The Rights of Women: A Natural Law Approach

Autonomy versus Natural Reason in Law

The New Digest is delighted to feature this guest essay by Erika Bachiochi. Erika is a legal scholar working at the intersection of legal and political theory, constitutional law and women’s rights. She is a Fellow at the Ethics and Public Policy Center and a Senior Fellow at the Abigail Adams Institute where she founded and directs the Wollstonecraft Project. Her latest book, The Rights of Women: Reclaiming a Lost Vision, was published in 2021 by Notre Dame University Press. This essay was delivered to the Catholic Bar Association in late October.

Two rival accounts of women’s rights exist in American history. These disparate accounts of women’s rights map on to rival accounts of rights per se, which themselves map onto rival accounts of who we are as human beings. To my mind, these rival accounts of the human person -- and of theories of law and rights that flow from them -- explain much of our legal and political discord today.

Whereas all Americans lawyers might once have been working within a generally Judeo-Christian understanding of the human person and the natural law tradition, today attorneys are much more apt to find themselves playing on a different anthropological field altogether, one deeply inhospitable to the nature of things. Sometimes, we’re not altogether aware of the depth of this paradigm shift, and so, we continue to employ common terms like “rights” without recognizing the term conjures entirely different realities, depending upon one’s anthropological priors. Or worse still, some hospitable to the natural law tradition would seem to grant their adversaries’ erroneous account of a concept like rights (or women’s rights), only to then reject the concept outright. This is a mistake.

Here, I will re-introduce the concept of rights as properly grounded in the natural law. And I think exploring rights within the context of women’s rights is particularly revealing. It is, it seems to me, the decades-long triumph of an erroneous account of the rights of women that has particularly worked to solidify what I take to be a deeply misguided understanding of what it means to be human.

But there’s a complication in offering a natural law approach to the rights of women which I’ll contend with as well. For a good portion of American history, after all, the “laws of nature” were understood to permit exclusion of women from participation in civil and political rights. (Indeed, in some quarters on the political right today, we’re seeing these sorts of arguments rear their head once again.) And so, following women’s rights advocates from the 18^th and 19^th centuries, I’m going to show why a natural law account properly includes the rights of women. I’ll conclude by arguing that anti-discrimination law, properly understood, is a just determination of the natural law in our day, and that, as properly understood, abortion restrictions do not discriminate against women.

So let me delve into these two rival account of rights in the American tradition: 1) the natural law approach that I’ll champion and describe in some detail and 2) the regnant autonomy-based approach that I’ll summarize here at the outset. Now clearly, I’m painting with a very broad brush, as certainly there are fractures and complications within these two accounts as well. But, for simplicity’s sake, I’m going to forge ahead with this bifurcated framework anyway.

Let’s start with the autonomy account, the playing field on which much of rights theory operates today. It’s more or less true that the autonomy account of rights finds its origins in the early modern state of nature theorists, especially John Locke (or a particularly Hobbesian reading of Locke anyway), as well as, a bit later, John Stuart Mill.

The early modern account generally views rights as protections for individual autonomy, or in Mill’s telling, individuality. This account arises out of a view of the human person as one who is naturally self-sufficient and independent -- who, of his own free will, in Locke’s telling, enters into civil society to protect himself and his property; the individual (at this level of mythic abstraction anyway) is not, by nature then, a civic or political being, necessarily dependent upon and in community with others. Even if Locke (as opposed to Hobbes) views the person as impelled by his natural sociality to enter into civil society, the mythic concept of entering in the first place suggests an original self-sufficiency we see in all the early moderns.

Indeed, Locke’s abstract individual is defined as naturally and normatively self-owning, which means that no one should rule him (and I do mean him) without his consent. Furthermore, and importantly, man’s quintessentially human reasoning power is, for the moderns, a kind of calculating power, employed to determine how one’s desires and needs may be met, and fears (of violent death, for Hobbes, and theft, for Locke) forestalled. “Natural rights” then -- those rights that exist before man enters into civil society -- thus flow from this self-ownership and individual autonomy (etymologically, a law unto oneself). And so, rights are fundamentally liberties to make one’s own decisions autonomously, with the low goal of self-preservation. Crucially, they are only secondarily concerned with duties, and then specifically duties to do no harm. In this view, then, rights come first; persons are most fundamentally bearers of rights. And rights are in some opposition to law, the community, the common good.

Today, we tend to see this account of rights as (kind of) private property-oriented on the legal/political right, and as (kind of) self-expression-oriented on the legal/political left (or Locke and Mill, respectively). That said, I do think we see the property-oriented account of autonomy rights especially prevalent in abortion rights discourse. More about that below.

Now it’s indisputable that this early modern account influenced the American founders’ understanding of the natural right to revolution and of just governance too. But it’s inaccurate to view this mythical or abstract account of the human person as the whole picture at the American Founding, or thereafter. For at the Founding and for much of American history, both republicanism and the Christian faith provided important communitarian counterbalances, and not only in the religious practice of thick Christian communities.

These communitarian counterbalances could also be found at the state and local levels in the common law, the ever-present legal backdrop to the Constitution. And the common law -- via the private law of torts, contracts, property, criminal law and the like -- was deeply informed by the natural law. But the underlying account of the person knit deeply in the natural law, and so the common (and civil) law (too), was distinctive from that offered by the state of nature theorists. From Cicero and Aquinas to William Blackstone (the natural lawyer who most influenced American lawyers), human beings were not regarded as abstract, autonomous, or self-sufficient individuals.

Rather, and this is my first point of distinction, the natural law tradition views human beings as always and everywhere concretely embedded as members of mutually reinforcing societies upon which they are inescapably dependent and to which they are responsible. Because of the kind of being the human being is, each is born into and needs a family, and the family (essential but itself incomplete) needs civic, religious and political communities to properly develop according to its highest, rational end.

Indeed, in the natural law tradition -- and this is my second key point of distinction – human reason enables human beings not merely to calculate how their needs and desires might be met with a view to self-preservation and avoidance of harm (though certainly practical rationality enables this). Additionally, and crucially, human reason -- understood as a participation in God’s eternal reason -- naturally obligates persons to avoid evil and to do good. Or, as Cicero put it, reason “summons to duty by its commands, and averts from wrong-doing by its prohibitions” (my emphasis). Contra the moderns then, we are rational beings who have -- and can naturally discern and act in accordance with -- our duties to others. The practice of the virtues enables us to do so. 

Thus, we arrive at the two features that, in my view, most distinguish the natural law account of rights from the early modern autonomy account. 1) the recognition of the concrete reality of lived interdependence and 2) regard for the human being’s unique status among the animals as a rational creature capable of participating in God’s perfect reason, and so knowing and virtuously carrying out the obligations of his law.

As Pennsylvania judge Jacob Rush explained in 1796, “The natural or moral law [is] that law which is founded upon the eternal reason and fitness of things, and enjoins those duties which, as dependent creatures, we owe to our Creator, and to each other” (Banner, 12). Or, as early American jurist James Kent put it, “The universality of the sense of a rule or obligation is pretty good evidence that it has its foundation in natural law.” Obligations are at the very center of the natural law account.

And so, natural law summons, enjoins and defines natural duties: the good human beings ought to do and the harm to be avoided. These natural duties define the contours of natural rights, both of which are then specified variously as legal and civil duties and rights. Contra the early moderns, rights don’t come first; properly understood, they are intrinsically knit together with duties. Indeed, the pre-moderns had only one word for both: ius (the root of ‘justice’ or what is owed).

Understood in this way, both rights and duties are, in the words of John Finnis, twin ways of naming what is objectively right or just vis-à-vis other persons, and as such they are always correlative. Natural duties, he helpfully explains, are the normative foundation of the virtue of justice (providing the oughtness – one should love one’s neighbor as oneself); rights are the ontological foundation (one is due just treatment because of the radically equal rational creatures he or she is). Rights and duties, so viewed, never exist independently of one another.

You can see this correlativity between rights and duties in two ways:

1)    one properly has a right to carry out his duty; e.g., I have a natural duty to worship my Creator so I have a natural right to worship, or as John Henry Newman put it, ‘Conscience has rights because it has duties’; or, another example I have the natural duty to preserve and provide for my family so I have the natural right to procure the necessities of life via a just wage; or, I have a natural duty to pursue the truth so I have a natural right to learn.

2)    one has a right as a correlative of another’s duty (as a claim against one who owes natural or legal duty to the rights-bearer); e.g., as parents have natural duties to nurture and educate their children, children have a claim to that nurture and education from their parents.

As determinations of the natural law then, legal and civil rights ought not be understood as liberties for autonomy or abstract protections from others, even as personal liberty of conscience and action as well as protection from evildoers are important aspects. Positive rights rather should be regarded as correlatives of concrete duties owed to and by concrete others, in specific situations, and as generally oriented by the civil authority to the common good.

In this way, positive law (and the rights and duties it enunciates) may properly act in its educative or formative capacity by directing citizens to better understand the particular way they -- by virtuously carrying out their particular responsibilities in their particular sphere of action -- may carry out the common good.

As Finnis writes, “[O]ne acts most appropriately for the common good, not by trying to estimate the needs of the common good ‘at large’, but by…fulfilling one’s responsibilities to ascertained individuals (i.e., to those who have particular rights correlative to one’s duties.”

Reorienting our thinking and speaking from rights to responsibilities is a very helpful way to shift out of the autonomy orientation. Inquiries into “rights” properly demand that we first ask about natural and legal obligations – what is in justice is owed – by or to particular human beings in particular circumstances. Regarding abortion, then, the proper starting point is not inquiries into competing rights but instead what is due the unborn child and his or her mother and father, since these dependencies and responsibilities are not isolated from one another but dramatically interwoven.

As we move from this general account of rights to specify a natural law account of women’s rights, I should note that a natural law account includes two moves: stable (or universal) principles of human flourishing coupled with dynamic (or situational) determinations. The first demands that all persons, including political leaders, are subject to a higher law that both judges and legitimates their actions. The second demands on the ground prudential assessments of concrete circumstances that change as history unfolds, with the shifts and transitions in technology and political economy, philosophical or theological understandings, and other causes of cultural and social change.

With that foundation set, let’s move to the two rival accounts of women’s rights which will also hopefully put some flesh on what I’ve just discussed.

The autonomy account of women’s rights is the one with which we are now very familiar. But I want to argue – as I do in my recent book -- that there is another, more cogent and philosophically coherent account of women’s rights, one discernable in the thought of 18^th century philosopher Mary Wollstonecraft and her early American heirs. It’s a lost vision of women’s rights grounded in natural law principles that -- as my subtitle reveals -- I think we ought to work to reclaim.

The autonomy account of women’s rights hardly needs an introduction; individual autonomy, as first grounded in due process liberty, and then attempts at equal protection, is the operative principle at work in constitutional arguments for abortion rights (which have themselves become the sine qua non of “women’s rights” in our day). The dissenting justices in Dobbs make this particularly apparent on the very first page of their opinion: “respecting a woman as an autonomous being, and granting her full equality, mean[s] giving her substantial choice over this most personal and most consequential of all life decisions.”

As I’ve argued variously in the American Journal of Jurisprudence, in a forthcoming article for the Texas Review of Law and Politics, as well as in the New York Times, the autonomy account of abortion rights draws from a quintessentially Lockean property rights framework, one that both the Kansas Supreme Court in 2019 and the Dobbs dissent made perfectly apparent in their pro-Roe opinions. Therein, a stand-off exists between the autonomous woman who, we are told in the Dobbs dissent, “owns her own body,” up and against the nascent and dependent unborn human being (who necessarily impinges on the physical autonomy of the pregnant woman).

In this property rights account, the woman has a kind of absolute right to exclude another from her own body-as-property, employing the use of force, as necessary. Pro-lifers may well (and do) respond that the unborn human being has rights too. But when rights have long been misunderstood as a kind of autonomous self-ownership in the legal and cultural imagination, it’s very difficult, even for ordinary people, to grant ‘rights’ to the maximally dependent unborn child. (After all, the tiny-still-developing human being is not, until viability at least, ‘independent’ of her mother, and so would not seem, in the Lockean rights paradigm, to “own herself.”)

In this autonomy-oriented framing, which we’ve seen in most of the state battles over abortion in the last several months, the woman’s bodily or decisional autonomy thus bests the very life of the vulnerable human being. But abortion rights so conceived are only cognizable “rights” when viewed from within this now regnant paradigm of rights as liberties for autonomy and protections from others.

Abortion rights make no sense at all when rights are viewed classically as the correlatives of duties as defined by law. Indeed, baked into these autonomy-oriented property rights claims is an a priori moral and legal determination that the pregnant woman lacks responsibility to the human being growing inside her; or, better, there’s no inquiry into responsibility at all. It’s clashing autonomy rights all the way down. Duties would seem to have nothing to do with it.

And note that there is a deep male normativity in this autonomous body-as-property right account, and not only because the state of nature theorists from whence it came conceived of rights as limited to unencumbered and duly autonomous male citizens. After all, when a woman is pregnant, she is not physically autonomous in the way the man who sired the child is. This is the great, defining, asymmetry between men and women: women reproduce inside themselves, men outside (as Aristotle observed long ago). A man can choose then with full physical autonomy from the child he has sired whether affirmatively to enter into paternal care. Or he can just (autonomously) walk away. But a pregnant woman’s body has already begun sustaining the life of the new human being before she is even aware. So to approach the kind of autonomy of a child-abandoning man, a pregnant woman must engage in a life-destroying act. Without the autonomy to do so – willingly to enter into her maternal duty -- we are told, she is neither equal nor free.

But the earliest American women’s rights advocates did not conceive of their rights this way. Like today’s feminists, they argued for self-governance and personal agency, and so pushed strongly for what they called voluntary motherhood, or the right to engage voluntarily in that act that might make one a mother; but unlike today’s feminists, they recognized women to be mothers – with all the responsibilities of motherhood, not just when their children were born, but from the time they began developing in their mothers’ wombs. As the most radical among them, Victoria Woodhull wrote in 1870 (notably just two years after the ratification of the 14th Amendment), once pregnant, women were “directly charged with the care of embryonic life” and the “rights of children begin while they remain the fetus.” And so, as she wrote elsewhere, “it is just as much a murder to destroy life in its embryonic condition, as it is to destroy it after the fully developed form is attained, for it is the self-same life that is taken.”

And here too is popular author and OBGYN Alice Stockham articulating not only the correlativity of rights and duties in the context of abortion (as we’ve just heard from Woodhull), but also underlying themes of interdependence and participatory reason by which we know what, in justice, is due: “By what false reasoning does she convince herself that another life, still more dependent upon her for its existence, with equal rights and possibilities has no claim upon her for protection?”

An excellent new book, Pity for Evil, offers the most granular detail of any book to date of our country’s earliest female doctors and their views of abortion. These women knew the science of embryology, and they wanted to ensure that ordinary women understood reproductive and biological realities too. Dr. Stockham, Dr. Anna Dunsmore, and other female doctors and women’s rights advocates, offered public talks to educate women about these matters. Women’s rights newspaper like The Revolution reported on these talks. Dr. Dunsmore explained that “few women, even among the educated and intelligent, realize that the embryo is imbued with the life element prior to the moment when its physical movements become conscious to her.” She said that “the matter was one least understood but one necessary to comprehend in order that the duties and responsibilities of maternity and child culture should be realized.”

It is particularly ironic that many pro-choice feminist legal scholars insist that our law today retain something like the common law’s treatment of “quickening” as a significant demarcation of the legal status of the unborn child. But such an approach rested upon a scientifically rudimentary understanding of fetal development, one that had to rely upon women’s subjective feeling to detect and track the progression of a pregnancy. Thus, our country’s earliest female doctors worked to correct this outdated medical understanding, even as the 19th century women’s rights advocates worked to correct the common law’s outdated conception of women in coverture.

This is all to say that these 19^th century women courageously advocated for their rights—to education and entry into the professions, within marriage, and in civil and political life—so that they, alongside men, could fulfill their shared responsibilities to their families and the community at large. Rights were not understood to free one from obligations, especially parental duties of care, but as correlatives of—and necessary for carrying out—those duties. Here’s Dr. Stockham’s book Toxology again, well articulating the need for men and women to share virtuously in these asymmetrical duties:

“When girls are given proper instruction upon the relation of the sexes and understand how to guard and govern themselves; when young men are taught that virtue has as high a meaning for one sex as another, that the protective chivalry of which they boast does not imply that they shall force the woman…to the defensive; and that the paternal interest in, and responsibilities for a child are equal to the maternal, then the temptation to produce abortion….will not exist.”

We also see the natural law account of rights as correlative with duties in the Declaration of Sentiments and Resolutions at Seneca Fall in 1848. First, Blackstone is cited for the proposition that human laws do not bind if they run contrary to the natural law: “Blackstone in his Commentaries remarks that this law of nature, being coeval with mankind and dictated by God himself, is, of course, superior in obligation to any other. It is binding over all the globe, in all countries and at all times; no human laws are of any validity if contrary to this, and such of them as are valid derive all their force, and all their validity, and all their authority, mediately and immediately, from this original…”

Then the equality of civil and political rights are grounded in the very nature of men and women as rational creatures with common capacities and responsibilities: “Resolved, that the equality of human rights results necessarily from the fact of the identity of the race in capacities and responsibilities.” At another women’s rights convention in Albany a few years later, we see the same appeal for women as rational creatures to enjoy civil, political and economic rights in order to fulfill their duties. “Women are human beings whose rights correspond with their duties; that they are endowed with conscience, reason, affection and energy, for the use of which they are individually responsible.” As leading advocate Lucy Stone wrote in 1892, “We are all getting to be women’s rights advocates or rather investigators of women’s duties.”

This natural law account of women’s rights can be discerned even earlier (and more comprehensively) in the work of English philosopher Mary Wollstonecraft. Though she has been long (and lazily) regarded as a kind of Enlightenment liberal who simply extended to women the French Revolution’s appeal for “the rights of men,” scholars in recent decades have revealed her to be deeply informed by the pre-modern and even Christian philosophical traditions. I wholeheartedly agree. As such, her work serves as a crucial corrective to the early modern account on which, I’ve argued, abortion rights claims are grounded. So now a few words about Wollstonecraft before I conclude with some thoughts about anti-discrimination law and abortion today.

The philosophical case Wollstonecraft made for women’s rights in 1792 was particularly robust precisely because it was based not upon liberal conceptions of pre-political, autonomous man (and I do mean man), as I’ve argued today’s rights theory tends to be. Rather, Wollstonecraft grounded her appeal in the common human nature women and men share, a nature she understood to be ordered to wisdom and virtue, human excellences that took their bearing, in her thought, from the singular wisdom and goodness of God.

Human beings are endowed with the ennobling capacity to reason, “to rise in excellence by the exercise of powers implanted for that purpose.” The capacity to employ reason to govern our appetites and direct us to live according to what is most excellent in us is what makes us distinct from the animals: “In what respect are we superior to the brute creation, if intellect is not allowed to be the guide of passion? Brutes hope and fear, love and hate; but, without a capacity to improve, a power of turning these passions to good or evil, they neither acquire virtue nor wisdom.—Why? Because the Creator has not given them reason.”

She thus shared the ancient view of human excellence as imitative of God, but sought, with Christians, to universalize that human quest beyond the landed classes, by recognizing the “native dignity” of all persons, as rational creatures made in God’s image. For Wollstonecraft, we are radically equal in our dependence upon and responsibility to God:  “Who can make us reverence ourselves,” she asks, “but a reverence for that Being, of whom we are a faint image?”

Thus, the ultimate purpose of every human life is to use one’s own reason to submit to the “unerring reason” of God, to conform oneself to the nature of things as God has benevolently designed them, and thus to unfold one’s human faculties in order to better oneself and to be of service to others. Goodness has but one eternal standard—God—thus all of his creatures, regardless of sex or social status, are responsible to that single standard. “The only solid foundation for morality appears to be the character of the supreme Being… For to love God as the fountain of wisdom, goodness, and power, appears to be the only worship useful to a being who wishes to acquire either virtue or knowledge.”

Now were God’s goodness not sought as the “eternal rule of right,” that by which we should judge all other claims of right, expediency and power would be all that remains to guide human actions. Man’s arbitrary claims of power, heeding not the higher authority of God, were the source of every oppression, in Wollstonecraft’s view. And it was here especially that she made an important advance for women and other vulnerable groups, articulating that ancient truth that we would hear again at Seneca Falls and from Reverend King’s jail cell as well: were there no higher standard of truth or virtue – no “eternal rule of right” -- how would one judge a law or action to be unjust? Without eternal right to govern human norms, persons would base their actions invariably on what is most useful, pleasing, or convenient to them -- and the weak would fall prey to the strong. “For man and woman, truth, if I understand the meaning of the word, must be the same; yet. . . “virtue becomes a relative idea, having no other foundation than utility, and of that utility men pretend arbitrarily to judge, shaping it to their own convenience.”

Because of human interdependence, the common good of persons, families and societies could only be achieved were the virtuous fulfilment of each person’s responsibilities to others of utmost priority: “A truly benevolent legislator always endeavors to make it the interest of each individual to be virtuous; and thus private virtue becoming the cement of public happiness, an orderly whole is consolidated by the tendency of all the parts towards a common center.” Wollstonecraft well understood with natural lawyers that no person is self-sufficient; we are all parts of greater wholes. After all, persons need for their flourishing the give and take within families, where each is responsible for the others, just as families need for their proper flourishing the goods common to the broader society.

From the person’s given nature as a rational, moral, and social being sprang forth certain discernable duties, thought Wollstonecraft. What were these duties that characterized human beings? First, duties to self (to develop one’s rational faculties and to master one’s appetites), to family (to care for one’s dependent children, spouse, and elderly parents), to fellow creatures (to be useful in one’s work and to respect the human dignity of all others, regardless of social status), and to God (to pursue truth and goodness and to trust in his providential designs).

The duty of the rational creature to seek the truth is the principle that underlay Wollstonecraft’s tolerance of religious pluralism and her sympathy with the dissenting sects in Britain at her time. Still, she did not view religion as at all out of place in the encouragement of moral duties: “The wisest laws would not be sufficient to restrain men within the bounds of morality without those powerful motives, which religion affords to interest the affections, and enlighten the understanding.”

And because Wollstonecraft viewed the affectionate inculcation of virtue in children to be among the most essential of all social duties, she regarded motherhood and fatherhood to be the very highest of all callings.

Civil and political rights were derived, then, not from theoretical ruminations about a mythical state of nature but from actual moral duties to others. For Wollstonecraft, we are not first and foremost autonomous beings with rights, but rather men and women in concrete and particular relation to one another, and with concrete and particular duties to one another.  A good and just government enables and encourages the fulfillment of each person’s concrete duties, in part, through the protection of her rights. A person must be free to pursue the right course of action.  “I mean, therefore, to infer that the society is not properly organized which does not compel men and women to discharge their respective duties, by making it the only way to acquire that countenance from their fellow-creatures, which every human being wishes some way to attain.”

The political freedom she sought through republican government – and yes, “natural, God-given rights” -- was then at the service of the moral development of each person, which consisted, in large measure, of virtuously fulfilling the ordinary duties of life. As she said, “a right always includes a duty,” and the purpose of both was the virtuous development and thus happiness of persons and societies. As she wrote most famously, “Society can only be happy and free in proportion as it is virtuous.”

By now, I hope I’ve shown that Wollstonecraft – and the women of Seneca Falls who came after her -- grounded their rights claims on a natural law foundation rather than on spurious claims to autonomy. But I have one more argument to make: that despite the misguided appropriations of anti-discrimination law in our day, properly understood, it is a just determination of the natural law.

The first obvious point to note, that I detail in a recent article in First Things (some of which is reproduced below), is the way in which anti-discrimination law in the 1970s served to correct erroneous accounts of women as less rational than men, or as specially bound to the private sphere because of women’s distinctive capacity for childbearing. There was a time when natural lawyers followed Aristotle concerning female rationality and/or also argued that the natural law properly defined wholly distinctive responsibilities for men and women: public men and private woman.

But it’s no surprise that the first sustained calls for women’s rights (as, we’ve seen, specifications of the natural law) occurred with the rise of liberalism and industrial capitalism. The radical interdependence of subsistence living in the agrarian household economy required deep collaboration and reciprocity between men and women. After all, the productive, deeply interdependent, and cooperative household was, for most of human history, the locus—indeed the very origin of economics—and so central to how men and women ordered their lives and carried out their duties of care to one another and to their children. 

But industrialization’s sharp fissure between home and work brought about a transformation in the nature of women’s work and of maternal and paternal duties as well. As remunerative work left the home, and with it, men too, wage-earning men became newly dependent upon industrial capitalists, making caregiving women newly dependent upon the wages of their husbands. And all this in turn made married women far more vulnerable to their husbands’ potential exploits in the new cities’ bars and brothels, and to male abandonment and bad behavior generally. Poorer women, or those whose children’s fathers had abandoned them, were themselves foisted into the harsh industrial workplace, often leaving children to fend for themselves (if they themselves were not working).

Women’s legal subordination in marriage -- virtually unchallenged during a time of subsistence living and economic inter­dependence-- exacerbated the difficulties facing women. So though the early movement for women’s rights in the late eighteenth and nineteenth centuries was coincident with—and so is usually regarded as an aspect of—the rise of liberalism, it was also a reaction against liberalism, which cleaved home from work, economics from politics, public from private, man from woman, and too often, parents from their children.

As I document in some detail in my book, the early women’s movement in the United States first sought better recognition of the still immensely productive work of the household through legal claims for joint property ownership (claims that would not be secured for a full century). As poorer women were forced into the industrial workplace, the movement fought for just workplace laws and protections, and ­eventually for the franchise (referred to by the most successful suffragist organization, the Woman’s Christian Temperance Union, as the “home protection ­ballot”).

Decades later, anti-­discrimination law would also account for both women’s rational capacity as well as their distinctive duties of care. Women could not be excluded from employment opportunities on account of their sex, but employers could accommodate women’s greater responsibility in childbearing. This careful balancing offered important relief to poor and working-class mothers like Ida Phillips, the successful litigant of the first Title VII case in 1971, whose income, due to her husband’s alcoholism and neglect, was the only sure means of provision she and her seven children enjoyed. Like those earliest women’s rights advocates, Phillips justly demanded particular rights to carry out her particular duties.

So too, when a woman is pregnant, our law justly protects her from workplace discrimination as she seeks to carry out her duties to nurture, protect, and provide for her child. Indeed, in our post-industrial economy in which women are as educated as men, and younger fathers are increasingly invested in engaging actively in the care, nurture, and education of their children (as Wollstonecraft and others hoped they would be), determining who-does-what-when with her or his peculiar gifts requires a practical wisdom that mothers and fathers must employ for the good of the family.

Legally constraining that determination from without encourages employers to punish fathers who, for instance, request leave or other accommodations to provide their families with care (rather than wages alone). Illicit “sex stereotyping” also presumes that mothers are less competent or committed to their professional work than are men or childless women (despite the fact that mothers often need income from their work in order to care for their children). Sex discrimination law therefore rightly distinguishes between policies that properly advance and protect the goods of the family in caregiving and of women in childbearing, from those laws that arbitrarily discriminate against, denigrate, “or artificially constrain” men or women on account of their sex (United States v. Virginia, 1996).

But importantly, anti-discrimination law does not prohibit discriminating between the sexes. As such, abortion restrictions do not discriminate against women. Instead, properly understood and articulated, a prohibition on elective abortion implicitly maintains that an expectant mother—like an expectant father—owes duties of care to her unborn child such that she cannot legally end the child’s life. That prohibition denigrates women only if one holds a priori that woman’s distinctive reproductive function is itself denigrating of women.

Current sex discrimination claims against abortion laws suggest that restricting a woman’s right to an elective abortion is no different from restricting a man’s right to a medical procedure that is unique to men. But we can readily and rationally distinguish between the cancer removed from a man in surgery and the human child removed from his or her mother in elective abortion. The first justly restores the man’s health; the second intentionally (and unjustly) ends the dependent child’s life. To be sure, the analogy would be more apt and the analysis different were the intervention needed to treat medical complications that in the doctor’s reasonable medical judgment pose a grave risk to the mother. But even then, there are ways a doctor can ethically end a pregnancy without intending to end the child’s life.[1]

Law (and culture) may have a more difficult time enforcing paternal duties to nurture, protect, and provide for children, but we do not allow fathers to end the lives of their unborn children when their paternal duties become too onerous, or are unchosen. Indeed, we should seek to enforce those duties to the fullest extent possible.  That is what the natural law requires today. 

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[1] See Protecting the Unborn: A Scholars’ Statement of Pro-Life Principle and Political Prudence, Ethics & Pub. Pol’y Ctr.