

MOTHERHOOD 113 (1984). In their study of the abortion debate, Elizabeth Freeman and

Alan Mensch briefly analyze American Citizens Concerned for Life but do not explore the

group’s relevance or impact. See E

LIZABETH FREEMAN AND ALAN MENSCH, THE POLITICS

VIRTUE: IS ABORTION DEBATABLE? 138 (1993). Faye Ginsburg’s analysis is equally

terse. See

FAYE GINSBURG, CONTESTED LIVES: THE ABORTION DEBATE IN THE AMERICAN

COMMUNITY 118 (1998). Even Keith Cassidy, a scholar who is particularly attentive to the

diversity of the pro-life movement, does not do justice to the diversity or influence of pro-life

feminism. See Keith Cassidy, The Right to Life Movement: Sources, Development, and

Strategies, in T

HE POLITICS OF ABORTION AND BIRTH CONTROL IN HISTORICAL

PERSPECTIVE 141, 144–47 (Donald Critchlow ed., 1996). For examples of the standard pro-

life feminist account of the movement’s history, see Feminists for Life Reveals Suffragists’

Pro-life Stand, P.R.

NEWSWIRE, Mar. 14, 1991; Feminist Launches PAC for Pro-Lifers,

ASH. TIMES, Nov. 7, 1992, at A1.

15. 550 U.S. 124, 172 (2007) (Ginsburg, J., dissenting).

16. See, e.g., Cass R. Sunstein, Op-Ed., Ginsburg’s Dissent May Yet Prevail, L.A.

TIMES, Apr.

20, 2007, at A31; Memorandum from James Bopp, Jr. & Richard Coleson to Whom It May

Concern (Aug. 7, 2007), available at

http://operationrescue.org/pdfs/Bopp%20Memo%20re%20State%20HLA.pdf; Clark D.

Forsythe, An Unnecessary Evil,

FIRST THINGS (Feb. 2003),

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236 BERKELEY JOURNAL OF GENDER, LAW & JUSTICE

promoted an important counterargument to equality-based justifications for

abortion rights: pro-life feminism helps to paint abortion opponents as pro-

woman and as amenable to the needs of women who pursue higher education or

professional careers.

A study of the history of antiabortion feminism also identifies potential

common ground among self-identified feminists with different positions on

abortion. Both pro-choice and pro-life scholars have written extensively on how

to present their arguments as forwarding (or at least not undermining) women’s

equal citizenship.

However, previous work has not fully captured the diversity

of the antiabortion feminist movement. Activists and organizations fall along a

broad spectrum, with some self-proclaimed pro-life feminists endorsing a

traditionalist view of gender roles and a small government providing little

support for contraception or health care. However, other movement members

who identify as pro-life feminists, like the members of All Our Lives, view

contraception as a right and express concern about “the intersecting injustices of

sexism, racism, classism, ablism, LGBT phobia, religious discrimination,

environmental pollution, and anything else which threatens these rights.”

Public discussion of antiabortion feminism has primarily involved a bitter

http://www firstthings.com/article.php3?id_article=437.

17. For a sample of the work calling for a greater emphasis on equality interests in the abortion

context, see Jack M. Balkin, How New Genetic Technologies Will Transform Roe v. Wade,

56 E

MORY L.J. 843, 851 (2007) (“[B]y viewing the abortion right as part of a generalized

right of privacy, the Court obscured the relationship between women’s reproductive liberty

and their equality with men.”); Ginsburg, supra note 1, at 386; Sylvia A. Law, Rethinking

Sex and the Constitution, 132 U.

PA. L. REV. 955 (1984) (“[T]he development of modern

constitutional sex equality doctrine has suffered from a lack of focus on biological

reproductive differences between men and women.”); Eileen McDonagh, The Next Step After

Roe: Using Fundamental Rights, Equal Protection Analysis to Nullify Restrictive State-level

Abortion Legislation, 56 E

MORY L.J. 1173, 1174 (2007) (“As many legal scholars have

recommended for decades, the answer to the question of how to strengthen reproductive

rights is to add constitutional guarantees under the Equal Protection Clause to the current

foundation of abortion rights based upon the Due Process Clause.”); Reva Siegel & J. Siegel,

Concurring, in W

HAT ROE V. WADE SHOULD HAVE SAID 63, 63 (Jack M. Balkin ed., 2005)

(“Too often, laws that single women out for special treatment in virtue of their maternal role

have excluded women from participating as equals with men in core activities of

citizenship.”); Cass Sunstein, The Anticaste Principle, 92 M

ICH. L. REV. 2410, 2425 (1994)

(arguing for the application of Equal Protection Clause analysis where “the law takes a

characteristic limited to one group of citizens and turns that characteristic into a source of

social disadvantage . . . .”). For discussion of the pro-life movement’s interest in convincing

women of its support, see David Reardon, Politically Correct vs. Politically Smart: Why

Politicians Should Be Both Pro-Woman and Pro-Life, P

OST-ABORTION REV., Fall 1994, at

1–3, available at http://www.afterabortion.info/PAR/V2/n3/PROWOMAN htm; J.C. Willke,

Life Issues Institute Is Celebrating Ten Years with a New Home, L

IFE ISSUES CONNECTOR

(Life Issues Inst., Cincinnati, Ohio), Feb. 2001, at 1, 4, available at

http://www.lifeissues.org/connector/01feb html; see also Bopp, supra note 16.

18. See Mission, A

LL OUR LIVES, http://www.allourlives.org/about-us/mission/ (last visited Mar.

1, 2013) [hereinafter Mission]. For the mission statements of organizations with similar

positions, see, e.g., Mission, C

ONSISTENT LIFE http://www.consistent-life net/ (last visited

Mar. 1, 2013). Pro-life feminists active in the movement in the 1970s, such as Juli Loesch

Wiley, continue to participate in organizations that carry on the pro-life feminist tradition

from that era. On Wiley’s career, see Juli Loesch Wiley, Email Interview with the Author,

Mar. 19, 2012.

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WOMEN’S RIGHTS ON THE RIGHT 237

struggle about who properly counts as a feminist.

Lost in this dialogue has

been a meaningful consideration of legal issues on which opposing activists

might agree: contraception, equal pay for equal work, or state support for

parental leave. If we no longer view pro-life feminism as monolithic, we can

identify areas of agreement between some of those on opposing sides of the

abortion question.

The Article proceeds in four parts. Part I studies the emergence and decline

of pro-life feminism in the 1970s. Part II evaluates the reappearance and eventual

transformation of pro-life feminism between 1993 and today. Part III analyzes

the stakes of this history for current debates about legal abortion and the

meaning of feminism. Then, the Article briefly concludes.

I. A TRULY LIBERATED WOMANHOOD: PRO-LIFE FEMINISM IN THE 1970S

Contemporary antiabortion feminists conventionally present their history

as beginning in the nineteenth-century, with the rise of first-wave feminism.

Linda Kerber has shown, first-wave feminists campaigned for a broad agenda

that included votes for women, an increase in the age of sexual consent for

women, Prohibition, and laws banning everything from child labor to impure

foods.

According to contemporary pro-life feminists, their movement carries

on the tradition that emerged with the work of Susan B. Anthony and Elizabeth

Cady Stanton in the nineteenth century.

As this Article shows, the recent

history of pro-life feminism is considerably more complex.

A. Women’s Rights and Feminists for Life

Before and immediately after Roe v. Wade, like most pro-life activists, pro-

life feminists were part of a decentralized, mostly state-level attempt to block the

liberalization of abortion laws.

Some activists identifying as antiabortion

feminists joined Feminists for Life (FFL), a group founded in 1973 in Ohio by

19. See, e.g., infra notes 232, 236–37 and accompanying text.

20. See, e.g., M

ARY KRANE DERR ET AL., PRO-LIFE FEMINISM: YESTERDAY AND TODAY

(1995). For a study of the use of first-wave feminist history, see Tracy Thomas,

Misappropriating Women’s History in the Law and Politics of Abortion, 36 S

EATTLE U. L.

REV. 1 (2012).

21. For a history of first-wave feminism, see L

INDA K. KERBER, NO CONSTITUTIONAL RIGHT

TO BE LADIES: WOMEN AND THE OBLIGATIONS OF CITIZENSHIP (1998); DIANNE

AVIDSON, WOMEN ON THE WARPATH: FEMINISTS OF THE FIRST WAVE (1997); ELLEN

AROL DUBOIS, FEMINISM AND SUFFRAGE: THE EMERGENCE OF AN INDEPENDENT

WOMEN’S MOVEMENT IN AMERICA 1848–1869 (1999).

22. See, e.g., David Wagner, Not Just Any Senatorial Wife, Abraham Leads Pro-Life PAC,

NSIGHT ON THE NEWS, June 2, 1997, at 16.

23. On the pre-Roe pro-life movement, see Z

IAD W. MUNSON, THE MAKING OF PRO-LIFE

ACTIVISTS: HOW SOCIAL MOVEMENT MOBILIZATION WORKS 85 (2010); see also GENE

URNS, THE MORAL VETO: FRAMING CONTRACEPTION, ABORTION, AND CULTURAL

LURALISM IN AMERICA 244–315 (2005). For a documentary history of the pre-Roe debate,

see generally B

EFORE ROE V. WADE: VOICES THAT SHAPED THE SUPREME COURT DECISION

(Linda Greenhouse & Reva Siegel eds., 2010).

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238 BERKELEY JOURNAL OF GENDER, LAW & JUSTICE

Patricia Goltz and Catherine Callaghan.

Then a student at the Ohio State

University, Goltz unsuccessfully sought to persuade her local chapter of the

National Organization for Women (NOW), the nation’s leading women’s

organization, that abortion was antithetical to the beliefs and values of the

women’s movement.

FFL set out one view of pro-life feminism: progressive feminists, the

argument went, could logically support sex equality while opposing abortion as a

degradation of women and as an excuse for men seeking to exploit them. Rather

than challenging the stereotyped identification of women as caretakers, FFL

criticized abortion for undercutting caretakers’ rights. Abortion allowed men to

use women sexually without suffering any consequences, and abortion excused

the state from supporting women who wanted to balance caretaking and a career.

FFL publications endorsed much of the second-wave feminist agenda while

insisting that opposition to abortion flowed naturally from that agenda.

In the 1970s, FFL campaigned for several legal reforms favored by

feminists supportive of abortion rights. For example, Goltz urged FFL members

to fight for an Equal Rights Amendment (ERA) to the federal Constitution.

FFL members also lobbied for laws allowing married women to take credit in

their own names—a reform endorsed by feminist organizations like NOW.

FFL brought together its support for these second-wave feminist initiatives

with the condemnation of abortion. In the early 1970s, the organization created

several “pro-woman” arguments for abortion. For example, Goltz called abortion

“an insidious form of enslavement to the Playboy’s ‘right to fuck’ [that] has no

place in the women’s movement.”

In Goltz’s view, the availability of legal

abortion allowed men who sexually exploited women to avoid paying child

support or facing the consequences of their actions.

FFL also spread claims that

legal abortion would result in the disproportionate killing of female fetuses.

Finally, FFL argued that Roe undermined the women’s movement by

recognizing a right to be sexually exploited that had no place in that

movement.

According to Goltz, Roe did not create any rights for women. The

24. See, e.g., MARVIN KRIER MICH, CATHOLIC SOCIAL TEACHING AND MOVEMENTS 212–14

(1998).

25. See id. at 212.

26. The Equal Rights Amendment, S

ISTERLIFE J., 1973, at 8–9 (on file with the Schlesinger

Library, Harvard University in the Feminists for Life Collection).

27. Feminists for Life Task Force on Consumer Credit, F

EMINISTS FOR LIFE J., 1972, at 2 (on

file with the Schlesinger Library, Harvard University in the Feminists for Life Collection).

On NOW’s support for laws allowing married women to obtain credit in their own names,

see, e.g., E

NCYCLOPEDIA OF WOMEN AND GENDER: SEX SIMILARITIES AND DIFFERENCES

AND THE

IMPACT OF SOCIETY ON GENDER 460 (2002).

28. Pat Goltz, Editorial: Woman’s Right to Control Her Own Body, F

EMINISTS FOR LIFE J.,

1973, at 6 (on file with the Schlesinger Library, Harvard University in the Feminists for Life

Collection).

29. See id.

30. George Steven Swan, Untitled Article,

SISTERLIFE J., 1973, at 1–4 (on file with the

Schlesinger Library, Harvard University in the Feminists for Life Collection).

31. See Goltz, supra note 28.

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WOMEN’S RIGHTS ON THE RIGHT 239

right to choose abortion was a “form of enslavement” that represented a

“negation,” rather than a fulfillment of “the right to control one’s own body.”

B. Rights for Women in the Antiabortion Mainstream

FFL members shared beliefs about sex discrimination law with others in

the antiabortion movement. A number of antiabortion activists stressed the

importance of finding common ground with feminists who supported abortion

rights, particularly on the topics of government funding of maternal care,

healthcare, contraception or sex education, and guaranteeing protections against

pregnancy discrimination.

These advocates played an influential role in the

early years of the nation’s largest pro-life organization, the National Right to

Life Committee (NRLC).

This philosophy shaped the NRLC’s pre-Roe

statement of purpose, which asserted that the organization was “in favor of a

legal system that protects the life of the unborn child, while recognizing the

dignity of the child’s mother, the rights of its father, and the responsibility of

society to provide support and assistance to both the mother and child.”

The

statement of purpose further called for expanded government support for post-

birth maternal health care and improved support services for children whose

parents were not willing to raise them.

Working in organizations such as the

Reproductive Rights National Network, an organization that fought against

sterilization abuse and demanded government support for contraception, health

care, and child care, some feminists supportive of abortion rights also called for

greater governmental support for caretaking and health care.

Feminist women’s

health activists and pro-lifers with dramatically different views of abortion

agreed that the state needed to do more to support mothers and their dependents.

Similarly, in June 1974, the NRLC adopted a major policy resolution

proposing that antiabortion advocates work to remove the stigma attached to

unwed motherhood and illegitimacy by removing any mention of illegitimacy

from birth certificates.

The NLRC was concerned that stigmatizing unwed

motherhood might encourage women to have abortions.

At the same time,

32. See id.

33. For a discussion of the diversity of the pro-life movement, see Cassidy, supra note 14, at

141–43; M

UNSON, supra note 23, at 192.

34. See, e.g., L

AURENCE TRIBE, ABORTION: THE CLASH OF ABSOLUTES 146 (1992).

35. P

ENNSYLVANIANS FOR HUMAN LIFE, NRLC STATEMENT OF PURPOSE (1972) (on file with

the Gerald Ford Memorial Library, University of Michigan in the American Citizens

Concerned for Life Papers, Box 4).

36. See id.

37. See, e.g., R

EBECCA M. KLUCHIN, FIT TO BE TIED: STERILIZATION AND REPRODUCTIVE

RIGHTS IN AMERICA, 1950-1980 200–24 (2011); WENDY KLINE, BODIES OF KNOWLEDGE:

SEXUALITY, REPRODUCTION, AND WOMEN’S HEALTH IN THE SECOND WAVE 68–93 (2010).

38. See N

ATIONAL RIGHT TO LIFE COMMITTEE, RESOLUTION 3 (1974), (on file with the Gerald

Ford Memorial Library, University of Michigan in the American Citizens Concerned for Life

Papers, Box 4).

39. David Reardon, one of the architects of woman-protective pro-life argument, would later

make this point. See D

AVID C. REARDON, ABORTED WOMEN: SILENT NO MORE 324 (1987).

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240 BERKELEY JOURNAL OF GENDER, LAW & JUSTICE

calling for better treatment for unwed mothers had important egalitarian

implications. The stigmatization of unwed motherhood, like bans on abortion,

reflected a powerful sexual double standard.

“According to the prevailing

double standard, the young man who was equally responsible for the pregnancy

was not condemned for his actions. It was her fault . . . that she got pregnant.”

Many abortion opponents reinforced the sexual double standard, urging

their colleagues to attack sexual promiscuity as well as abortion.

Indeed, as

leading activist Charles Rice framed the issue, legal abortion was problematic

partly because it made promiscuity costless.

Read in the context of antiabortion

politics in the 1960s and 1970s, the NRLC’s resolution reflected a different view

of female sexuality: women should be respected whenever they became

pregnant.

As then-NRLC member Marjory Mecklenburg would explain later,

government “should treat pregnant women, wed or unwed, with some dignity

and respect their rights.”

C. Beyond Abortion: The Influence of American Citizens Concerned for

Life

Some within the NRLC endorsed legal reforms promoted by feminists

supportive of abortion rights: efforts to eliminate a sexual double standard, to

remove the stigma attached to unwed motherhood, and to increase government

funding for maternal care and healthcare.

Later in the 1970s, antiabortion

activists created an organization, American Citizens Concerned for Life (ACCL),

which clearly stressed the importance of working with pro-choice feminists

albeit not on the issue of abortion itself.

By “build[ing] good will even among

40. See LESLIE J. REAGAN, WHEN ABORTION WAS A CRIME: WOMEN, MEDICINE, AND LAW IN

THE

UNITED STATES, 1867–1973, at 28 (1998).

41. A

NN FESSLER, THE GIRLS WHO WENT AWAY: THE HIDDEN HISTORY OF WOMEN WHO

SURRENDERED CHILDREN FOR ADOPTION IN THE DECADES BEFORE ROE V. WADE 8–9

(2006).

42. See, e.g., Patrick T. Conley & Robert J. McKenna, The Supreme Court on Abortion—A

Dissenting Opinion, 19 C

ATH. LAW. 19, 24 (1973) (expressing concern that “[a] society that

countenances the brutality of abortion is one in which psychological ills, irreverence for life,

and sexual promiscuity are likely to proliferate”); C

HARLES E. RICE, A VANISHING RIGHT

LIVE: AN APPEAL FOR A RENEWED REVERENCE FOR LIFE 125 (1969).

43. R

ICE, supra note 42, at 125 (“Promiscuity is the logic of birth control; but to have

promiscuity with impunity there must also be abortion”).

44. N

ATIONAL RIGHT TO LIFE COMMITTEE, supra note 38.

45. Abortion—Part IV: Hearing on S.J. Res. 6, S.J. Res. 10 and 11, and S.J. Res. 91 Before the

Subcomm. on Constitutional Amendments of the S. Comm. on the Judiciary, 94th Cong. 646

(1976) (statement of Marjory Mecklenburg, President, American Citizens Concerned for

Life).

46. On feminists’ attack on the sexual double standard in the 1960s, see STEVI JACKSON & SUE

COTT, FEMINISM AND SEXUALITY: A READER 4 (1996). See generally SANDRA MORGEN,

NTO OUR OWN HANDS: THE WOMEN’S HEALTH MOVEMENT IN THE UNITED STATES, 1969-

1990 (2002) (discussing feminist heathcare reform in the 1960s and 1970s); M

ICHELLE

URPHY, SEIZING THE MEANS OF REPRODUCTION: ENTANGLEMENTS OF FEMINISM,

HEALTH, AND TECHNOSCIENCE 25–56 (2012).

47. See Mary Ziegler, The Possibility of Compromise: Antiabortion Moderates After Roe v.

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WOMEN’S RIGHTS ON THE RIGHT 241

opponents,” the organization could achieve “a reputation for competence and

credibility.”

Showing concern for “other questions of social justice” would also

allow the organization to show its support “for the well being of children and

families, not just their existence at a subsistence level.”

ACCL members played an important part in political struggles focused on

pregnancy discrimination and government-funded contraception.

ACCL

activists did not always identify themselves as feminists.

The organization

worked closely with feminist organizations on contraception access and sex

discrimination law as did feminists supportive of abortion rights.

For this

reason, a history of antiabortion feminism cannot be complete without an

understanding of the ACCL’s beliefs and contributions.

At first blush, the ACCL appears to be small and relatively short-lived: it

was founded prior to Roe, active beginning in 1974, and no longer functioning

by the mid-1980s.

However, during the 1970s, the ACCL played an important

part in the struggle for the Pregnancy Discrimination Act and federal laws

funding contraception. The ACCL’s platform represented a previously

unexplored approach to antiabortion feminism. In order to appear legitimate and

respectable, the ACCL encouraged abortion opponents to identify common

ground with those on the other side of the abortion issue, particularly since the

pro-life movement had an obligation to help women avoid the need for

abortion.

Before its decline in the late 1970s, the ACCL’s program led its

members to work productively with progressive feminists on issues from

contraceptive funding to pregnancy discrimination.

Given the organization’s influence, it is worth examining its members’

perspective in depth. In congressional testimony, for example, Warren Schaller,

the organization’s first Executive Director, articulated the organization’s position

that “women should be able to control their own reproductive functions and

Wade, 1973-1980, 87 CHI.-KENT L. REV. 571, 578–79 (2012).

48. W

ILLIAM C. HUNT & JOSEPH A. LAMPE, STRATEGY CONSIDERATIONS FOR ACCL

INVOLVEMENT IN ABORTION AND RELATED ISSUES 5 (1974) (on file with the Gerald Ford

Memorial Library, University of Michigan in the American Citizens Concerned for Life

Papers, Box 8).

49. Id. (internal quotation marks omitted).

50. See, e.g., Ziegler, supra note 47, at 579–84.

51. For the organization’s statement of its goals and identity, see A

MERICAN CITIZENS

CONCERNED FOR LIFE, TO BUILD A CARING SOCIETY: THE GOALS OF AMERICAN CITIZENS

CONCERNED FOR LIFE (1974) (on file with the Gerald Ford Memorial Library, University of

Michigan in the American Citizens Concerned for Life Papers, Box 15); ACCL

PHILOSOPHY

AND

OBJECTIVES (1978), (on file with the Gerald Ford Memorial Library, University of

Michigan in the American Citizens Concerned for Life Papers, Box 15); Hunt and Lampe,

supra note 48, at 5; F

RED E. MECKLENBURG, BUILDING BRIDGES INSTEAD OF WALLS, 3 (c.

1975) (on file with the Gerald Ford Memorial Library, University of Michigan in the

American Citizens Concerned for Life Papers, Box 15).

52. See Ziegler, supra note 47, at 582–84.

53. For an example of this perspective, see F

REEMAN & MENSCH, supra note 14, at 138.

54. H

UNT & LAMPE, supra note 48.

55. See Ziegler, supra note 47, at 582–84.

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242 BERKELEY JOURNAL OF GENDER, LAW & JUSTICE

couples should be able to determine the size of their family.”

Similarly, in a

1975 speech, Frederick Mecklenburg, another ACCL leader, urged his

colleagues to find areas of agreement with supporters of abortion rights: “[o]n

the subject of building walls, if we persist in avoiding and rejecting the help of

concerned citizens who may promote sex education or family planning programs

or welfare programs to help the unwed, we deserve to be left frustrated and

angry.”

He went on to describe the ACCL’s vision of antiabortion activism: a

belief that opposing abortion morally required activists to “work harder than

ever . . . to make abortion unnecessary.”

He endorsed more “medical assistance

for the unwed mother and her baby, programs to help keep pregnant girls in

public schools, . . . and provision for daycare centers and training.”

A second

and equally important set of proposals involved women’s rights to prevent

pregnancy. Frederick Mecklenburg did not endorse sexual liberation.

But

“good or bad,” as he put it, “the sexual revolution [was] real.”

Women could

avoid abortion only if they could effectively avoid unwanted pregnancies.

The ACCL promoted its philosophy by lobbying for contraceptive funding

and for protections against pregnancy discrimination. In campaigning for and

testifying on behalf of the so-called Adolescent Health Services and Pregnancy

Prevention Act of 1978, for example, Marjory Mecklenburg described her

position as one “on which people who differ on questions of abortion legality or

abortion funding should agree.”

As Mecklenburg would emphasize later, other

organizations, some of them supportive of abortion rights, worked in a broad

coalition supporting the legislation.

The ACCL’s influence was also apparent in its public response to the

Supreme Court’s 1976 decision in General Electric Company v. Gilbert.

Gilbert, the Court had held that the systematic exclusion of pregnancy from

disability coverage was not, under Title VII, sex discrimination.

In doing so,

the Court effectively barred any pregnancy-discrimination claim, since an earlier

56. Abortion Part III: Testimony Before the Subcomm. on Constitutional Amendments of the S.

Judiciary Comm., 93d Cong. 164 (1974) (statement of Warren Schaller, Executive Director,

American Citizens Concerned for Life).

57. M

ECKLENBURG, supra note 51, at 3.

58. Id. at 1.

59. Id. at 2.

60. Id.

61. Id.

62. Id.

63. Testimony on the Adolescent Health Servs. and Pregnancy Prevention & Care Act of 1978,

94th Congress 431 (1978) (statement of Marjory Mecklenburg, President, American Citizens

Concerned for Life).

64. See A

MERICAN CITIZENS CONCERNED FOR LIFE, NO VEHICLE QUITE LIKE OURS (1978) (on

file with the Gerald Ford Memorial Library, University of Michigan in the American

Citizens Concerned for Life Papers, Box 15).

65. Gen. Electric Co. v. Gilbert, 429 U.S. 125 (1976).

66. See id. at 138–40, 146.

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WOMEN’S RIGHTS ON THE RIGHT 243

decision, Geduldig v. Aiello, held that pregnancy discrimination was

constitutional under the Equal Protection Clause of the Fourteenth

Amendment.

The ACCL immediately spoke out against Gilbert, arguing that

discrimination against pregnant women coerced them to have abortions and

constituted impermissible sex discrimination.

The ACCL’s campaign to undo Gilbert reveals the complexity of the views

held by its members on sex equality. These nuances become clear through an

exploration of the relationship between the ACCL and feminist members of the

Committee to End Discrimination Against Pregnant Workers (CEDAPW), a

coalition of labor, civil rights, and women’s groups that included leading

abortion-rights supporters like the National Organization for Women (NOW)

and the American Civil Liberties Union (ACLU).

Members of ACCL and

CEDAPW lobbied together for a federal ban on pregnancy discrimination.

Spokeswomen for the two organizations offered sometimes radically different

visions of why women needed protection against pregnancy discrimination.

Representatives of the two groups agreed, however, on a fundamental point: true

reproductive choice required government protection against sex discrimination,

particularly for women who did not want to have to sacrifice their careers.

The complex relationship between the ACCL and CEDAPW began to take

shape when CEDAPW adopted views similar to those expressed in a New York

Times editorial by its co-chairwoman, Susan Deller Ross, and Ruth Bader

Ginsburg, then a professor at Columbia Law School and the co-founder of the

ACLU Women’s Rights Project.

In the January 1977 editorial, Ginsburg and

Deller Ross contended that women’s capacity to become pregnant was at the root

of all discrimination against women in the workplace.

Deller Ross and some of her allies, including Professor Wendy Williams of

Georgetown University Law School, offered similar arguments when hearings

began in Congress on the Pregnancy Discrimination Act (PDA), a federal law

intended to overturn Gilbert. During hearings on April 4, 1977, for example,

Williams asserted that “[t]he common thread of justification running through

most policies that discriminated against women . . . rested ultimately on the

capacity and fact of pregnancy.”

Deller Ross also insisted that pregnancy-based

bias served as “the central justification of and support for discrimination against

67. See Geduldig v. Aiello, 417 U.S. 484, 494, 496–97 n.20 (1974).

68. See Ziegler, supra note 47, at 582.

69. See, e.g, Deborah Dinner, The Costs of Reproduction: History and the Legal Construction of

Sex Equality, 46 H

ARV. C.R.-C.L. L. REV. 415 (2011) (recounting the founding of the

CEDAPW); R

OBERT H. BLANK, FETAL PROTECTION IN THE WORKPLACE: WOMEN’S

RIGHTS, BUSINESS INTERESTS AND THE UNBORN 38 (1993).

70. See Ruth Bader Ginsburg & Susan Deller Ross, Pregnancy and Discrimination, N.Y.

TIMES,

Jan. 22, 1977, at A33.

71. Id.

72. Discrimination on the Basis of Pregnancy: Testimony Before the Subcomm. on Labor of the

S. Comm. on Human Res., 95th Cong. 113 (1977) (statement of Wendy Williams, Professor,

Georgetown University Law Center) [hereinafter Statement of Wendy Williams].

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244 BERKELEY JOURNAL OF GENDER, LAW & JUSTICE

women workers.”

In her own April 1977 testimony, ACCL General Counsel Jacqueline

Nolan-Haley offered strikingly different arguments for the protections against

pregnancy discrimination that both CEDAPW and ACCL supported. Nolan-

Haley framed the PDA partly as a woman-protective measure, and she described

pregnant women as “the most vulnerable members of the work force.”

Whereas Williams focused on the devastating costs in benefits and seniority tied

to maternity leave, Nolan-Haley stressed her disagreement with the idea that

conception and pregnancy were voluntary.

For many women who found

abortion to be wrong, Nolan-Haley explained, continued pregnancy became the

only viable option, but it could hardly be described as voluntary or desirable.

Meanwhile, as Williams and Deller Ross emphasized discrimination against all

working women, Nolan-Haley spent more time discussing bias against women

who chose childbirth over abortion.

Williams and Nolan-Haley agreed,

however, that Gilbert would coerce women to have abortions in order to save

their jobs.

Between April and September 1977, the ACCL further developed the

argument that true reproductive choice required state protection against sex

discrimination. The evolution of the ACCL position began in late April 1977,

when the organization issued a press release focusing on the fact that Gilbert

denied women reproductive freedom. If a woman faced the possibility of losing

her job, the press release asserted, her decision to choose abortion could “not be

said to be the product of free choice but of economic coercion.”

Developments in the summer and fall of 1977 tested the ACCL’s

commitment to this principle. Members of Congress in both the House and the

Senate, including abortion opponents Senator Thomas Eagleton (D-MO) and

Representative Edward Beard (D-RI), introduced amendments providing that the

proposed PDA would not require employer coverage of abortion or post-abortion

care.

In legislative testimony, the ACCL supported the PDA whether or not it

73. Discrimination on the Basis of Pregnancy: Testimony Before the Subcomm. on Labor of the

S. Comm. on Human Res., 95th Cong. 149–51 (1977) (statement of Susan Deller Ross, Co-

Chair, Comm. to End Discrimination Against Pregnant Workers).

74. Discrimination on the Basis of Pregnancy: Testimony Before the Subcomm. on Labor of the

S. Comm. on Human Res., 95th Cong. 432, 435–36 (1977) (statement of Jacqueline Nolan-

Haley, General Counsel, American Citizens Concerned for Life) [hereinafter Statement of

Jacqueline Nolan-Haley).

75. Compare Statement of Wendy Williams, supra note 72, at 132–40, with Statement of

Jacqueline Nolan-Haley, supra note 74, at 435–40.

76. See Statement of Jacqueline Nolan-Haley, supra note 74, at 436–40.

77. See supra note 75 and accompanying text.

78. See id.

79. See Press Release, American Citizens Concerned for Life, Pregnancy Discrimination, (Apr.

29, 1977) at 1 (on file with the Gerald Ford Memorial Library, University of Michigan in the

American Citizens Concerned for Life Papers, Box 15).

80. See, e.g., Martin Tolchin, A House Panel Bars Curb on Abortions in Women’s Aid Bill, N.Y.

TIMES, Feb. 3, 1978, at A11 (discussing Beard Amendment); Senate Votes Pregnancy

Benefits in Disability Plans for Workers, N.Y. T

IMES, Sept. 17, 1977, at 8 (discussing

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WOMEN’S RIGHTS ON THE RIGHT 245

included a pro-life amendment.

Dr. Dorothy Czarnecki, a leading member of the ACCL, offered some

explanation as to why an organization opposed to abortion would take this

position.

She stated that the ACCL supported working women.

She reiterated

the ACCL’s arguments about reproductive choice and freedom from coercion

“into a backup method of destructive obstetrics, such as abortion.”

Members of

Congress supportive of the pro-life amendment to the PDA pressed Czarnecki on

whether her organization would support the bill if it would require employers to

cover treatment for women who had undergone an abortion.

She responded

that the ACCL would support the bill even under such circumstances.

Czarnecki emphasized that the legislation would not coerce women to make any

decision, including one in favor of childbirth.

As Czarnecki explained, the law

“would encourage a woman to keep a pregnancy or do what she wants. It gives

women a choice.”

The PDA passed in 1978, but the struggle for it created a sometimes

uneasy partnership between members of the ACCL and CEDAPW.

Nolan-

Smith asserted that women remained vulnerable and in need of special legal

protection, while theorists like Wendy Williams described such views about

female vulnerability as pernicious stereotypes.

ACCL spokespersons believed

abortion to be wrong, a perspective not shared by Ginsburg or other CEDAPW

members.

Nonetheless, as we have seen, ACCL members, like feminists who

supported abortion rights, endorsed state-sponsored family planning services and

argued that women should have welfare rights and freedom from sex

discrimination—both of which would make reproductive decisions truly

voluntary and meaningful.

Together, the ACCL and FFL offered different perspectives on what it

might mean to be an antiabortion feminist. Both organizations encouraged their

Eagleton Amendment).

81. See, e.g., Legislation to Prohibit Discrimination on the Basis of Pregnancy: Testimony

Before the H. Subcomm. on Emp’t Opportunities of the Comm, on Education and Labor,

95th Cong. 62 (1977) (statement of Dr. Dorothy Czarnecki, Member, American Citizens

Concerned for Life) [hereinafter Statement of Dorothy Czarnecki]

82. Statement of Dorothy Czarnecki, supra note 81, at 62–66.

83. Id. at 66.

84. Id.

85. Id.

86. Id.

87. Id.

88. Id.

89. See Reva B. Siegel, Employment Equality Under the Pregnancy Discrimination Act of 1978,

94 YALE L.J. 929, 929–56 (1985).

90. See supra note 74 at 436-40.

91. Indeed, before Roe, Ginsburg litigated Struck v. Secretary of Defense, 460 F.2d 1372 (1971),

a sex discrimination case that “gently gesture[d] in the direction of the link between sex

discrimination and burdensome regulations of abortion.” Neil S. Siegel and Reva B. Siegel,

Struck By Stereotype: Justice Ruth Bader Ginsburg on Pregnancy Discrimination as Sex

Discrimination, 59 D

UKE L.J. 771, 792 (2010).

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246 BERKELEY JOURNAL OF GENDER, LAW & JUSTICE

members to identify areas of agreement with supporters of abortion rights. For

the ACCL, this effort involved reforms that would make abortion less necessary

and that would support women who carried pregnancies to term. For members of

both the ACCL and FFL, pro-life feminism involved efforts to ban sex

discrimination.

D. The Decline of Pro-Life Feminism

Organizations like the ACCL and FFL influenced debate about the PDA

and contraceptive funding. However, for several reasons, both organizations

gradually lost influence. In the late 1970s and early 1980s, the New Right

mobilized and forged an influential partnership with the pro-life movement.

The New Right offered financial support and political influence to abortion

opponents, and as its leaders impacted the pro-life agenda, organizations like

FFL and the ACCL found themselves marginalized.

In the same period, Phyllis

Schlafly and opponents of the Equal Rights Amendment (ERA) stressed that the

women’s movement had endorsed abortion rights and excluded any women who

disagreed.

ERA opponents helped to convince antiabortion activists that it was

politically impossible to oppose abortion while supporting the women’s

movement. Finally, pro-choice organizations like NOW, the National Abortion

Rights Action League (NARAL), and the Planned Parenthood Federation of

America (Planned Parenthood) began arguing that pro-lifers and anti-feminists

were one and the same.

By the start of the 1980s, for all of these reasons,

organizations like the ACCL and FFL lost influence, and antiabortion feminism

came to seem a contradiction in terms.

First, the ultimately unsuccessful battle about the ERA played an important

part in the marginalization of pro-life feminism. Proposed by first-wave feminist

Alice Paul in 1923, the ERA would have provided that “equality of rights under

the law shall not be abridged in the United States or by any State on account of

sex.”

In the early 1970s, building on litigation under the Fourteenth

Amendment or Title VII of the Civil Rights Act of 1964, feminists reintroduced

the ERA, launching a constitutional struggle that would last more than a

decade.

Initially, the ERA seemed likely to pass, but by 1972, a number of

92. See, e.g., CYNTHIA GORNEY, ARTICLES OF FAITH: A FRONTLINE HISTORY OF THE

ABORTION WARS 347 (1998); MICHELE MCKEEGAN, ABORTION POLITICS: MUTINY IN THE

RANKS OF THE RIGHT 18–25 (1992).

93. See, e.g., Ziegler, supra note 47, at 574.

94. See, e.g., D

ONALD CRITCHLOW, PHYLLIS SCHLAFLY AND GRASSROOTS CONSERVATISM: A

WOMAN’S CRUSADE 281 (2005) (on the creation of the relationship between ERA and

abortion opponents); B

EFORE ROE V. WADE, supra note 23, at 279.

95. See, e.g., infra notes 136, 143, and accompanying text.

96. H.J. Res. 75, 68th Cong. (1923)

97. See, e.g., Serena Mayeri, Constitutional Choices: Legal Feminism and Historical Dynamics

of Change, 92 C

ALIF. L. REV. 755, 761, 795 (2004) (“In the new climate of feminist

mobilization and concomitantly increasing publicity, the ERA had become a promising focal

point for women’s rights activism.”).

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WOMEN’S RIGHTS ON THE RIGHT 247

antifeminist groups formed to stall its progress.

A veteran conservative activist and former congressional candidate,

Schlafly launched a powerful campaign to defeat the ERA. Initially, her

organization, Stop Taking Our Privileges Equal Rights Amendment (STOP

ERA), focused on the impact of the ERA on homemakers’ rights and divorce law

rather than on the connection between the Amendment and abortion.

In May

1972, for example, The Phyllis Schlafly Report argued: “[the] ERA will wipe out

the financial obligation of a husband and a father to support his wife and

children—the most important of all women’s rights.”

100

Later in the 1970s, Schlafly recognized that “feminist support for abortion

rights had imbued the abortion issue with associations that could be used to

mobilize a wide array of cultural conservatives.”

101

In 1974, The Phyllis Schlafly

Report contended: “ERA Means Abortion.”

102

As Schlafly explained: “The

women’s libbers expect E.R.A. to be the constitutional means to assure and

make permanent their goal of unlimited abortion on demand.”

103

Schlafly

contended that the ERA would expand women’s abortion rights: while the

Supreme Court had upheld state-level bans on the public funding for abortion in

1977, the story went, the ERA would make “[a]ny restriction of abortion”

unconstitutional since such a law would be viewed as “sexist” and impacting

“one sex only.”

104

These efforts made an impact on pro-life activists. Leaders of the NRLC

began urging its members to protest the federal funding of International

Women’s Year (IWY), a major feminist meeting, suggesting that IWY would

promote abortion.

105

Antiabortion newspapers carried stories protesting the

alleged expulsion of abortion opponents from a series of meetings in the lead-up

to IWY.

106

In 1977, the NRLC went so far as to vote for a resolution opposing

98. See, e.g., Mary Frances Berry, WHY ERA FAILED: POLITICS, WOMEN’S RIGHTS, AND THE

AMENDING PROCESS OF THE CONSTITUTION 66 (1988) (describing the foundation of STOP

ERA).

99. See, e.g., D

AVID FARBER, THE RISE AND FALL OF MODERN AMERICAN CONSERVATISM: A

SHORT HISTORY 145 (2010); SERENA MAYERI, REASONING FROM RACE: FEMINISM, LAW,

AND THE

CIVIL RIGHTS REVOLUTION 82 (2011); CHRISTINE STANSELL, THE FEMINIST

PROMISE: 1792 TO THE PRESENT 341 (2010).

100. Phyllis Schlafly, The Fraud Called the ERA, P

HYLLIS SCHLAFLY REPORT, May 1972, at 1

(on file with the Schlesinger Library, Harvard University in the Phyllis Schlafly Report

Collection).

101. B

EFORE ROE V. WADE, supra note 23, at 279.

102. See, e.g., I

LENE ROSE FEINMAN, CITIZENSHIP RITES: FEMINIST SOLDIERS AND FEMINIST

ANTIMILITARISTS 116 (2000).

103. Phyllis Schlafly, ERA’s Assist to Abortion, P

HYLLIS SCHLAFLY REPORT (1974) (on file with

the Gerald Ford Memorial Library, University of Michigan in the American Citizens

Concerned for Life Papers, Box 17). For analysis of Schlafly’s shifting strategies and her

role in the ERA debate more generally, see J

ANE MANSBRIDGE, WHY WE LOST THE ERA

104 (1986); DONALD T. CRITCHLOW, PHYLLIS SCHLAFLY: GRASSROOTS CONSERVATISM

AND A

WOMAN’S CRUSADE 212–242 (2005).

104. See P

HYLLIS SCHLAFLY, THE POWER OF THE POSITIVE WOMAN 89 (1977).

105. See, e.g., Ziegler, supra note 47, at 586.

106. See id.

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248 BERKELEY JOURNAL OF GENDER, LAW & JUSTICE

the ERA.

107

Pro-life feminists also lost ground when the New Right and Religious

Right began to reshape American politics. Social conservative leader Paul

Weyrich, a veteran political operative, identified abortion as an important wedge

issue that could bring socially conservative Democrats into the Republican Party

fold.

108

Weyrich helped to engineer the creation of the New Right and the

Religious Right, political movements that brought together opposition to

abortion and the ERA.

109

Significantly, as the Article will show, the New Right

and Religious Right offered the pro-life movement valuable financial support

and political influence. As the pro-life movement identified more closely with

social conservatism, feminism became synonymous with the pro-choice

movement.

As they described it, “leaders of the New Right rose from the ashes of the

Watergate scandal: the result of ‘impatience with the shambles of the Nixon-

Ford Administration.’”

110

Weyrich, a co-founder of the Heritage Foundation, a

conservative think-tank, and a co-founder of the Committee for the Survival of a

Free Congress (CSFC),

111

a group dedicated to electing social conservatives to

Congress, saw his mission as the creation of a grassroots, politically pragmatic

Right, a complement to the intellectuals who had dominated conservatism.

112

explained to the press in November 1977, “We [now] talk about issues that

people care about, like gun control, abortion, taxes, and crime.”

113

Weyrich’s

organizations provided valuable training and money to fledgling social

conservative organizations: by 1978, the CSFC and other conservative political

action committees, including the National Conservative Political Action

Committee (NCPAC), had raised more than $3 million for conservative

candidates.

114

While Weyrich provided political strategy for these groups,

Richard Viguerie and his direct-mail organization offered lobbying and

107. See id. at 589.

108. See M

CKEEGAN, supra note 92, at 20–21 (explaining that abortion was chosen as the

“keystone” of the Christian organizing strategy because it could divide the Democratic

Party).

109. See, e.g., Robert Post & Reva B. Siegel, Roe Rage: Democratic Constitutionalism and

Backlash, 42 H

ARV. C.R.-C.L. L. REV. 373, 421 n.226 (2007) (“It was Weyrich’s idea to

blur the distinctions between secular right-wingers, fundamentalist Protestants, and anti-

abortion Catholics by merging abortion into the panoply of new right, ‘pro-family issues.’”).

110. See Ziegler, supra note 47, at 588 (citing Barry Sussman, “New Right” in American Politics

May Be Just an Expression of Discontent, W

ASH. POST, Mar. 5, 1978, at C3).

111. Id.

112. See, e.g., D

OMINIC SANDBROOK, MAD AS HELL: THE CRISIS OF THE 1970S AND THE RISE OF

THE

POPULIST RIGHT 330–31 (2011) (describing how Weyrich envisioned the New Right

going “beyond think tanks and lobby groups” to include “ordinary people”).

113. D

ONALD T. CRITCHLOW & NANCY MACLEAN, DEBATING THE AMERICAN CONSERVATIVE

MOVEMENT: 1945 TO THE PRESENT 161 (2009).

114. Chip Berlet, The New Political Right in the United States: Reaction, Rollback, and

Resentment, in C

ONFRONTING THE NEW CONSERVATISM: THE RISE OF THE RIGHT IN

AMERICA 71, 83 (Michael J. Thompson ed., 2007); ALAN CRAWFORD, THUNDER ON THE

RIGHT: THE “NEW RIGHT” AND THE POLITICS OF RESENTMENT 70 (1980); DANIEL K.

WILLIAMS, GOD’S OWN PARTY: THE MAKING OF THE CHRISTIAN RIGHT 169 (2010).

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WOMEN’S RIGHTS ON THE RIGHT 249

fundraising services.

115

In 1980, Viguerie had raised between $35 and $40

million for his clients.

116

The newly powerful Religious Right worked closely with Weyrich and

Viguerie.

117

The Religious Right attracted a variety of religious conservatives

opposed to busing, affirmative action, the ERA, abortion, and Supreme Court

decisions, such as Engel v. Vitale,

118

restricting school prayer.

119

Historians point

to a number of long- and short-term trends that contributed to the rise of this

form of social conservatism. For example, the fragmentation of the civil-rights

movement of the 1950s and 1960s, the rapid demographic growth of evangelical

Protestants, and the migration of a significant number of Americans to states in

the Sunbelt.

120

Members of the Religious Right themselves claimed to have been

inspired by important cultural, social, and economic changes that took place in

the 1960s and 1970s: the Supreme Court had banned school prayer and had

legalized abortion, the women’s movement had won influential allies in

criticizing some aspects of the traditional family, and gays and lesbians became

more visible and more vocal in demanding equal treatment.

121

It made a good deal of strategic sense for pro-lifers to forge a political

alliance with the New Right and Religious Right.

122

In the late 1970s, the

115. On Viguerie’s direct-mail services, see SARA DIAMOND, SPIRITUAL WARFARE: THE

POLITICS OF THE CHRISTIAN RIGHT 57–58 (1989) (describing how Viguerie raised $100,000

in his first year and mailed “more than 20 million letters” by 1969); D

AVID M. RICCI, THE

TRANSFORMATION OF AMERICAN POLITICS: THE NEW WASHINGTON AND THE RISE OF

THINK TANKS 167 (1993) (explaining that Viguerie saw direct mail as a way to advertise

“the ideas of organizations or causes that are outside ‘the mainstream’”).

116. S

ANDBROOK, supra note 112, at 329. For further discussion of Viguerie’s direct mail empire,

see Gillian Peele, American Conservatism in Historical Perspective, in C

RISIS OF

CONSERVATISM?: THE REPUBLICAN PARTY, THE CONSERVATIVE MOVEMENT AND

AMERICAN POLITICS AFTER BUSH 15, 22 (Joel D. Aberbach & Gillian Peele eds., 2011).

117. See S

ANDBROOK, supra note 112, at 357.

118. 370 U.S. 421 (1962).

119. See Joel Kotkin, Ready on the Right: Christian Soldiers Are on the March, W

ASH. POST

Aug. 25, 1979, http://www.washingtonpost.com/wp-

dyn/content/article/2007/05/15/AR2007051501268.html. Jerry Falwell, the head of the

Moral Majority, a leading Religious Right organization, stressed the diversity of his own

organization and of social conservatives more generally. Id.

120. See generally S

ARA DIAMOND, NOT BY POLITICS ALONE: THE ENDURING INFLUENCE OF

THE

CHRISTIAN RIGHT (1998) (detailing how the Christian right used ideas of “family

values” to infuse evangelical beliefs into local and national discussions on abortion);

DARREN DOCHUK, FROM BIBLE BELT TO SUNBELT: PLAIN-FOLK RELIGION, GRASSROOTS

POLITICS, AND THE RISE OF EVANGELICAL CONSERVATISM (2011) (explaining how

evangelicals organized a powerful political machine that inspired Richard Nixon’s “Southern

Solution,” and played an influential role in the victories of Ronald Reagan);

CLYDE WILCOX

& CARIN ROBINSON, ONWARD CHRISTIAN SOLDIERS?: THE RELIGIOUS RIGHT IN AMERICAN

POLITICS (4th ed. 2010) (describing the expansion of the Christian Right during the Bush

Administration).

121. See David Snowball,

CONTINUITY AND CHANGE IN THE RHETORIC OF THE MORAL

MAJORITY 94–100 (1991); What Is the Moral Majority?, in THE GENERAL MATERIALS OF

THE

MORAL MAJORITY (Aug. 1979) (on file with Liberty Univ.).

122. G

ORNEY, supra note 92, at 347 (explaining that pro-lifers embraced “the New Right, with

the direct mail expertise, the money-funneling PACs, and the splendid surge of

reinforcements the New Right leaders appeared to have summoned from the ranks of the

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250 BERKELEY JOURNAL OF GENDER, LAW & JUSTICE

antiabortion movement struggled financially and remained politically isolated.

For example, the NRLC, the largest national antiabortion organization, found

itself $25,000 in debt in 1978.

123

By contrast, the New Right and Religious Right

commanded impressive financial resources and political influence. In the same

period, one influential group, Christian Voice, had 100,000 members and a

governing board that included fourteen members of Congress.

124

The Moral

Majority, another Religious Right organization, had a $3 million budget in its

first year, one third of which was raised in one month alone.

125

Described by its

founder Jerry Falwell as a “coalition capable of steering America away from

liberal, humanist and secular tendencies,” the Moral Majority was also quickly

establishing its political influence.

126

By December 1979, Falwell was reaching

an audience of 2.5 million and was raising $1 million a week in mail

contributions.

127

United, social conservatives and abortion opponents also appeared likely to

be an influential voting block. Newsweek correspondent Allan Mayer reported

that approximately 2 million new voters in 1980 would be fundamentalist

Christians.

128

In July 1979, Benjamin Armstrong, the director of the National

Association of Religious Broadcasters, predicted that the number would be even

higher, since on a weekly basis, religious broadcasters reached an estimated 47

percent of the American population.

129

For the most part, organizations in the Religious Right or the New Right

identified with antifeminism. As Michelle McKeegan explains: “[I]t was the

women’s movement that first galvanized born again Christians to political

action.”

130

Nationally, as a spokesperson for the Moral Majority explained in the

New York Times in August 1980, evangelicals committed to ending abortion

were also necessarily opposed to “the proposed equal rights amendment, civil

rights for homosexuals, and all who advocate those things.”

131

By allying with

social conservatives, groups like the NRLC became more hostile to the reforms

sponsored by both pro-choice and pro-life feminists, such as the ERA.

132

Leaders

Protestant evangelicals”).

123. See, e.g., C

ONNIE PAIGE, THE RIGHT TO LIFERS: WHO THEY ARE, HOW THEY OPERATE,

AND

HOW MAKE THEIR MONEY 85–87 (1983).

124. See, e.g., Kotkin, supra note 119.

125. See id.

126. Id.

127. See Maxwell Glen, The Electronic Ministers Listen to the Gospel According to the

Candidates, N

AT’L J., Dec. 22, 1979, at 2142–43.

128. Allan Mayer, A Tide of Born-Again Politics, N

EWSWEEK, Sep. 15, 1980, at 28.

129. Id.

130. M

CKEEGAN, supra note 92, at 18–19 (describing how pro-life organizations saw abortion as

“upset[ting] the natural division of roles” between men and women).

131. Dudley Clendinen, Rev. Falwell Inspires Evangelical Vote, N.Y. T

IMES, Aug. 20, 1980, at

B22.

132. See Post & Siegel, supra note 109, at 422–23 (explaining the new right mobilized

conservative Protestants to oppose abortion by capitalize on their “entrenched fundamentalist

opposition to the ERA”); Ziegler, supra note 47, at 583–88 (describing how the the

antiabortion movement worked to isolate moderate anti-abortion advocates).

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WOMEN’S RIGHTS ON THE RIGHT 251

of the organization began criticizing the ERA and explaining that antiabortion

advocates were “at odds with everything [pro-choice feminists] represent.”

133

Finally, organizations like NARAL, NOW, and Planned Parenthood began

contending that all abortion opponents were antifeminist, further marginalizing

pro-life women. In the early 1970s, abortion-rights leaders had framed

opposition to abortion primarily as an effort to impose the religious beliefs of

some Americans on everyone else.

134

For example, NARAL leader Larry Lader

advised his colleagues to argue that antiabortion views represented “a minority

religious position” and did not “have the right to force the majority to think as

they do.”

135

Gradually, pro-choice organizations instead stressed the connection

between the pro-life movement and the New Right. For example, at the 1974

NOW National Conference, Karen DeCrow, the organization’s new President,

led the delegates in voting for a resolution labeling all antiabortion activists

“determined opponents of women’s rights.”

136

DeCrow put the point succinctly:

“I don’t think you can be a feminist and be against the right of a woman to

choose abortion.”

137

NARAL began making similar claims the same year, after Sarah

Weddington, best known as one of the attorneys who had litigated Roe, became

the organization’s president.

138

As early as the spring of 1974, Weddington told

the NARAL Board that “women cannot take advantage of opportunities

guaranteed under ERA if they cannot control their fertility.”

139

After becoming

NARAL President, Weddington, like DeCrow, argued that opponents of abortion

wanted to enforce traditional gender stereotypes against women.

140

In 1975,

Weddington asserted that pro-lifers did not want to protect babies but rather

intended to keep women “barefoot and pregnant.”

141

In 1978, Faye Wattleton, the new President of Planned Parenthood, began

133. A Fighter for the Right to Life, EBONY MAGAZINE, Apr. 1978, at 92 (quoting Dr. Jefferson,

the leader of the NRLC, who explained the organization’s hostility to the entire agenda

pursued by pro-choice feminists). On pro-lifers’ new hostility to the ERA and the broader

pro-choice feminist platform, see Ziegler, supra note 47, at 583–88 (describing how the

antiabortion movement worked to isolate moderate anti-abortion advocates). On the NRLC’s

opposition to the ERA, see Brown, supra note 107, at 1.

134. See Memorandum from Larry Lader to NARAL Board Members et al. (1972) (on file with

the Schlesinger Library, Harvard University in the NARAL Papers, MC 313, Carton 8).

135. Id.

136. Laurie Johnston, NOW Elects Syracuse Lawyer as Head, N.Y. T

IMES, May 28, 1974, at 29.

137. Id.

138. See Joan Zyda, Abortion Rights Leader Argues for a Free Choice for Women, C

HI. TRIB.,

Dec. 9, 1975, at B1 (explaining how Weddington set a precedent for giving women the

freedom of choice and how her organization opposed the Catholic Church’s support for anti-

abortion laws).

139. NARAL Executive Committee Meeting Minutes (Apr. 13, 1975) (on file with the

Schlesinger Library, Harvard University in the Betty Friedan Papers, 71-62-81-M23, Carton

43, Folder 1462).

140. See Zyda, supra note 138, at B1.

141. See id.

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252 BERKELEY JOURNAL OF GENDER, LAW & JUSTICE

to spread similar claims within her own organization. Like her colleagues,

Wattleton suggested that the pro-life movement was more interested in

oppressing women than in assisting unborn or vulnerable persons. In particular,

she contended that pro-life activists were simply “[m]asquerading under the

misnomer ‘Right to Life.’”

142

By the fall of 1980, Wattleton had developed an

attack on the antiabortion movement itself. She described opponents of abortion

as “an increasingly vocal and at times violent minority which seeks to deny all of

us our fundamental rights of privacy and individual decision-making.”

143

Over

the course of the 1970s, women’s groups and family-planning organizations

made clear that pro-life women were not welcome within their ranks. Pro-life

feminists could no longer find a home in either the antiabortion movement or in

mainstream pro-choice women’s organizations.

Throughout the 1970s, members of the ACCL and FFL had influenced the

antiabortion movement, encouraging major organizations to refrain from

opposing contraception and working with supporters of abortion rights on issues

from the ERA to pregnancy disability legislation. These organizations favored

abortion all the while sharing a sympathetic view of other law reforms endorsed

by pro-choice feminism.

In later decades, a group of socially conservative women remade the idea

of pro-life feminism. This new vision included opposition to the very reforms for

which FFL and ACCL members had campaigned: among other things,

government subsidized daycare and healthcare and protections against sex

discrimination. As this new understanding of antiabortion feminism emerged,

struggle about the meaning of true feminism intensified. Part II looks next at this

step in the movement’s evolution.

II.

MAMA GRIZZLIES, AUTHENTIC FEMINISTS, AND SMART GIRLS: THE PRO-

IFE FEMINIST DIVIDE

In the early 1980s, the renaissance of pro-life feminism seemed

improbable. Members of antifeminist organizations, among them Concerned

Women for America (CWA), became the most visible image of women in the

broader pro-life movement. If Phyllis Schlafly’s STOP ERA was the leading

antifeminist group of the 1970s, CWA appeared to be its equal in the 1980s.

144

However, CWA hardly embraced pro-life feminism. Founded in 1979 by

Beverly LaHaye, CWA was designed to be an alternative to feminism and

142. Helen Epstein, Abortion: An Issue That Won’t Go Away, N.Y. TIMES MAG., Mar. 30, 1980,

at 44.

143. Planned Parenthood Shifting to a Patriotic Theme, N.Y.

TIMES, Oct. 5, 1980, available at

http://query nytimes.com/mem/archive/pdf?res=FA0C11FA385410728DDDAC0894D8415

B8084F1D3.

144. Indeed, in 1986, the CWA was more than ten times larger than Schlafly’s Eagle Forum, a

successor to STOP ERA. See Mary T. Schmich, A Spokeslady of the Right, C

HI. TRIB., Mar.

23, 1986, at B1.

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WOMEN’S RIGHTS ON THE RIGHT 253

NOW: a group for Christian women who opposed the ERA and abortion.

145

Beginning at its first national convention in 1984, CWA described itself as

an alternative to the women’s movement, which, in turn, was framed as “among

the evils besetting America.”

146

In the mid-1980s, CWA argued that the idea of

feminism had lost support because feminists had done substantial damage to the

American social fabric. As LaHaye stated in 1986: “NOW’s ideas are no more

popular than the Susan B. Anthony dollar. . . . The feminist coin came out of

circulation because nobody liked it. Well, nobody really likes their unisex,

lesbian, radical philosophy either.”

147

LaHaye also portrayed feminism as selfish and damaging to women’s self-

esteem. She asserted that women’s priorities should be their “husband, . . .

children, . . . [and] family first, and then whatever else . . . is really a secondary

role.”

148

Labeling feminists as man-haters, other CWA members argued that

feminists could not love themselves, since, as one CWA member stated, “[y]ou

cannot have a feeling of self-worth, if you harbor and display bitterness and

hatred toward the male sex.”

149

By the late 1980s, when it claimed a membership twice as large as that of

NOW, CWA began focusing on efforts to encourage women to vote and run for

public office.

150

In 1987, LaHaye presented political engagement as a natural

extension of women’s role as caretakers.

151

CWA thus stated that women wanted

to “be able to influence and to test those institutions that are going to affect

[their] famil[ies].”

152

Conservative female leaders, as CWA insisted, were “not

feminist.”

153

In the mid-1990s, as claims about post-abortion trauma syndrome began to

spread and to figure in debate about partial-birth abortion,

154

CWA began to

emphasize that the pro-life movement not only helped fetuses, but also protected

the health of women.

155

Although the FFL did not have the same influence as did the CWA, FFL

145. On the founding of CWA, see Mary Battiata, Beverly LaHaye and the Hymn of the Right;

Leading Her Women in Support of Reagan, Bork, and SDI, W

ASH. POST, Sept. 26, 1987, at

C1.

146. Noel Osment, CWA Fights for Conservative Causes, S

AN DIEGO UNION, Sept. 18, 1984, at

D1.

147. Schmich, supra note 144, at B1.

148. Id.

149. Beverly LaHaye, Why Feminism No Longer Sells, H

ERITAGE FOUND. REP. (1987), available

at http://www heritage.org/research/lecture/why-feminism-no-longer-sells.

150. See id.; see also Timothy J. McNulty, Politically Astute Women Advance from Filling

Envelopes to Filling Ballots, C

HI. TRIB., Feb. 28, 1988.

151. See LaHaye, supra note 149.

152. Id.

153. Id.

154. See supra note 6 and accompanying text.

155. On the CWA’s use of such arguments, see, e.g., S

ARA DUBOW, OURSELVES UNBORN: A

HISTORY OF THE FETUS IN MODERN AMERICA 155 (2010). For a study of the CWA’s battle

against secularism in the courts, see, e.g., S

ARAH BARRINGER GORDON, THE SPIRIT OF THE

LAW: RELIGIOUS VOICES AND THE CONSTITUTION IN MODERN AMERICA 133–168 (2010).

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254 BERKELEY JOURNAL OF GENDER, LAW & JUSTICE

leaders also began to develop new arguments for pro-life feminism. In the 1980s

and early 1990s, the FFL maintained support for the ERA while insisting that no

one could reconcile abortion with a commitment to sex equality. According to

the FFL, feminists should support laws that allowed women to work and raise

children—like the ERA or federal laws on childcare or medical leave—while

avoiding alleged “false” solutions like abortion.

Throughout the early 1980s, FFL had continued to function as a discussion

group.

156

In 1989, when the Supreme Court decided Webster v. Reproductive

Health Services,

157

the decision that had chipped the most away at Roe v. Wade,

leaders of the organization submitted an amicus brief in the hope that FFL would

“develop more influence in the antiabortion movement by attracting all those

moderates on the abortion fence.”

158

Led by Missouri activist Rachel MacNair, FFL publicized claims similar to

those made by activists in the 1970s. One group of arguments involved society’s

failure to provide women alternatives to abortion or to hold men responsible for

their own part in reproduction.

159

Another contention suggested that support for

abortion violated feminist commitments to “sisterhood, unity, togetherness, [and]

nurturance.”

160

MacNair and FFL also formulated arguments about the impact of the

abortion campaign on the women’s movement, a struggle that “drained the

women’s movement of power and money” that could have been used to ratify

the ERA, fund public daycare, or pass the Family Medical Leave Act.

161

Moreover, the 1989 version of FFL made more explicit a belief that

women were and ought to be defined by biology.

162

According to this argument,

abortion was problematic because it “defiles the essence of womanhood by

stripping away that which is most female, the act of childbearing.”

163

At the

same time, however, the FFL continued to defend the ERA, calling for a

provision explicitly banning abortion as a practice “which hurt[s] sexual equality

and hurt[s], . . . cheat[s], and exploit[s] individual men and women.”

164

In spite of its modified arguments, FFL remained a relatively poor and

156. See Margaret Stafford, Feminist Group Marches to Its Own Drum, L.A. TIMES, Feb. 10,

1991.

157. 492 U.S. 490 (1989). Webster upheld several controversial provisions of a Missouri statute,

including a preamble declaring that life began at conception, a measure prohibiting the use of

public funds or facilities for abortion, and a provision requiring that before an abortion would

be performed, physicians had to perform particular tests in order to ascertain fetal viability.

Id. at 507–21.

158. See Pamela Reynolds, A Different Voice in the Abortion Debate, B

OS. GLOBE, Aug. 11,

1989.

159. See id.

160. Id.

161. Id.

162. See id.

163. Id.

164. T

HE INCLUSIVE EQUAL RIGHTS AMENDMENT (1989) (on file with the University of Kansas,

Wilcox Collection).

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WOMEN’S RIGHTS ON THE RIGHT 255

powerless group. In 1989, it had approximately 2,000 members and a budget of

less than $10,000.

165

NOW and other mainstream feminist organizations

excluded pro-life women and dismissed their concerns. Annually, FFL applied

for and was denied a table at the NOW National Convention.

166

In 1989, Patricia

Ireland, the head of the organization, dismissed FFL as “another front . . . for the

right to life movement.”

167

At the same time, FFL members remained

uncomfortable with the pro-life mainstream. For example, Mary Krane Derr, the

leader of a Chicago-based chapter of FFL, told the Boston Globe that she was

“repulsed” by the mainstream movement’s “lack of sympathy to the plight of

women seeking abortion.”

168

In order to expand the group’s base, in the early 1990s, Derr and MacNair

began publicizing a different set of claims, those involving the history of

antiabortion feminism. Derr edited a controversial anthology of writings by first-

wave feminists and suffragettes on the subject of abortion entitled Man’s

Inhumanity to Women Makes Countless Infants Die: The Early Feminist Case

Against Abortion.

169

MacNair explained: “The early feminists made clear that

they regarded abortion as one of the greatest wrongs against women.”

170

roughly the same period, the organization circulated a pamphlet, entitled “Over a

Century of Pro-Life Feminism,” which described feminists from Elizabeth Cady

Stanton to Margaret Sanger as part of a pro-life “feminist tradition of working

for a society in which women can choose reproductive alternatives that are truly

life-affirming for themselves and their children.”

171

By 1992, several events had created a potentially sympathetic audience for

FFL’s historical claims. First, in the wake of Webster, antiabortion activists were

put on the defensive by a supposed pro-choice backlash to the decision.

172

Whatever the impact of Webster on the pro-choice movement, politicians on

both sides of the aisle perceived that discussion had changed. The victories of

pro-choice gubernatorial candidates in New Jersey and Virginia were attributed

165. See Reynolds, supra note 158, at 4.

166. See Valerie Richardson, Not Every Feminist Is in the Pro-Choice Camp, W

ASH. TIMES, July

23, 1990, at A1.

167. Id.

168. See Barbara Brotman, Feminists, But Abortion Opponents Too, C

HI. TRIB., Nov. 12, 1989,

available at http://articles.chicagotribune.com/1989-11-12/news/8901300381_1_feminists-

antiabortion-abortion-opponents.

169. See Feminists for Life Reveals Suffragists’ Pro-life Stand, P.R.

NEWSWIRE, Mar. 14, 1991.

Of course, the historical account offered by Feminists for Life has provoked controversy.

See, e.g., Allison Stevens, Susan B. Anthony’s Abortion Position Spurs Scuffle, W

OMEN’S

NEWS (Oct. 6, 2006), http://www.womensenews.org/story/abortion/061006/susan-b-

anthonys-abortion-position-spurs-scuffle. For an analysis of the historical merit of these

contentions, see generally Thomas, supra note 20.

170. See Thomas, supra note 20, at 12.

171. O

VER A CENTURY OF PRO-LIFE FEMINISM (1991) (on file with the University of Kansas,

Wilcox Collection).

172. See, e.g., Margaret Wolf Freivogel, Abortion Foes March to High Court, S

T. LOUIS POST

DISPATCH, Jan. 23, 1990, at 1A.

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256 BERKELEY JOURNAL OF GENDER, LAW & JUSTICE

to the anti-Webster backlash,

173

as was the defeat of new restrictions in the

Florida State Legislature. Republican leaders, including Party Chairman Lee

Atwater, began to suggest that opposition to Roe was not a defining commitment

of the GOP.

174

Later, even former NRLC leader Dr. John Willke and

antiabortion researcher David Reardon admitted that pro-lifers needed to do

more to establish that their cause had a neutral or even positive effect on

women’s rights.

175

Second, the impressive number of women elected to

Congress in 1992—so many that the press dubbed the election “the Year of the

Woman”—questioned how women’s rights could be reconciled with opposition

to abortion.

176

FFL stood ready with answers to those questions. As part of this effort, in

1992, MacNair announced the formation of the Susan B. Anthony List (SBAL),

a political action committee designed to help women opposed to abortion to

secure elected office.

177

MacNair made clear that the organization would seek

presumably liberal candidates with “good records on women’s rights—probably

not Phyllis Schlafly.”

178

By 1998, though, in functioning independently from FFL, the SBAL

endorsed a more conservative vision of antiabortion feminism. Its president, Jane

Abraham, spoke in favor of restrictions on women’s abortion rights, including a

ban on the intact dilation-and-extraction abortion procedure (popularly known as

partial-birth abortion) and a measure criminalizing the act of bringing a minor

across state lines for the purpose of obtaining an abortion.

179

The SBAL

condemned alternatives to abortion of the kind of which Marjory Mecklenburg

or Rachel MacNair had approved, such as a measure presented by

Congresswoman Nita Lowey that would have included contraception in the

health coverage of federal employees.

180

The SBAL shifted to the political right for several reasons. First, as of

1994, because of the previous ties of the Republican Party to the pro-life

movement, the only candidates that the SBAL was able to see elected were

Republican.

181

The 1994 election season helped the organization secure further

173. Donald Baker & Richard Harris, Republicans to Gather for Post-Mortem in Va; Abortion

Issue, Party’s Tax Debt on Agenda, W

ASH. POST, Dec. 1, 1989.

174. See Freivogel, supra note 172, at 1A. For further discussion of Republican calls for a retreat

from opposition to abortion, see Baker & Harris, supra note 173.

175. See Reva B. Siegel, Dignity and the Politics of Protection: Abortion Restrictions under

Casey/Carhart, 117

YALE L.J. 1694, 1715–18 (2008) (explaining Willke and Reardon’s

subsequent revelations about the importance of appealing to women).

176. For FFL’s discussion of the issue, see Valerie Richardson, Feminist Launches PAC for Pro-

Lifers, W

ASH. TIMES, Nov. 7, 1992, at A1.

177. See id.

178. Id.

179. See Juliet Elperin, 2 Lawmakers Seek to Add Nuances to Emotional Abortion Debate, W

ASH.

POST, June 21, 1998, at A2.

180. Id.

181. See Eliza Newton Carney, That Was the Year That Wasn’t, N

AT’L J., Nov. 19, 1994, at 2751

(discussing how SBAL helped get the GOP elected in 1994).

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WOMEN’S RIGHTS ON THE RIGHT 257

Republican dollars and supporters. When Jane Abraham and other Republican

women assumed positions of leadership in the organization, the SBAL had

further reason to endorse a conservative agenda (indeed, some of the SBAL’s

leaders, including Abraham, were married to Republican, antiabortion members

of Congress).

182

By 2000, then, there were two competing strands of pro-life feminism.

One, represented by FFL, at least somewhat resembled the pro-life feminism of

the 1970s. Led by a new president, Serrin Foster, FFL continued sponsoring

legislation that would provide “alternatives to abortion.”

183

Foster and FFL

continued to oppose cutbacks on welfare, favored access to or funding for

contraception, and began an initiative to fund daycare and other forms of support

for mothers in college.

184

By contrast, without offering a full account of its

philosophy, the SBAL had begun to define a distinctly right-wing feminism.

A more thorough explanation of the intellectual underpinnings of

conservative antiabortion feminism appeared in the early 2000s. Among the

most influential figures in this effort was Harvard professor Mary Ann Glendon,

who authored a leading criticism of Roe titled Abortion and Divorce in Western

Law: American Failures, European Challenges.

185

By 2000, she had revealed that her opposition was religious and political as

much as professional. She became a founding member of Women Affirming Life

(WAL), a Catholic, pro-life group designed to popularize pro-woman claims.

186

The WAL had a distinctly legal bent; many of its members were law students,

and Mary Ellen Bork, the wife of noted originalist scholar Robert Bork, was a

key member.

187

At the 2000 WAL Conference, attendees called on Catholic pro-

lifers to “define a new feminism.”

188

In the following years, Glendon worked toward achieving this task. In a

2003 article, she distinguished second-wave feminism from authentic (and

presumably antiabortion) feminism.

189

As Glendon put it, 1970s pro-choice

feminism represented “a puzzling combination of . . . anger against men and

promiscuity; man-hating and man-chasing.”

190

Glendon asserted that “women

today are looking for something more responsive to their own needs and

aspirations,” and she proposed that a more pro-family and pro-life feminism

182. See Wagner, supra note 22, at 16.

183. Ruth Rosen, Feminists for No Choice, S.F.

CHRON., Nov. 6, 2003; see also Stephen Goode,

A Feminist Who Takes a Pro-Life Stand, I

NSIGHT ON THE NEWS, Oct. 1, 2001, at 36.

184. See Goode, supra note 183, at 37.

185. See generally M

ARY ANN GLENDON, ABORTION AND DIVORCE IN WESTERN LAW:

AMERICAN FAILURES, EUROPEAN CHALLENGES (1987).

186. See Kathleen Sweeney, The Female Genius and the Culture of Life, N

AT’L RIGHT TO LIFE

NEWS, Apr. 1, 2000, available at www nrlc.org/news/2000/NRL04/sween html.

187. See id.

188. Id.

189. Mary Ann Glendon, The Women of Roe v. Wade, F

IRST THINGS 1, 6 (2003).

190. Id. at 5.

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258 BERKELEY JOURNAL OF GENDER, LAW & JUSTICE

would serve that purpose.

191

Glendon reiterated these arguments in a major 2005 pro-life feminist

anthology, The Cost of “Choice”: Women Evaluate the Impact of Abortion.

There, she stressed that the definition of feminism propounded by second-wave

feminists was unsatisfying and incorrect.

192

As did other pro-life feminists like

Elizabeth Fox-Genovese, Glendon argued that socially conservative women

were truer to the spirit of a woman’s movement than were the feminist advocates

active in the 1970s.

193

Glendon’s work marked a turning point in pro-life

feminism. Instead of claiming to offer a more convincing interpretation of

progressive feminism, Glendon defined and defended an alternative to it.

It was in 2008 that socially conservative pro-life feminist ideology took

center stage in American politics, as Sarah Palin, then-Governor of Alaska,

became the Republican candidate for the vice presidency of the United States.

194

Palin first described herself as a feminist in a 2008 interview with CBS news

anchor Katie Couric, stating that she was “a feminist who believes in equal

rights” and asserting her belief that “women today [. . .] have every opportunity

that a man has to succeed and to try to have it all.”

195

Throughout the election

season, Palin offered few additional details about her definition of feminism. In

another interview, this time with the Fox News Network, Palin mentioned only

that she “subscribed to Feminists for Life,” and she suggested that the

organization represented her and her beliefs.

196

The 2008 presidential election

gave Palin a forum to discuss the issue of pro-life feminism, and partly for this

reason, the movement received unprecedented political attention. However, by

the end of the 2008 election season, she had done little to clarify the meaning of

pro-life feminism.

Eventually, Palin gave a somewhat clearer sense of her understanding of

pro-life feminism in her 2009 book, Going Rogue: An American Life.

197

Palin

endorsed “reasoned arguments for equal opportunity,” and she applauded past

feminists who had “fought battles for things like equal pay and equal access.”

198

However, in 2008, Palin spoke out against the Lily Ledbetter Pay Equity Act, a

recent equal-pay law.

199

191. Id.

192. See Mary Ann Glendon, From Culture Wars to Building a Culture of Life, in T

HE COST OF

CHOICE: WOMEN EVALUATE THE IMPACT OF ABORTION (Erica Bachiochi ed., 2004).

193. See id.; see also Elizabeth Fox-Genovese, Abortion: A War on Women, in T

HE COST OF

CHOICE: WOMEN EVALUATE THE IMPACT OF ABORTION, supra note 192, at 50–63.

194. See, e.g., Michael Abramowitz, McCain Tries to Push Past Palin Backlash, W

ASH. POST,

Oct. 23, 2008, at A3 (commenting on the public reception of Palin’s selection as a vice

presidential candidate).

195. Behind the Scenes with Sarah Palin, C.B.S. N

EWS TRANSCRIPTS, Sept. 30, 2008.

196. On the Record with Greta Van Sustern, F

OX NEWS NETWORK TRANSCRIPTS, Nov. 10, 2008.

197. See S

ARAH PALIN, GOING ROGUE: AN AMERICAN LIFE (2009).

198. Id. at 29.

199. See, e.g., Emily Douglas, Palin on Lily Ledbetter Pay Act: A Boon for Trial Lawyers (Oct. 1,

2008), available at http://www rhrealitycheck.org/blog/2008/10/01/palin-lily-ledbetter-pay-

act-a-boon-trial-lawyers.

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WOMEN’S RIGHTS ON THE RIGHT 259

The Lily Ledbetter Act came in the wake of the Supreme Court’s 2006

opinion in Ledbetter v. Goodyear Tire Co.

200

The Court had barred Ledbetter’s

otherwise valid pay-discrimination claim because she had filed her claim more

than 180 days after receiving her first discriminatory paycheck.

201

While

insisting that she endorsed the idea of equal pay, Palin framed the Lily Ledbetter

Act as being politically unnecessary:

The Ledbetter pay act - it was gonna turn into a boon for trial lawyers who, I

believe, could have taken advantage of women who . . . would allege some

kind of discrimination. Thankfully, there are laws on the books, there have

been since 1963, that no woman could be discriminated against in the

workplace in terms of anything, but especially in terms of pay. So, thankfully

we have the laws on the books and they better be enforced.

202

In Palin’s account, women already enjoyed all the legal protection they

required. The same was true of sex discrimination law more broadly. Palin

explained: “we consider ourselves more liberated than most women’s rights

groups would have us believe we are.”

203

The book tour for Going Rogue reestablished Palin’s star power, as did her

efforts to groom other pro-life female candidates for the 2010 midterm

elections.

204

Her celebrity helped her to publicize a particular understanding of

pro-life feminism. For example, at a May 2010 speech before the SBAL, Palin

described pro-life feminism as a law-reform movement that grew from and was

shaped by women’s natural role as mothers and caregivers.

205

She described pro-

life feminists as “mama grizzlies,” women who became active in politics and in

feminism in order to defend their children.

206

As importantly, she defined a

broad conservative set of legal goals—including fiscal ones—as part of

antiabortion feminism: “I think a whole lot of moms are concerned about

government handing our kids the bill . . . [We] rise up and moms say, ‘that’s

enough.’”

207

She further suggested that, contrary to the claims of left-wing feminists,

abortion did not further sex equality. Without the availability of abortion, women

could “give their child life in addition to pursuing career[s] and pursuing

education.”

208

Since women and men were already equal, women could “have it

200. 550 U.S. 618 (2007).

201. Id. at 628–34.

202. Douglas, supra note 199.

203. P

ALIN, supra note 197, at 30.

204. See, e.g., Linda Feldman, Sarah Palin: Feminist First, Tea Partyer Second, C

HRISTIAN SCI.

MONITOR, May 14, 2010.

205. Id.

206. Id.

207. Id.

208. Id.

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260 BERKELEY JOURNAL OF GENDER, LAW & JUSTICE

all.”

209

SBAL leader Marjorie Dannenfelser echoed Palin’s account of pro-life

feminism and the purpose of the SBAL’s activities: in speaking of Palin’s

speech, she stated, “This whole event is about the bond between mother and

child.”

210

Palin’s message resonated with a previously underrepresented group of

antiabortion women. Since the late 1990s, existing conservative groups like the

CWA had struggled to reach younger women.

211

Indeed, in the decade, the

organization was reported to have lost 200,000 members.

212

When Beverly

LaHaye stepped down as President of the organization, her replacement, Carmen

Pate, was meant to be a woman with whom younger, more worldly women could

relate (Pate had been divorced and even admitted to having had casual romantic

relationships before adopting a more traditional lifestyle).

213

Like Palin, Pate’s life story spoke to a younger generation of pro-life

women. In a 2004 survey in Christianity Today, more than half of evangelical

Protestants did not hold divorce to be a sin.

214

Other studies, in particular one by

the Barna group, indicated that the rate of divorce among religious conservatives

was as high as or higher than in the general population.

215

Similarly, as early as the 1990s, a majority of evangelical women reported

that they were working outside the home. In a survey of major new charismatic

churches, 75 percent of those polled disagreed with the statement that “women

should take care of the home and leave running the country to men.”

216

In roughly the same period, women were becoming more politically active

in right-wing politics. As of 2010, 55 percent of the Tea Party membership was

female, and many echoed the version of antiabortion feminism that Palin

articulated.

217

Conservative columnist Kathryn Jean Lopez defined a pro-life

feminist reformer as “[a] woman who is pro-life and pro-marriage and embraces

that which makes her different from a man while loving a man for all he is.”

218

Between 2009 and 2010, new organizations formed to promote this vision,

including As A Mom, American Mothers, and Homemakers for America.

219

209. Id.

210. Id.

211. See, e.g., 20 Year Old CWA Struggles to Find, Retain New Leader, W

ASH. TIMES, Sep. 12,

1999, at C1.

212. See id.

213. See, e.g., LaHaye Steps Down as CWA President, W

ASH. TIMES, Feb. 2, 1998, at A4.

214. Tim Safford, Can This Institution Be Saved? C

HRISTIANITY TODAY (Nov. 2004), available

at http://www.christianitytoday.com/ct/2004/november/26.52.html.

215. See Born-Again Christians Are Just As Likely to Divorce As Non-Christians, B

ARNA

UPDATE (Sep. 8, 2004), http://www.barna.org/FlxPage.aspx?PageCMD.

216. A

NDREA SMITH, NATIVE AMERICANS AND THE CHRISTIAN RIGHT: THE GENDERED

POLITICS OF UNLIKELY ALLIANCES 192 (2008).

217. See Sophie Elmhurst, The Mom Supremacy, N

EW STATESMEN, Oct. 4, 2010; Colleen

Campbell, The Palin Effect, S

T. LOUIS POST DISPATCH, June 17, 2010, at A15.

218. See Kathryn Jean Lopez, If Mama Aint’t Happy, She Might Just Run . . . For Office, N

AT’L

REV. ONLINE, June 14, 2010.

219. See Elmhurst, supra note 217, at A15. Randy Barnett similarly notes, “Women dominate the

Tea Party leadership and gatherings.” Randy Barnett, The Constitution, the Tea Party, and

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WOMEN’S RIGHTS ON THE RIGHT 261

Beginning in 2009, Republicans in Congress began adopting an

antiabortion, woman-protective argument by alleging that abortion providers and

parents chose to abort girls for discriminatory reasons. In 2009, Rep. Trent

Franks (R-AZ) argued: “what good are the hard-won liberties of voting and other

women’s rights if babies may still be aborted simply for being girls?”

220

In 2012,

Rep. Ann Marie Buerkle (R-NY) similarly contended: “There can be no rights

for women if we don’t allow them the right to live.”

221

Legislators in states like

Arizona and North Dakota similarly asserted that parents chose to abort female

fetuses and thereby “reinforce[ed] sex discrimination.”

222

The 2012 Republican

Party platform demanded protection for female unborn children against “gender

discrimination in its most lethal form.”

223

In the political arena, conservative pro-

lifers made woman-protective arguments describing women as the targets of sex-

selective abortion. In the courts, abortion opponents similarly suggested that the

state could properly protect women from the regret they would suffer after

choosing abortion.

224

Most prominently, in Carhart, the Supreme Court

described as legitimate Congress’s interest in preventing women’s regret of

“their choice to abort the infant life they once created and sustained.”

225

By contrast, left-leaning pro-life feminists still echo arguments made by

the ACCL and FFL in the 1970s. One such group, Consistent Life, celebrated its

twenty-fifth anniversary in March 2012.

226

Consistent Life, which serves as an

umbrella organization for 200 smaller groups, includes among its leaders veteran

pro-life feminists like Rachel MacNair.

227

It describes itself as “committed to the

protection of life, which is threatened in today’s world by war, abortion, poverty,

racism, capital punishment, and euthanasia.”

228

Consistent Life promotes this

the Repeal Amendment, 105 NW. U. L. REV. COL. 281, 281 (2009).

220. Trent Franks, A 21-st Century Civil-Rights Battle, W

ASH. TIMES, Apr. 20, 2009, at A23.

221. Ian Duncan, Republican Effort to Ban Abortions Based on Gender Fails in House, L.A.

TIMES (May 31, 2012), available at http://articles.latimes.com/2012/may/31/news/la-pn-

republican-effort-to-ban-abortions-based-on-gender-fails-in-house-20120531.

222. See Caitlin Coakley Beckner, Planned Parenthood Reeling as Flood of New Abortion

Restrictions Set to Become Law,

ARIZ. CAP. TIMES (Aug. 29, 2011) (discussing the campaign

for sex-selective abortion laws in Arizona), available at

http://azcapitoltimes.com/news/2011/08/29/planned-parenthood-reeling-as-flood-of-new-

abortion-restrictions-set-to-become-law/; Nick Smith, Abortion Bills Passed, B

ISMARCK

TRIB. (Mar. 15, 2013) (discussing battle for such laws in North Dakota) available at

http://bismarcktribune.com/news/local/govt-and-politics/abortion-bills-

passed/article_e6a91f40-8dee-11e2-8e19-001a4bcf887a html.

223. 2012 Republican Platform, GOP, http://www.gop.com/2012-republican-

platform_We/#Item14 (last visited Mar. 1, 2013).

224. See, e.g., infra note 223 and accompanying text.

225. Gonzales v. Carhart, 550 U.S. 124, 159 (2007); see also Tex. Med. Providers Performing

Abortion Servs. v. Lakey, 667 F.3d 570, 576–77 (5th Cir. 2012) (quoting with approval

Carhart’s language concerning post-abortion regret); Planned Parenthood Minn., N.D., S.D.

v. Rounds, 530 F.3d 724, 734–35 (8th Cir. 2008) (same).

226. On the twenty-fifth anniversary conference, see Consistent Life Twenty-Fifth Anniversary

Conference, C

ONSISTENT LIFE (Mar. 2012), http://cl25conf.wordpress.com/conference-talks-

presentations/

227. For an example of MacNair’s participation in the organization, see id.

228. See Mission Statement, C

ONSISTENT LIFE, http://www.consistent-life.org/ (last visited Mar.

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262 BERKELEY JOURNAL OF GENDER, LAW & JUSTICE

agenda through its publications and pamphlets, such as Consistently Opposing

Killing: From Abortion to Assisted Suicide, the Death Penalty, and War.

229

The organization is nonpartisan and describes itself as open to anyone who

shares any of its positions on non-violence.

230

Its official literature includes

claims reminiscent of Pat Goltz’s arguments about sexual exploitation in the

1970s. For example, in a pamphlet entitled Failed Experiment: Abortion,

Women’s Rights, Poverty, and Racism, Consistent Life argues:

It was predicted that [when abortion was legal] women would have expanded

choices in their lives. What do we say to the man who says, “If my girlfriend is

stupid enough to get pregnant, she’s going to the abortion clinic this

afternoon”? Did we really think that attitudes of that kind would not be

common among men of a sexually exploitative mindset? . . . There are times

when ready access to abortion actually reduces a woman’s choices, as support

to which she’s entitled is withdrawn because of it.

231

Similarly, All Our Lives, a group founded in 2010 by Mary Krane Derr and

Jen Roth, promotes rights for the gay and lesbian community, rights to

contraception, universal healthcare, and family leave.

232

Serving as a

clearinghouse for information and action alerts, All Our Lives, like Consistent

Life, seeks to build coalitions with progressive organizations that share some of

its substantive positions. As the organization asserts: “Most pro-choicers are not

pro-abortion; like us, they would much prefer prevention of unplanned

pregnancy and support for pregnant women so that no woman feels that abortion

is her only choice. We are much more likely to achieve those goals if we work

together.”

233

Activists inside and outside the pro-life movement contest the meaning of

pro-life feminism. Consider the controversy surrounding a recent piece posted on

Politico by pro-life activist Lila Rose.

234

In April 2012, Rose wrote what she

called a manifesto for pro-life feminists. In so doing, she offered a strongly

1, 2013).

229. See generally C

ONSISTENTLY OPPOSING KILLING: FROM ABORTION TO ASSISTED SUICIDE,

THE

DEATH PENALTY, AND WAR (Rachel MacNair et al. eds., 2011).

230. See C

ONSISTENT LIFE, BUILDING A NEW WORLD, available at http://www.consistent-

life.org/bldgnewworldflier.pdf (last visited Apr. 2, 2013) (explaining that the organization is

nonpartisan and describing the organization’s willingness to accept members who share

some of the group’s positions).

231. The Failed Experiment: Abortion, Women’s Rights, Poverty, and Racism, C

ONSISTENT LIFE,

http://www.consistent-life.org/failedexperiment.pdf (last visited Mar. 3, 2013).

232. On the founding of All Our Lives, see Who Is Behind All Our Lives?, A

LL OUR LIVES (May

13, 2012), http://www.allourlives.org/faq/who-is-behind-all-our-lives. For an explanation of

the organization’s positions, see A Primer on Pro-Life Progressivism, A

LL OUR LIVES,

http://www.allourlives.org/a-primer-on-pro-life-progressivism/ (last visited Mar. 1, 2013)

[hereinafter Primer].

233. See Primer, supra note 232.

234. Lila Rose, Battle Hymn of a Pro-Life Feminist, P

OLITICO (Apr. 2, 2012, 9:33 PM),

http://www.politico.com/news/stories/0412/74739 html.

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WOMEN’S RIGHTS ON THE RIGHT 263

conservative, traditionalist vision of pro-life feminism, one that spoke for women

“for whom the idea of artificial birth control [is] insulting,” and for women who

believe “that something precious is lost when fertility is intentionally excluded

from marriage.”

235

Rose’s comments provoked considerable controversy. On the feminist blog

Jezebel, Erin Gloria Ryan questioned whether Rose could be rightly identified as

any kind of feminist. Ryan described Rose’s views as being the “opposite of pro-

woman advocacy.”

236

All Our Lives also took issue with Rose’s comments,

suggesting that she had mischaracterized pro-life feminism: “Lila Rose’s ideal,

contraceptive-free world would not be a paradise of gender equality. It would be

place where women’s sovereignty over their own bodies was even more fragile

and imperiled than it is now. . . . Is it any wonder then that we assert a very

different vision of pro-life feminism . . . ?”

237

The controversy over Rose’s comments raised several fundamental

questions about the nature of feminism. One such question attracted attention

when Sarah Palin first defined herself as a feminist: can pro-life women be

feminists, and who decides what constitutes true feminism? A second question

became clear in the dispute between Rose and All Our Lives: who speaks for

antiabortion feminism, and what beliefs, policies, and arguments ought to define

it? There are no easy answers to these questions, but as Part III argues, the

answer to them will have an important impact on the abortion debate.

III.

PRO-LIFE FEMINISM IN CONTEXT

A good deal is at stake in understanding the roots and stakes of

contemporary pro-life feminism. First, when we view socially conservative

antiabortion feminism in its historical context, some of the tensions inherent in it

become apparent. Antiabortion feminists often rely heavily on the kind of

paternalistic, woman-protective argument highlighted in Carhart—an argument

that the law should restrict women’s abortion rights in order to protect women

from post-abortion regret.

238

At the same time, however, these advocates reject

any efforts to present women as victims or subordinates in need of help. If

women are already equal to men and in no need of legislative or judicial

assistance, why should women be protected from their own poor decisions? In

the future, those on either side of the abortion question will have to address,

exploit, or resolve this tension.

The history considered here also points to several potential areas of conflict

235. See id.

236. Erin Gloria Ryan, Anti-Abortion Feminist Is Absolutely Terrified of Sluts, J

EZEBEL (Apr. 3,

2012, 11:40 AM), http://jezebel.com/5898662/anti-abortion-feminist-is-absolutely-terrified-

of-sluts.

237. All Our Lives, Why Lila Rose Doesn’t Even Speak for Pro-Life Feminists, F

EM2PT0 (Apr.

16, 2012), http://www fem2pt0.com/2012/04/16/why-lila-rose-doesnt-speak-for-pro-life-

feminists/.

238. See D

UBOW, supra note 155, at 155–60.

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264 BERKELEY JOURNAL OF GENDER, LAW & JUSTICE

within antiabortion feminism. One particularly salient area involves the proposed

defunding of Planned Parenthood clinics, as well as the availability of

contraception and sex education.

239

Although current members of the

organization hold differing views on birth control, members of FFL have

generally supported access to contraception or sex education as one alternative to

abortion.

240

Organizations such as All Our Lives view contraception as a right

and campaign for better access to it.

241

By contrast, some conservative activists

argue that contraception either terminates pregnancies or is as morally

objectionable as abortion.

242

Another potential conflict involves the contours of current pregnancy

discrimination legislation. As we have seen, women in groups like FFL have

long supported measures like the PDA, as well as local- or college-based efforts

to support pregnant women and new mothers. Activists like Palin generally

oppose antidiscrimination laws, arguing that such reforms frame women as

victims in need of government support.

243

Finally, antiabortion feminists remain divided on the desirability of health-

care or welfare legislation. Traditionally, FFL has sided with groups like NOW

in lobbying for the expansion or maintenance of entitlement programs, a position

maintained by All Our Lives.

244

Some members of the new generation instead

present the demand for a balanced budget or a more limited government as a

defining commitment of true feminism.

245

As these conflicts demonstrate, supporters of abortion rights may be able to

find common ground with some activists who identify as pro-life. Organizations

like All Our Lives agree with abortion-rights supporters on issues like domestic-

violence protections and government-funded contraception.

246

By neglecting the

diversity of antiabortion feminists, supporters of reproductive rights may miss

out on important opportunities to work together or to identify reforms that would

make abortion less necessary—a goal major abortion-rights groups have long

endorsed.

247

239. On the battle surrounding funding for Planned Parenthood and other abortion providers, see

Planned Parenthood Battle Signals Fresh Twist in Abortion Wars, C

HRISTIAN SCI.

MONITOR, June 9, 2011; Planned Parenthood Under Fire, U.S.A. TODAY, May 26, 2011, at

3A.

240. More recently, FFL has been more equivocal about its position on contraception. See

Women’s Group Advocates for Abortion Alternatives, N

AT’L PUB. RADIO, Jan. 22, 2010.

241. See Primer, supra note 232; Mission, A

LL OUR LIVES, supra note 18.

242. See, e.g., Birth Control, A

M. LIFE LEAGUE

http://www.all.org/nav/index/heading/OQ/cat/Mzc/ (last visited Mar. 1, 2013); see also Rose,

supra note 234.

243. See, e.g., P

ALIN, supra note 197, at 29.

244. See, e.g., Melissa Healy, Feminists for Life Keys on Prevention, Not Abortion, L.A.

TIMES,

Jan. 21, 1997, at A5; see also Primer, supra note 232.

245. See, e.g., Feldman, supra note 204.

246. See Take Action for VAWA Today, A

LL OUR LIVES (Nov. 14, 2012),

http://www.allourlives.org/take-action-for-vawa-today.

247. For articulations of this goal by abortion-rights movement, see Debra Rosenberg, A New

Ambivalence, N

EWSWEEK, Oct. 8, 2007, available at 2007 WLNR 19290680 (setting out the

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WOMEN’S RIGHTS ON THE RIGHT 265

Scholars who seek to better understand or shape the abortion debate would

also benefit from a deeper understanding of pro-life feminism, for the movement

is likely to play an increasingly important role in discussions about abortion.

Justice Ginsburg’s dissent in Carhart made immediate and real the possibility

that the Supreme Court would link abortion rights to women’s equal citizenship

and to the Equal Protection Clause of the Fourteenth Amendment.

248

For pro-life

activists, it became necessary to develop a counterargument to what one abortion

opponent called “a more absolutist equal protection rationale for the abortion

right.”

249

To some, pro-life feminist claims represent a relatively non-

paternalistic, seemingly pro-woman, and potentially effective counterargument.

The influence of conservative pro-life feminist reasoning is already evident

in current legislative struggles. Since 2011, states such as Texas, Kansas,

Indiana, and Wisconsin have passed laws denying Medicaid or Title X funding

to organizations that also provide abortion services.

250

Since the passage of the

Hyde Amendment in 1976 and the introduction of federal law banning the use of

Title X monies for abortion, providers cannot use either Title X or Medicaid

funds to pay for abortion services.

251

The new defunding laws, by contrast, deny

Medicaid or Title X funds to organizations that provide or advocate for abortion

even when the funds would exclusively cover non-abortion services, such as

contraception or STI testing.

252

In 2011, by a vote of 240-185, the U.S. House of

Representatives passed an amendment to a government funding bill that would

have defunded Planned Parenthood; in the House, ten Democrats voted for the

amendment before it was subsequently defeated in the Senate.

253

In campaigning for defunding laws, Lila Rose’s Live Action and the SBAL

alleged that Planned Parenthood discriminated against women by performing

sex-selective abortions and by facilitating the sexual exploitation of minors.

254

organization’s “common-sense goal of making abortion less necessary”); Kim Mills, And

Prevention, P

ITTSBURG POST-GAZETTE, Jan. 8, 1994, at A3 (Kate Michelman of NARAL

explaining: “We intend to lead the way in making abortion less necessary . . . .”); Maralee

Schwartz and Dan Balz, Abortion Rights Group Marks Webster Decision, W

ASH. POST, July

3, 1991.

248. For examples of commentators expressing this opinion, see Sunstein, supra note 16, at A31;