Vol. 5 No. 1 (January, 1995) pp. 5-11

CONTEMPORARY CASES IN WOMEN'S RIGHTS by Leslie Friedman Goldstein. Madison: University of Wisconsin Press, 1994.

WOMEN'S RIGHTS AND THE LAW by Laura Otten. Westport, CT: Praeger, 1993.

Reviewed by Alice Hearst, Smith College

As gender studies becomes an established part of the graduate and undergraduate curriculum, it is exciting to be witness to an increasing variety of readers and texts on the subject of women and the law. Two new additions to the fold are CONTEMPORARY CASES IN WOMEN'S RIGHTS by Leslie Friedman Goldstein and WOMEN'S RIGHTS AND THE LAW by Laura Otten.

Exactly as it claims, the Goldstein book is a comprehensive compilation of contemporary cases in women's rights. Professor Goldstein was one of the first scholars to design a text looking at women and the Constitution: THE CONSTITUTIONAL RIGHTS OF WOMEN, published first in 1979, and issued in a revised and updated edition in 1988, has long been an admired standard in the field. The present book could act as either a supplement to that text, or could stand alone when questions about women's legal status form a smaller component of a course. Most of the cases contained in this collection are United States Supreme Court Cases, although Professor Goldstein has included a select number of state court cases raising interesting issues that affect an understanding of women's position under the law.

CONTEMPORARY CASES IN WOMEN'S RIGHTS begins by reviewing the development of a right to privacy in matters relating to sexual intimacy. With a short discussion of the Court's authority to articulate unenumerated rights under the Constitution, Professor Goldstein introduces the reader to those larger questions about the Court's power embedded in all of its decisions on substantive due process. Adverting briefly to the genesis of rights of marital privacy and procreative freedom in cases such as SKINNER V. OKLAHOMA (an important but oft-neglected case), Professor Goldstein's narrative summary travels smoothly from GRISWOLD V. CONNECTICUT through the abortion cases of the late 1980's. It is a clear and focused analysis that provides a road map for students who are otherwise unfamiliar with those doctrinal developments.

From the first chapter putting privacy rights into historical perspective, Professor Goldstein moves to contemporary cases in the areas of abortion rights and parental authority in two subsequent chapters. Chapter Two provides readers with the texts of WEBSTER V. REPRODUCTIVE HEALTH SERVICES, RUST V. SULLIVAN, and PLANNED PARENTHOOD V. CASEY, together with clear introductory notes placing the cases in context. The cases are followed by a series of thoughtful questions that should prompt

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readers to reflect on the nature and consequences of the decisions and the future of abortion rights in general.

Chapter Three, entitled "Parenthood and Privacy," contains some of the most interesting cases in the book: IN RE A.C., considering a trial court's ruling ordering a terminally ill woman to undergo a Caesarean section in an attempt to save her twenty-six week old fetus; MICHAEL H. V. GERALD D., upholding California's (since amended) conclusive presumption of paternity against a charge that it violated a biological father's substantive due process right to establish and maintain a relationship with his daughter; IN THE MATTER OF BABY M., involving the rights of surrogate mothers; and, finally, MISSISSIPPI BAND OF CHOCTAW INDIANS V. HOLYFIELD, enforcing tribal authority under the Indian Child Welfare Act to exercise jurisdiction over adoption proceedings when the children's Indian parents, domiciled on the Choctaw Reservation, attempted to place the children for adoption in non-Indian homes.

Each of these cases raises fascinating questions about the ways in which the Court constructs the rules governing family relations, but it may be difficult for students, particularly undergraduates, to make the direct tie to issues of women's rights, particularly with the MICHAEL H. and HOLYFIELD cases. While the cases contain the common link of referring to parental rights, the contexts -- and the legal background against which they were argued -- is sufficiently disparate to create confusion. In particular, it might have been appropriate if Professor Goldstein had included some explanatory note about the ways in which questions of parenthood and reproduction condition women's lives. That discussion is not entirely absent: one of the questions posed after MICHAEL H. asks students to consider whether recognizing the parental rights of unmarried mothers while erecting barriers in some cases involving unmarried fathers (the circumstances of MICHAEL H. are convoluted) violates constitutional guarantees of equal protection. Nonetheless, a more extended discussion of the tension between issues of women's individual autonomy and family autonomy seems appropriate; the relationship between the two remains here largely implicit. Moreover, without some clear explanation of the ways in which rights of privacy and rights of equality intersect to affect both women's status under the law and legal understandings of the nature of family and parenting rights, some of the significance of cases like MICHAEL H. might be overlooked.

The same concerns arise with respect to other cases in this section. While MISSISSIPPI BAND OF CHOCTAW INDIANS V. HOLYFIELD, for example, does indeed raise compelling questions about the scope of parental authority, students reading that case may have difficulty evaluating its outcome unless they are made keenly aware of the tragic social history of adoption of Indian children by non-Indians. Both the Indian Civil Rights Act and the Indian Child Welfare Act have complicated histories which are intimately tied to questions about the special relationship between Indian tribes and the federal government and the nature of tribal sovereignty.

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Chapter Four departs from questions of privacy to move into problems of gender discrimination. Professor Goldstein provides an excellent short introduction to the materials, with a clear and concise explanation of the applicable legal standards and the impact of recent statutory changes in discrimination law.

Nonetheless, the cases reprinted here -- PRICE WATERHOUSE V. HOPKINS, UAW V. JOHNSON CONTROLS, and ELLISON V. BRADY provide a provocative sampling of cases dealing with gender stereotypes, and the questions following the cases are thought provoking and carefully drafted.

As Professor Goldstein notes in the introduction to the text, some of the issues contained in these cases raise questions germane to other sections of the book, and students may need to be reminded of that overlap. They may wonder, for example, why JOHNSON CONTROLS was not discussed in connection with reproductive rights. On that point, as noted above, a more extended discussion of the relationship between privacy concerns and questions of equality might have made this an easier transition for students new to the study of women and law. In addition, as I read this section of the text, I debated whether it might have benefitted from a more detailed discussion of the equality/difference debate, an issue that is germane to the questions raised in, e.g., JOHNSON CONTROLS. That debate continues to be an important one in understanding the contours of judicial approaches to women's rights under the Equal Protection clause, and a paragraph or two laying out those concerns, would add to students' understanding of the range of problems raised in these cases in general.

Finally, the book treats questions of sexual violence and pornography in the contexts of rape, domestic abuse and pornography. MICHAEL M. V. SONOMA COUNTY, challenging California's statutory rape law, STATE V. RUSK, raising questions about the legal classification of nonviolent coerced intercourse, STATE V. STEWART, addressing the invocation of self-defense as a justification for the murder of an abusive husband, and AMERICAN BOOKSELLERS V. HUDNUT, evaluating an ordinance regulating pornography as sexually discriminatory speech, comprise the cases in this section. While each case is worthy of inclusion, students again might have some difficulty tying the cases together, and perhaps more explicit attention to their commonality -- and the big picture questions generated thereby -- might have been useful.

Overall, CONTEMPORARY CASES IN WOMEN'S RIGHTS is a highly readable and thoughtful collection of cases. My points of critique are minor ones: Students utilizing this text will be stimulated to think about difficult and uncomfortable questions, and that is exactly what a good text ought to do.

Laura Otten's book, WOMEN'S RIGHTS AND THE LAW, is more comprehensive in scope, and quite different in approach. Tackling an enormously diverse range of topics covering a lengthy period of time, Professor Otten does an admirable job of presenting a history of women's rights to gender equality, primarily challenges brought under the Fourteenth Amendment's Equal

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Protection clause. The narrative approach synthesizing a large body of case law will appeal to students new to reading legal materials.

This text sets out "to uncover the law's image and treatment of women over time" as revealed by Supreme Court cases. (p.2) The scope of the project alone justifies Professor Otten's decision to limit the focus to Supreme Court cases perhaps better than her assertion that "only one law appears appropriate [to evaluate women's position and] [t]hat law is the law of the courts." (Id.) While there is some truth to that proposition, it goes too far. Certainly, it is interesting to follow the Court's interpretation of both the Constitution and the recently enacted statutes addressing problems of gender discrimination, but it is surely rather a broad claim -- and unsupported here -- to assert that "[a] law that has never been challenged leaves women's position sketched in only vaguely....To understand a law's "real" function, we must look at a law that has been challenged in a court and...has been interpreted...[because that] interpretation...clearly tells society just how, or whether, the law should be put into practice and function." (Id.) On the other hand, Professor Otten's discussion of the sociological functions of law in Chapter 2 is clear and thought-provoking, and provides a grounding for the decision to evaluate doctrinal developments throughout the remainder of the text.

Further in Chapter 2, Professor Otten quickly reviews some of the basics of judicial review, the relation between state and federal courts, and the processes of Supreme Court decisionmaking. As with any text of this sort--and the same thing is true with the Goldstein book -- the discussion is of necessity brief, and students may need to be reminded of the information contained in this section as they proceed through the remaining materials.

The substantive discussion of women's equality rights begins with Chapter Three. Professor Otten utilizes readings from Ashley Montagu and Leslie Pogrebin to get the reader started thinking about the nature and consequences of sex discrimination and its consequences. In this chapter, Professor Otten also does a nice job of outlining the variety of sexual stereotypes to watch for in legal pronouncements.

Chapter Four provides a brief look into the status of women at the time the Constitution was drafted, and includes Abigail Adams's well known appeal to her husband to "remember the ladies", as well her husband's dismissive replies to that appeal. The other readings, the Marriage Protest of Lucy Stone and Henry Blackwell, the Seneca Falls Declaration of Sentiments and Elizabeth Cady Stanton's comments in A Married Woman's Property Act, among others, are absorbing and reveal the genesis of a number of the stereotypes that the remainder of the text critiques.

With Chapter Five, Professor Otten shifts into tracing the development of case law defining women's rights. The text moves from a discussion of Myra Bradwell's efforts to be admitted to the Illinois bar in BRADWELL V. ILLINOIS through cases like MINER V. HAPPERSETT, denying women the right to vote, MULLER V. OREGON, sustaining protective legislation

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and up to GOESSART V. CLEARY, sustaining the Michigan law limiting women's power to work in a bar. As Professor Otten's explanatory text notes, that series of cases repeatedly refused to recognize women's rights to compete on equal footing -- either in the workplace, or as citizens generally--with men.

Chapter Six opens with the Court's decision in HOYT V. FLORIDA, which, according to Professor Otten, was "the last of a series of ...decisions endorsing the categorical denial to women of opportunities available to men." (p. 81) That case is juxtaposed against REED V. REED, to illustrate the turn of mind as the Court finally began to recognize gender as a problematic statutory classification, laying the groundwork for the law's contemporary treatment of women's equality. While tracing the legal developments of the 1970's, Professor Otten briefly notes the Court's holding in ROE V. WADE, but here makes a tactical decision. While noting that ROE had "widespread consequences for women...[and] "altered [women's status]", (p. 95) she nonetheless eschews any further discussion of the emergence and development of women's rights to privacy on the basis that the case did little to significantly alter stereotypical perceptions of women or to move women toward gender equality, a curious choice that is discussed below. Professor Otten then continues to chart the development of women's rights to equality, with a lengthy discussion of WEINBERGER V. WIESENFELD, in which the Court sustained an equal protection challenge to a provision of the Social Security Act that allowed widows with dependent children to collect social security benefits while denying that right to widowers. As Professor Otten notes, the case is significant for the majority's willingness to recognize that women can be the primary earner in a family.

Chapters 9 through 11 essentially chart the equal protection cases considered by the Court from 1976 to the present: CRAIG V. BOREN; the gamut of gamut of employment discrimination cases from DOTHARD V. RAWLINSON through MERITOR SAVINGS ASSOCIATION V. VINSON to UAW V. JOHNSON CONTROLS; and a variety of other cases including MICHAEL M. V. SUPERIOR COURT OF SONOMA COUNTY, and PERSONNEL ADMINISTRATOR OF MASSACHUSETTS V. FEENEY. The cases are developed chronologically, and are well organized to reflect the tensions that continue to plague the Court's understanding of gender equality, and to show the Court's inability to completely disregard the gender stereotyping that results in halting progress for women. Students utilizing this text will emerge with a fairly comprehensive understanding of the development women's equality rights and the contemporary status and the major concerns affecting the development of that doctrine in the future.

At this point, however, I want to return to Professor Otten's decision to forego any lengthy discussion of women's privacy rights. Admittedly, the object of this monograph is to look at the articulation and development of gender stereotypes in cases raising primarily equal protection challenges, so that the assertion that ROE and other reproductive rights cases do not speak directly to those

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stereotypes is at one level accurate. Professor Otten notes:

The fact is that the status of women was of no real concern to the Court in deciding ROE, and that is perhaps where the true "women's issue" in ROE lies. There were no pronouncements about women's appropriate sphere, or her ability to fend for herself. There were no endorsements of stereotypical notions of women's role and status...[nor any] ground breaking announcements as to whether the Court was changing its perception of woman's role and status in society. (p. 95)

Nonetheless, the recognition of reproductive rights -- and the ability of women to control their procreative lives -- significantly affects the ways in which women's claims for equality take shape: privacy rights have been instrumental in breaking down stereotypes of women based upon assumptions about their reproductive capacities, which is key to discussing matters of gender equality. Professor Otten is aware of these issues, noting, for example, after discussing GEDULDIG V. AIELLO, that "women are entitled to equality with males in the public sphere ONLY TO THE EXTENT that they arrange their lives and their priorities in the way that males have traditionally arranged theirs -- maintaining a full-time career pattern without time off for familial demands." (p. 118) As noted in the discussion of Professor Goldstein's book, above, the intersection of privacy and equality doctrines is complicated: it affects the manner in which women's claims to equality are evaluated, not least because the existence of reproductive rights transforms the childbirth and childrearing into matters of choice, which can impair women's claims to equality over the long term.

On a different note, several other concerns surfaced as I read the text. In the initial chapters, Professor Otten's presentation of the materials seems quite balanced, heeding the extensive advice laid out for readers at the conclusion of Chapter 1 to engage value-free reading of the materials in the book. Yet as the text progresses, the tone becomes more and more imperative. Questions addressed to students leave little room for thoughtful disagreement:

Which is the true profemale stance [in MICHAEL M.]: the paternalistic position of the Court plurality or the egalitarian position of Justice Stevens? Who is really antifemale: those who say, "There, there, we will think for you and protect you because you aren't quite ready to think for yourself," or those who say, "You are responsible for the consequences of your actions?" (p. 181)

Did women win in CRAIG, or were they severely harmed? Has the ability to fall back on "intermediate scrutiny" acted

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over the years as a helpful proxy (for the justices) to avoid confronting the politically and legally tricky issue of declaring sex a suspect class? And thus, have women once again been held back and closed out? (p. 141)

By endorsing the notion [in MICHAEL M.] that because men suffer least from the consequence of statutory rape, they are being punished for the rape while women are not, is not the Court at the same time endorsing the notion that men are less responsible for their offspring, whether legitimate or not? And thus is not the Court, after having begun finally to free its decision making from stereotypical notions, returning to support yet another facet of traditional sex role stereotypes--that women nurture but men do not? (p. 178)

On one occasion in the text, there seemed to be confusion over the nature of questions revolving around facially neutral statutes. In discussing FEENEY, Professor Otten asks, "Can a law whose admitted consequence is disproportionate discrimination against one group really be said to be facially neutral? If on the face of things, the law is still recognized as carrying a discriminatory IMPACT, though not necessarily a discriminatory DESIGN, where is the neutrality?" (p. 166) This discussion seems to misunderstand the concept of facial neutrality: In fact, the answer to the question of where the neutrality lies is on its face.

Organizationally, the text would benefit from an expanded table of contents listing the cases excerpted in each chapter. In addition, while Professor Otten often had illuminating comments on the cases, it was occasionally awkward because the comments were inserted between the majority, concurring and dissenting opinions, which made it difficult to keep track of whether the author or the Court was speaking. Finally, given the text's focus on stereotypes, it might be useful to explore the ways in which stereotypes change, depending upon whether the women in issue are poor or women of color.

Both of the books reviewed here are a welcome addition to the growing literature on women and the law. The Goldstein book does not purport to be the treatise on women's rights that the Otten book claims to be, and the audiences will therefore be quite different, but both are books well worth considering.

Copyright 1995