By Doris Weatherford

Monday, March 25, 2013,

The term has served as a legal code for racism. Today, historian Doris Weatherford writes that state lawmakers have also long imposed legal restrictions on U.S. women. Now it’s the framework for the shrinkage of access to reproductive health care and medical privacy.

Little girl carrying protest sign


Credit: keithreed01 on Flickr, under Creative Commons (CC BY-NC-ND 2.0).


(WOMENSENEWS)–Throughout U.S. history, “states’ rights” was a convenient code for racism.

Conservative politicians railed that legal changes in favor of African Americans were a violation of “states’ rights.” Southerners especially contended that their state legislatures had a right to laws that discriminated against people born with the wrong skin color.

Yet rarely is the phrase states’ rights seen also as a code to legitimize the violation of women’s rights, even though every woman gains or loses the right to make decisions about her own body when she crosses state lines.

Just last week, North Dakota lawmakers banned the termination of pregnancies that are beyond six weeks–when a woman barely knows whether or not she has missed her period.

Because men cannot get pregnant, such laws do not apply to them, and the conflict between women’s rights and states’ rights continues.

The legal point should have been resolved by the 14th and 15th Amendments in the 1860s, but a century passed before the majority of Americans agreed that the federal government should overrule racially discriminatory state laws. A hundred years after the Civil War ended in 1865, nonwhites finally saw the promise of true liberty with the passage of the 1965 Civil Rights Act.

While almost everyone today sees states’ rights as an antiqued philosophy, astonishingly few see that it also is key to understanding women’s rights. Historians don’t teach it that way, and so this vast aspect of U.S. history goes unacknowledged.

From the nation’s beginning, though, statehood meant a step backwards for most women. In the colonial era of the 1600s, women freely went to court and argued their own cases. But under new state governments, many women lost their right to sue.

In most states, a married woman literally had no rights. She could not file for divorce; only her husband could do that–and he rarely had any incentive to do so, as her inherited property became his. Even her earned income legally was his.

States also gave automatic child custody to fathers, another huge disincentive for divorce. Fathers could name someone other than the mother in their wills as custodians for children, empowering an outsider with decision-making authority for a child’s education or even residence.

Nor did staying unmarried entitle a woman to full citizenship, even while she was compelled to pay full taxes.

Protesting Violations

For decades, women protested against this violation of the principle of “no taxation without representation.” Lucy Stone allowed a New Jersey sheriff to sell her personal goods rather than pay taxes to a government that did not represent her, and other women did likewise.

In Connecticut, sisters Julia and Abby Smith refused to pay taxes on their Gastonbury farm because they could not vote. The court sold their cattle to a male neighbor and newspapers treated “the Gastonbury Cows” as laughable cartoon material.

Women always assumed that they had the right to petition, however, and after feminists organized petition drives in the 1850s, Northern legislatures began to change property laws. Southern states lagged, and in 20th century Louisiana, even a woman’s clothes legally belonged to her husband; she was not free to sell them.

State law also refused to recognize a woman as a witness. A New Orleans orphanage lost the bequest that a donor intended because only women had signed the document testifying to her intentions. Had those women brought an illiterate male janitor into the room to make his mark, the will would have been upheld.

Far into the 20th century, states routinely excluded women from tax-supported colleges and universities, especially law and medical schools. A Michigan woman had to go to court for the right to tend a bar, as state law forbade female bartenders. As late as 1972, Idaho gave men automatic status as executors of family estates; in Reed v. Reed, a woman had to go to the Supreme Court to be allowed to substitute for her mentally incompetent brother. Inheritance law in many farm states gave sons more power than widows who built the farm.

Female Jurors Forbidden

Most states long excluded women from juries, meaning that a female defendant was not tried by her peers–and imposing a real discouragement on female witnesses and lawyers. In 1961, The U.S. Supreme Courtupheld state law in Hoyt v. Florida, ruling that automatic exemption of women from jury lists was constitutional. Eighteen other states had similar laws that allowed women to serve, but only if they took special steps to volunteer. At least three states at the time barred women completely.

Griswold v. Connecticut (1965) often is cited today as the bulwark of personal privacy–something that conservatives claim to value–but the case really was about women, and specifically their right to birth control. Connecticut, with its large Catholic population, banned the sale of contraceptives, but after the married Estelle Griswold had the courage to pursue the case, the U.S. Supreme Court struck down the state law.

Massachusetts lawmakers tried to get around the ruling by restricting sales to individuals who could prove they were married, but in Eisenstadt v. Baird (1972), the Supreme Court allowed contraceptive purchase without regard to marital status.

Would state legislatures today approve laws that require nonwhites to give up the right to eat in public restaurants based on state borders? Would any man surrender any right because he moved from South toNorth Dakota?

That is the framework in which these important decisions should be made. And just as in the past, states’ rights is a code for fascism and legal terrorism, and for keeping the victim in her place.

Doris Weatherford is the author of a dozen books on American women. Her most recent work, “Women in American Politics: History and Milestones,” won a prize from the American Library Association as a 2013 Outstanding Reference Source.