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'White Knight' Laws Should Be Treated With Skepticism, Brief Says

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By Casey C. Sullivan, Esq. on February 09, 2016 11:01 AM

From the past to the present, there have been hundreds of laws that seek to "protect" women by denying them full rights: laws shielding women from the corrupting influence of politics, and voting; laws guarding women from hearing "sordid evidence," by keeping them off juries; laws keeping women from dangerous work as high-paid pharmacists, but not low-paid janitors. And now, at least in Texas, those laws include protecting women from medical risks associated with abortion by virtually eliminating their access to it.

Let's call these "White Knight" laws. They're laws that seek to save women from the harms of the world, by simultaneously denied them full citizenship, liberty, and economic and political participation. According to a recent amicus brief in Whole Women's Health v. Hellerstedt, those laws warrant extra scrutiny from the Supreme Court.

"Romantic Paternalism" Today

The amicus brief, submitted by 16 historians "whose research focuses on the lives of women," is one of the many arguments presented to the Supreme Court in advance of oral arguments in Whole Women's Health v. Hellerstedt (née Whole Women's Health v. Cole). At the center of that case are Texas's restrictive requirements for abortion clinics, requirements which are imposed ostensibly with the health and well-being of women in mind.

Texas's restrictions fall right into America's "White Knight" legislative tradition, the brief proposes. That is a tradition where, for much of the country's history, "laws stood supported by cultural beliefs" in women's frailty, inferiority, and need for protection, the historians write. That, in turn, meant "that women's need for protection justifies limitations to their liberty."

In 1973's Frontier v. Richardson, the Supreme Court recognized that such laws were "rationalized by an attitude of 'romantic paternalism' which, in practical effect, put women, not on a pedestal, but in cage." Similarly, the brief argues, "Any new law that claims to protect women's health and safety should be scrutinized carefully to assess whether its ostensibly protective function actually serves to deny liberty and equal citizenship to women."

A Long History of Restrictive "Protections"

The amici provide a brief overview of such laws and their long history in the United States. They start with coverture, the common law doctrine that a woman's legal rights and obligations were subsumed to her husband's upon marriage.

The husband was meant to protect his wife, but she was simultaneously denied many basic rights. That control over women's personhood, for the purpose of protecting them, was mirrored by the husband's exclusion from rape laws, for example. (As the brief notes, marital rape wasn't a crime in all fifty states until 1993.)

Such laws weren't limited to the marital union, either. The 20th Century saw a host of labor laws which "protected" women from well-paying jobs that men wanted. It wasn't until 1949 that women were allowed to serve on juries in Massachusetts, for example. And even then, judges were allowed to dismiss women if they thought a woman would "likely be embarrassed by hearing the testimony or by discussing it in the jury room."

We'll have a chance to see if the brief is persuasive in the near future. Oral arguments are scheduled for March 2nd.

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