Amicus Curiae Brief — Whole Woman's Health v. Cole, 136 S. Ct. 499 (2015) (No. 15-274)

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No. 15-274 Tate ae e

IN THE rok on

Supreme Court of the United bens, pron nei

—_4

WHOLE WOMAN'S HEALTH, et al,

Petitioners,

KIRK COLE, et al.,

Respondents.

On Writ oF CERTIORARI TO THE UNITED STATES CouRT

OF APPEALS FOR THE FirtH CIRCUIT

BRIEF OF HISTORIANS AS AMICI CURIAE

IN SUPPORT OF PETITIONERS

KEVIN M. Fone

Counsel of Record

PILLsBuRY WINTHROP SHAW PITTMAN LLP

Four Embarcadero Center, 22nd Floor

San Francisco, CA 94111

(415) 983-1000

kevin.fong@pillsburylaw.com

CHRISTINE A. SCHEUNEMAN

PILLSBURY WINTHROP SHAW PittMAN LLP

725 South Figueroa Street, Suite 2800

Los Angeles, CA 90017

(213) 488-7100

Counsel for Amici Curiae

January 4, 2016

COUNSEL PRESS

(800) 274-3321 » (800) 369-6859

TABLE OF CONTENTS

TABLE OF CONTENTS. .. .. ...

TABLE OF CITED AUTHORITIES .

INTEREST OF AMICI CURIAE .

INTRODUCTION AND SUMMARY OF

ARGUMENT.

ARGUMENT.........

IT.

ITI.

THE DOCTRINE OF COVERTURE

PURPORTED TO PROTECT

WOMEN, WHILE SEVERELY

LIMITING THEIR ECONOMIC AND

POLITICAL RIGHTS.... ..... '

TWENTIETH-CENTURY SEX-

BASED LABOR LAWS CLAIMED

TO PROTECT WOMEN, WHILE

CONSTRAINING THEIR ACCESS

TO EQUAL EMPLOYMENT. ..

IN LIGHT OF THIS HISTORY, WHEN

A LAW CLAIMS TO PROTECT WOMEN

BY REGULATING ABORTION CLINICS,

THE COURTS SHOULD CAREFULLY

EXAMINE WHETHER THE LAW

ACTUALLY PROMOTES WOMEN’S

HEALTH, AND AT WHAT POSSIBLE

COST TO WOMEN’S LIBERTY.

.10

CONCLUSION

APPENDIX. .

Table of Contents

TABLE OF CITED AUTHORITIES

Cases

Bradwell v. State,

83 U.S. (16 Wall.) 130 (1872). .

Cleveland Bd. of Educ. v. LaFleur,

414 U.S. 632 (1974)

Commonwealth v. Beatty,

15 Pa. Super. 5 (1900). . .

Duren v. Missouri,

439 U.S. 357 (1979). .

Frontiero v. Richardson,

411 U.S. 677 (1973)

Goesaert v. Cleary,

335 U.S. 464 (1948). .

Holden v. Hardy,

169 U.S. 366 (1898)... .. .

Hoyt v. Florida,

368 U.S. 57 (1961).

Lochner v. New York,

198 U.S. 45 (1905). .

Mengelkoch v. Indus. Welfare Comm'n,

442 F.2d 1119 (9th Cir. 1971).

. oeneeeend 20

. 10

Cited Authorities

Muller v. Oregon,

208 U.S. 412 (1908). ...... :'

People v. Schweinler Press,

214 N.Y. 395 (1915). ........ » een

Planned Parenthood of Se. Pa. v. Casey,

505 U.S. 838 (1992)........ cece eee

Reed v. Reed,

404 U.S. 71 (1971).

Ritchie v. People,

155 Til. 98 (1895)

Rosenfeld v. S. Pac. Co.,

293 F. Supp. 1219 (C.D. Cal. 1968)

Taylor v. Louisiana,

419 U.S. 522 (1975).

Page

.. 11, 18, 18

.19

Turner v. Dep't of Emp’t Sec. & Bd. of Review of

Indus. Comm'n of Utah,

423 U.S. 44(1975).. . .. «..

UAW v. Johnson Controls, Inc.,

499 U.S. 187 (1991)

UAW v. Johnson Controls, Inc.,

886 F.2d 871 (7th Cir. 1989).

. 20

beece 21]

Cited Authorities

United States v. Darby Lumber Co.,

312 U.S. 100 (1941) .

Weeks v. S. Bell,

408 F.2d 228 (5th Cir. 1969)

Weinberger v. Wiesenfeld,

420 U.S. 636 (1975).

Whittlesey v. Miller,

572 S.W.2d 665 (Tex. 1978)

Statutes and Codes

1874 Massachusetts Acts 145. .

1879 Texas Revised Civil Statutes Article 2181

1893 Illinois Laws 99.

1897 Pennsylvania Laws 30

1918 Texas General Laws 105...

1925 Texas Revised Civil Statutes

Michigan Statutes Annotated (Cum. Supp. 1947)

DP. occ 4 5 ae) be ces S68

.10

on Or

Cited Authorities

Page

United States Code

Title 29, Section 201, et seg. ........... ...eeeee 15

Other Authorities

1 WILLIAM BLACKSTONE, COMMENTARIES ON

THE LAWS OF ENGLAND (1765). : eenpees 3, 4

39 Texas Jurisprudence, 3d Fam. Law § 391 (2015) .5

ALEXANDER KeyssarR, THE RicHT To Vote: THE

CONTESTED History OF DEMOCRACY IN THE

Unrrep States(2000), j = ...... “—o

ALFRED W. BLUMROSEN, MoperRN Law: THE Law

TRANSMISSION SYSTEM AND EQUAL EMPLOYMENT

ee sucnenneseseus 19

Alice Kessler-Harris, Affirming The Sexual

Division of Labor, in Days or DEsTIny:

CROSSROADS IN AMERICAN History (Alan

Brinkley & James M. McPherson eds., 2001). ll

A.LiceE KEessLER-HARRIS, OuT TO WorK: A

History oF WAGE-EARNING WOMEN IN

THE UNITED States (1982)... .... . 12, 13, 15

Alice Kessler-Harris, Protections for Women:

Trade Unions and Labor Laws, in DouBLE

Exposure: WomEN’s HEALTH HAZARDS ON THE

JOB AND AT Home (Wendy Chavkin ed., 1984) 12

vit

Cited Authorities

Alice Kessler-Harris, The Paradox of Motherhood:

Night Work Restrictions in the United States,

in ProrectiInG WoMEN: LABOR LEGISLATION IN

EUROPE, THE UNITED STATES AND AUSTRALIA, 1880-

1920 (Ulla Wikander, Alice Kessler-Harris and

Jane Lewis eds., 1995). . has

BARBARA YOUNG WELKE, LAW AND THE BORDERS

OF BELONGING IN THE LONG NINETEENTH

Century UNITED StraTEs (2010).

CYNTHIA DANIELS, AT WoMEN’s EXPENSE: STATE

POWER AND THE Po.itics oF Feta. RIGHTS

(1993) ....

EILEEN Boris, Home To WorK: MOTHERHOOD AND

THE POLITICS OF INDUSTRIAL HOMEWORK IN

THE UnrTep StaTeEs (1994)... . ..

ELIZABETH FAULKNER BAKER, PROTECTIVE LABOR

LEGISLATION: WITH SPECIAL REFERENCE TO THE

Page

..14

a |

WoMEN IN THE STATE OF New York (1925). .. .11,14

Elizabeth York Enstam, Women and the Law,

Tex. Sr. Hist. Ass’n, https://www.tshaonline.

org/handbook/online/articles/jsw02. .. . .

GRETCHEN RITTER, THE CONSTITUTION AS SOCIAL

DesiGN: GENDER AND Civic MEMBERSHIP IN

THE AMERICAN CONSTITUTIONAL ORDER (2006). .

viii

Cited Authorities

HenprIK A. Hartoc, MAN AND WIFE IN AMERICA:

A History (2000) .. . £awavcen :

JACQUELINE JONES, LABOR oF LOVE, LABOR OF

Sorrow: BLack WoMEN, WoRK, AND THE FAMILY,

FROM SLAVERY TO THE PRESENT (2d ed. 2009). .

Jill Elaine Hasday, Contest and Consent: A

Legal History wane Rape, 88 CAL. L.

PC S6yy beecetecccees © on

JupITH A. BAER, THE CHAINS OF PROTECTION: THE

JUDICIAL RESPONSE TO WOMEN’S LABOR

LEGISLATION (1978) .

Judith Scott, Keeping Women in Their Place:

Exclusionary Policies and Reproduction,

in DOUBLE EXPOSURE: WOMEN’S HEALTH

HAZARDS ON THE JOB AND AT HOME

(Wendy Chavkin ed., 1984)

Linda Gordon & Sara McLanahan, Single

Parenthood in 1900, 16 J. Fam. Hist. 97 (1991).

LinpDA Gorpon, Pitiep But Not ENTITLED:

SINGLE MOTHERS AND THE HISTORY OF

WELFARE 1890-1935 (1995) ....... oer

Linpa K. Kerser, No ConstITUTIONAL RIGHT TO

Be Lapres: WoMEN AND THE OBLIGATIONS OF

CITIZENSHIP (1998)

.21

3, 8,9

Cited Authorities

Linda K. Kerber, Sally Reed Demands Equal

Treatment, in Days oF DesTINy: CROSSROADS

IN AMERICAN History (Alan — & James

McPherson eds., 2001).

Linda K. Kerber, Why Diamonds Really Are a

Girl’s Best Friend: Another American

Narrative, DAEDALUS, Winter 2012

MICHAEL GROSSBERG, GOVERNING THE HEARTH:

LAW AND THE FAMILY IN NINETEENTH-CENTURY

AMERICA (1985) pee

Nancy F. Cott, Marriage and Women’s

Citizenship in the United States, 1830-1934,

103 Am. Hist. Rev. 1440 (1998) .

Nancy F. Cott, Pusiic Vows: A History or

MARRIAGE AND THE NATION (2000)... ..

Nancy F. Cott, THE Bonps or WoMANHOOD:

Woman’s SPHERE IN NEW ENGLAND,

I he Chia ccicee as

Nancy MacLean, FREEpom Is Not Enoucu: THE

OPENING OF THE AMERICAN WORKPLACE

(2006) . ' 17-18, 20

Nancy Wo ocn, A Ciass By HERSELF:

PROTECTIVE LAWS FOR WOMEN WoRKERS,

1890s-1990s (2015) passim

Cited Authorities

Nancy WoLocu, MULLER Vv. OREGON: A BRIEF

History WITH DocuMENTs (1996) . .. ....10,11

Reva Siegel, She the People: The Nineteenth

Amendment, Sex Equality, Federalism, and

the Family, 115 Harv. L. Rev. 947 (2002).. ....

RuTH MILKMAN, GENDER AT Work: THE DyNAmIcs

OF JOB SEGREGATION BY SEX DurINnG WorLD

War II (1987)

SALLY J. KENNEY, FoR WHOSE PROTECTION?

REPRODUCTIVE HAZARDS AND EXCLUSIONARY

POLICIES IN THE UNITED STATES AND

cats dudes beedade tiads beads

SANDRA F. VANBURKLEO, BELONGING TO THE

WorLD: WoMEN’s RIGHTS AND AMERICAN

CONSTITUTIONAL CULTURE (2001)..............

SANDRA F’. VANBURKLEO, GENDER REMADE:

CITIZENSHIP, SUFFRAGE, AND PuBLic PowER IN

THE NEw NortTHWEST, 1879-1912 (2015)

SERENA MAYERI, REASONING FROM RACE:

FEMINISM, LAW, AND THE CIVIL RIGHTS

REVOLUTION (2011). .. .... .....

.16

Cited Authorities

Sharon Harley, The Solidarity of Humanity:

Anna Julia Cooper’s Personal Encounters

and Thinking about the Intersectionality of

Race, Gender, and Oppression, WOMEN AND

Soc. MoveMEnNts, March 2015

(Thomas Dublin & Kathryn Kish Sklar eds.)

VANESSA H. May, UNPROTECTED LABOR:

HouSEHOLD WorkKERS, PoLiITICSs, AND MIDDLE-

CLASS REFORM IN New York, 1870-1940 (2011) .

Women’s Bureau, U.S. Dep’t or Lasor, History

OF LABOR LEGISLATION FOR WoMEN IN THREE

StaTEs, Buu. No. 66-1 (1927).... . .

Women’s Bureau, U.S. Dep’t or Lasor, SomME

EFFECTS OF LEGISLATION LIMITING Hours FoR

Women, BuLL. No. 15 (1921)

Page

.14

]

INTEREST OF AMICI CURIAE'

Amici are historians of the United States, whose

research focuses on the lives of women. This brief, based

on decades of study and research by amici, aims to

provide accurate historical perspective on laws claiming

to protect women. From their vantage point as historians,

amici wish to point out the constraints on women’s liberty

and equality in laws that purport to protect women, by

sketching the long history of such laws and showing that

intentions to protect had the effect of restricting women’s

choices and undermining their dignity as full citizens.

INTRODUCTION AND SUMMARY

OF ARGUMENT

The Texas law at issue in this case purports to protect

women’s health. The Fifth Circuit stated that “[t]he Texas

Legislature’s stated purpose for enacting these provisions

was to raise the standard and quality of care for women

seeking abortions and to protect the health and welfare

of women seeking abortions.” Pet. App. 25a.

The Texas law follows a long line of prior state laws

instituted ostensibly to protect the health, safety, and/

or interests of women. Such sex-based laws claiming to

protect women have ancient roots in the common law

doctrine of coverture, which subsumed a wife’s legal

1. The parties have consented to the filing of this brief. No

counsel for a party authored this brief in whole or in part, and no

such counsel or party made a monetary contribution intended to fund

the preparation or submission of this brief. No person other than

amici curiae or their counsel made a monetary contribution to its

preparation or submission.

persona under that of her husband, ostensibly for her

protection and benefit. Subsequently, state legislatures

passed sex-specific regulations said to protect women’s

health and safety, ranging from exemptions from jury

service to restrictions on women’s conditions of waged

work.

This Court has acknowledged that such past woman-

specific laws were “rationalized by an attitude of ‘romantic

paternalism’ which, in practical effect, put women, not on a

pedestal, but in a cage.” Frontiero v. Richardson, 411 U.S.

677, 684 (1973). Because these laws were typically based on

gender stereotypes and had the effect of limiting women’s

liberty and autonomy and treating women as inferior

citizens, they have been struck down as unconstitutional

sex discrimination.’

Thus, 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. This is

especially necessary when the law affects a woman’s

ability to choose to terminate a pregnancy, one of “the

most intimate and personal choices a person may make

in a lifetime, choices central to personal dignity and

autonomy,” which this Court has defined as “central to

2. For another reference to “romantic paternalism,” see Weeks

v. S. Bell, 408 F.2d 228 (5th Cir. 1969). For disparate treatment as

unconstitutional sex discrimination, see Duren v. Missouri, 439 U.S.

357 (1979); Weinberger v. Wiesenfeld, 420 U.S. 636 (1975); Taylor v.

Louisiana, 419 U.S. 522 (1975); Reed v. Reed, 404 U.S. 71 (1971). Fora

discussion of Reed, see Linda K. Kerber, Sally Reed Demands Equal

Treatment, in Days or Destiny: CROSSROADS IN AMERICAN HISTORY

440, 441-51 (Alan Brinkley & James M. McPherson eds., 2001).

the liberty protected by the Fourteenth Amendment.”

Planned Parenthood of Se. Pa. v. Casey, 505 U.S. 833,

851 (1992).

ARGUMENT

I. THE DOCTRINE OF COVERTURE PURPORTED

TO PROTECT WOMEN, WHILE SEVERELY

LIMITING THEIR ECONOMIC AND POLITICAL

RIGHTS.

Wives’ subordinate status under the Anglo-American

common law doctrine of coverture was justified as

protecting their safety and their interests. This legal

regime, which antedated the American Revolution and

influenced state laws long after it, authorized husbands to

control their wives’ bodies, labor, property, and political

status, since women were presumed to be the weaker

sex and inferior in reason and judgment. Ostensibly for

their own protection, wives had no independent legal or

economic identity; they were “covered” and represented

by their husbands.’

The classic (and authoritative) formulation was

William Blackstone’s in his COMMENTARIES ON THE LAWS

OF ENGLAND published in 1765, and widely cited thereafter

among lawyers in America: “By marriage, the husband

3. On the impact of coverture, see generally Linpa K. KERBER,

No ConstITuTIONAL RicuT To BE LApiEs: WOMEN AND THE OBLIGATIONS

or CITIZENSHIP, at ch. 1 (1998) [hereinafter No ConstiITUTIONAL RicHT];

SanprRA F. VANBURKLEO, BELONGING TO THE WorLD: WoMEN’s RIGHTS

AND AMERICAN CONSTITUTIONAL CULTURE 1-57 (2001); Linda K. Kerber,

Why Diamonds Really Are a Girl’s Best Friend: Another American

Narrative, Darpa.us, Winter 2012, at 89, 89-100.

and wife are one person in law: that is, the very being

or legal existence of the woman is suspended during the

marriage, or at least is incorporated and consolidated into

that of the husband: under whose wing, protection, and

cover, she performs every thing. . . .{H]er condition during

her marriage is c*'led her coverture.” After reviewing the

married woman’s legal infirmities, Blackstone concluded

“that even the disabilities, which the wife lies under,

are for the most part intended for her protection and

benefit.” 1 WILLIAM BLACKSTONE, COMMENTARIES *430, *433

(emphasis in original).

The husband’s control and the wife’s subordination

to his governance were justified as in her best interests

and for her protection. Yet this protection meant that

wives were barred from making choices for themselves.

Early American states drew heavily from the common law

doctrine of coverture, effectively denying full citizenship

to married women. See Nancy F. Cott, THE Bonpbs or

WoMANHOOD: WoMAN’S SPHERE IN NEW ENGLAND, 1780-

1835, at 20-22, 76-80 (1977); see also Nancy F. Cort,

Pus.ic Vows: A History OF MARRIAGE AND THE NATION

10-13, 52-55 (2000). In community property states such as

Texas, the legacy of Spanish civil law allowed wives to be

acknowledged as owners of their separate property and

half-sharers in marital property. Nonetheless, husbands

had complete and sole control of all marital property. Only

if the husband died was the wife allowed to manage the

property, and then only as long as she did not remarry.

1879 Tex. Rev. Civ. Stat. 2181, available at http://www.

sll.texas.gov/library-resources/collections/historical-

texas-statutes/. A wife in Texas (as in other states) had

no capacity to transact business for herself and thus she

could not serve as a trustee, executor, or legal guardian

for another. She could not enter into any contracts herself,

as they were absolutely void at law; neither could she sue

nor be sued without her husband joining her. Her earnings

were community property and as such under her husband's

control, well into the 20th century. See, e.g., 1925 Tex.

Rev: Civ. Stat. 4626, available at http://www.sll.texas.gov/

library-resources/collections/historical-texas-statutes/.

The protective rationale underlying statutes and

court rulings in Texas and throughout the United States

sustained the husband’s authority over his wife and thus

deprived her of most of the important choices in family

life.‘ The husband’s legal authority over the children,

and sole authority to decide the location of the family’s

domicile, persisted well into the 20th century.’ As the

wife’s legal protector in Texas as in all other states, the

husband was expected to defend his wife from other

men’s violence. However, his right of access to her body

prevented him from being convicted of raping her until

4. Elizabeth York Enstam, Women and the Law, Tex. St. Hist.

Ass’, https://www.tshaonline.org/handbook/online/articles/jsw02

(last visited Dec. 28, 2015); on the husband's authority over the family,

and the constraints on wives, see generally MICHAEL GROSSBERG,

GOVERNING THE HEARTH: LAW AND THE FAMILY IN NINETEENTH-

Century AMERICA 25-30 (1985); HENprRIK A. HartToGc, MAN AND WIFE

in America: A History 93-167 (2000); BARBARA YOUNG WELKE, LAw

AND THE BORDERS OF BELONGING IN THE LONG NINETEENTH CENTURY

Unrrep States 64-70 (2010).

5. See Harroc, supra note 4, at 306-08. The Texas Equa! Rights

Amendment of 1972 was taken to imply that each spouse could retain

his or her separate domicile. 39 Tex. Jur. 3d Fam. Law § 391 (2015). In

1963 and 1965, the provisions of 1925 Tex. Rev. Civ. Stat. 4613-4627

(“Rights of Married Women”) were amended, and the “disabilities

of coverture” abolished.

women’s challenges to the marital rape exemption

beginning in the 1970s resulted in changes in the laws.°

Marital rape became a crime in all fifty states by 1993."

This ostensible protection extended to deprivation

of political rights. See Nancy F. Cott, Marriage and

Women’s Citizenship in the United States, 1830-1934, 103

Am. Hist. Rev. 1440, 1440-74 (1998). Because a married

woman lacked a civil identity distinct from her husband’s,

she was barred from voting, holding office, or serving on

juries. The expectation that women would become wives

was strong and pervasive enough that married women’s

political “disabilities” extended to the whole female sex:

no woman, whether unmarried or married, had political

rights. These restrictions, too, were justified as protective.

Wives, daughters, maiden aunts, widows—all women were

said to be represented in public life through male heads of

households, and thus shielded from the stresses of public

life and the burdens of political competition and civic

obligation for which they were imagined to be ill-suited.

The “protections” of coverture exposed women to

many grave harms in addition to the obvious lack of

the right to vote: women property holders were taxed

without representation; women were barred from many

employments and professions; a woman defendant did not

6. See Jill Elaine Hasday, Contest and Consent: A Legal

History of Marital Rape, 88 Ca. L. Rev. 1373, 1482-1505 (2000).

7. The husband’s property right in his wife’s body and services

was reinforced through the rule that allowed him to recover for loss

of consortium but denied her a parallel remedy. A wife had no such

reciprocal right in Texas until 1978. Whittlesey v. Miller, 572 S.W.2d

665, 668-69 (Tex. 1978).

face a jury of her peers. Stereotypes that permeated the

logic of coverture easily leaked out of the law of domestic

relations into a wide range of regulations. The language of

protecting women from the perils of public life sustained

exclusions on women’s entry into the practice of law, for

example. In affirming Illinois’ refusal in 1872 to admit a

woman to the bar, three members of this Court invoked

the common law principle that “a woman had no legal

existence separate from her husband, who was regarded

as her head and representative in the social state,” and

declared that “[mjan is, or should be, woman’s protector

and defender. The natural and proper timidity and

delicacy which belongs to the female sex evidently unfits it

for many of the occupations of civil life.” Bradwell v. State,

83 U.S. (16 Wall.) 130, 141 (1872) (Bradley, J., concurring,

joined by Swayne & Field, JJ.).

These constraints were erased only slowly, erratically,

and with wide variability from state to state. Resistance

to change was generally defended by the assertion that

women’s interests were protected by their husbands’

ballots and that it would be burdensome to women to add

public duties to their primary domestic responsibilities.*

Even after women had won the right to vote, many states

continued to constrain their access to full political rights,

generally using similar logic. In a solid majority of states,

the Nineteenth Amendment was so narrowly interpreted

that women were barred from serving on juries by

exemptions that were most often justified as protecting

8. See ALEXANDER Keyssak, THE RIGHT TO VoTE: THE CONTESTED

History oF DEMOCRACY IN THE UNITED StaTEs 191-93, 208-10 (2000);

Reva Siegel, She the People: The Nineteenth Amendment, Sex

Equality, Federalism, and the Family, 115 Harv. L. Rev. 947, 977-

87 (2002).

women’s particular delicacy of morals. In 1937, New York

women were offered a blanket option to choose exclusion

from jury service if called, in part on the grounds that

women should be protected from being sequestered in

a room with men, or being subject to hearing “sordid

evidence.” When Florida women in 1949 finally were

authorized to serve on juries, they had to first register

their individual willingness at the county courthouse, so

that any reluctant woman would be protected from “the

embarrassment of hearing filthy evidence.” Massachusetts

likewise permitted women to serve on juries that same

year with the proviso that no woman would be required to

serve if the presiding judge had reason to believe that she

would “likely be embarrassed by hearing the testimony

or by discussing [it] in the jury room.” KerBER, No

CONSTITUTIONAL RIGHT, supra note 3, at 136-47 & ch. 4; see

also VANBURKLEO, supra note 3, at 185-207; see generally

SANDRA F. VANBURKLEO, GENDER REMADE: CITIZENSHIP,

SUFFRAGE, AND PuBLIC POWER IN THE NEw NoRTHWEST,

1879-1912, at ch. 4-7 (2015). No woman served on a jury

in Texas until 1955.

In 1961, this Court, citing women’s “special

responsibilities,” upheld Florida’s requirement that

women, but not men, register their willingness to have

their names added to the pool from which jurors were to

be selected. This “relief” for women from having their

names automatically placed into the jury pool, as men’s

were, was envisioned as protective. Justice John Marshall

Harlan II explained that “woman is still regarded as the

center of home and family life. We cannot say that it is

constitutionally impermissible for a State to conclude

that a woman should be relieved from the civic duty of jury

service unless she herself determines that such service

is consistent with her own special responsibilities.” Hoyt

v. Florida, 368 U.S. 57, 62 (1961).

For much of American history, such laws stood

supported by cultural beliefs about women’s nature and

abilities and their corresponding need for protection.’

The laws in turn preserved and institutionalized the same

stereotypes. Until well into the 20th century, it remained

the conventional wisdom of legislatures and courts that

women are too weak to act autonomously; that they need

protection from the perils of public life; that women’s

need for protection justifies limivations on their liberty.

“These views, of course, are no longer consistent with

our understanding of the family, the individual, or the

Constitution.” Planned Parenthood of Se. Pa. v. Casey,

505 U.S. 833, 897 (1992). In Casey, this Court recognized

the husband’s “troubling degree of authority over his

wife” embedded in the coverture regime and rejected that

understanding of the marital relationship as “repugnant

to our present understanding of marriage” because of its

affront to the wife’s dignity. Casey, 505 U.S. at 898; see

KERBER, No CONSTITUTIONAL RIGHT, supra note 3, at 307.

Since the 1970s, courts and legislatures, pressed

by women’s rights claimants, have recognized that laws

reflecting gender stereotypes are harmful to both women

and society. Decisions of this Court have interrupted

and broken the self-perpetuating cycle in which laws

9. The same cultural beliefs often did not apply to African

American women. See Sharon Harley, The Solidarity of Humanity:

Anna Julia Cooper’s Personal Encounters and Thinking about the

Intersectionality of Race, Gender, and Oppression, WomEN & Soc.

MoveMEnTs, March 2015 (Thomas Dublin & Kathryn Kish Sklar

eds.).

calling for protections of women affirmed discriminatory

stereotypes and deprived women of dignity equal to men’s.

See, e.g., Weinberger v. Wiesenfeld, 420 U.S. 636, 642-

45 (1975) (discussing “overbroad generalizations”—.e.,

stereotypes). Laws once viewed as protective of women

can now be understood as discriminatory. It is no longer

reasonable to hold that women lack fully equal legal status,

or the competence to make responsible choices.

Il. TWENTIETH-CENTURY SEX-BASED LABOR

LAWS CLAIMED TO PROTECT WOMEN,

WHILE CONSTRAINING THEIR ACCESS TO

EQUAL EMPLOYMENT.

Once women entered industrial employment in large

numbers, state legislatures began to pass laws ostensibly

to protect them at work. The first laws, in the late 19th

century, limited women’s hours of work. See, e.g., 1893 Ill.

Laws 99 (limiting women’s work hours to eight per day

and forty-eight per week); 1874 Mass. Acts 145 (limiting

women’s work hours to ten per day and sixty per week);

1897 Pa. Laws 30 (limiting women’s work hours to twelve

per day and sixty per week); see generally NANcy WoLocu,

MULLER V. OREGON: A BrieF History WITH DOCUMENTS

(1996). These protections for women workers emerged in

a legal environment in which this Court upheld “liberty

of contract” between employer and employee and struck

down laws regulating men’s hours, unless their conditions

of overwork endangered the public. The courts held that

male workers’ freedom to negotiate their conditions of

work must not be constrained, but they at first differed as

to protections for women. Lochner v. New York, 198 U.S.

45 (1905); but cf Holden v. Hurdy, 169 U.S. 366 (1898)

(upholding limits on hours of male miners, whose good

health was part of the public welfare). In 1895, an Illinois

court held that “woman is entitled to the same rights,

under the constitution, to make contracts with reference

to her labor as are secured thereby to men.” Ritchie v.

People, 155 Ill. 98 (1895) (invalidating an eight-hour law

for women workers on the ground that women could not

be denied liberty of contract); WoLocu, supra, at 16-17.

But, following the custom of the day, most state legislators

and state courts assumed that: “It is undisputed that

some employments may be admissible for males and yet

improper for females .. ” Commonwealth v. Beatty,

15 Pa. Super. 5, 18 (1900); ELIZABETH FAULKNER BAKER,

PROTECTIVE LABOR LEGISLATION: WITH SPECIAL REFERENCE

TO THE WOMEN IN THE STATE OF NEw York 201, 425-26

(1925).

This Court accepted broad legal limitations on

women’s employment when persuaded by lawyer Louis

Brandeis that women’s wage work, unless regulated by

the state, unavoidably threatened the public welfare.”

To defend Oregon’s law regulating the hours of female

(but not male) factory and laundry workers, Brandeis

detailed whai he called “facts of common knowledge”

and offered formidable statistical data to demonstrate

that women’s ill health, fatigue and exposure to unsafe

and unsanitary conditions deleteriously affected their

capacity to produce and sustain healthy offspring. This

Court in Muller v. Oregon unanimously sustained the law

on the grounds that women’s health was more precarious

10. Muller v. Oregon, 208 U.S. 412 (1908); Alice Kessler-Harris,

Affirming the Sexual Division of Labor, in Days or Destiny, supra

note 2, at 204, 204-19; see Nancy Wotocn, A Ciass By Herse-r:

Protective Laws FoR WoMEN WorkKERS, 1890s-1990s, at ch. 3 (2015).

than that of men; that women had household as well as

wage-earning duties; and that the nation had a stake in

women’s well-being because of women’s roles as present

or future mothers. Thereafter, women were assumed to

be defenseless creatures, easily exploited by employers,

and therefore subject to state protection."

By 1917, all but nine states had enacted some

legislation restricting female labor, while laws regulating

male labor remained unconstitutional. The laws fell into

two categories: some explicitly excluded women from

engaging in certain kinds of jobs; others restricted women

from working during night hours, limited the number of

hours in a day or week a woman might work, and regulated

the conditions of the workplace. KessLEr-Harris, Out To

Work, supra note 11, at 188-89; WoLocn, supra note 10,

at 87-109 & ch. 4. Since industrial workers at the time

frequently labored under harmful conditions and for

overlong hours, these protections were not inherently

detrimental, but rather were harmful primarily because

they were sex-specific. Labor laws limiting working hours

and making conditions safer would not have disadvantaged

wage-earning women if they had covered men too.

While couched in arguments for women’s health,

morals, and physical safety, the stated purposes of sex-

11. Juprrn A. Baer, THe CuHaINns or Protection: THE JUDICIAL

RESPONSE TO WomMEN’s LABOR LEGISLATION, at ch. 1 (1978); ALICE

KessLER-Harris, Out TO Work: A History OF WAGE-EARNING WOMEN

IN THE UnitED States 180-88 (1982) [hereinafter Out To Work];

WoLocH, supra note 10, at 18-23; see aiso Alice Kessler-Harris,

Protections for Women: Trade Unions and Labor Laws, in DouBLE

Exposure: WoMEN’s HEALTH HAZARDS ON THE JOB AND AT Home 139,

139-54 (Wendy Chavkin ed., 1984).

specific protective labor legislation were often muddled.

Legislation frequently invoked the public health,

suggesting that women did not have the right to decide

the uses of their own bodies or the control of their own

morals, and that women’s, but not men’s, rights could be

subordinated to the interests of a “public.” Texas, for

example, affirmed its primary concern for protecting

the public welfare in 1918, by forbidding the employment

of women in any place that permitted “any influence,

practices or conditions calculated to injuriously affect

the morals” of female employees. 1918 Tex. Gen. Laws

105, available at http://www.Irl.state.tx.us/scanned/

sessionLaws/35-4/HB 94 CH_58.pdf.

Proponents of such legislation sought to protect women

workers on the assumption that women, the weaker sex,

were subject to greater exploitation than men; and that

women, lacking strong trade unions, had fewer resources

for combating poor working conditions than men did. But

proponents also supported sex-specific regulation because

of worry that, left to their own devices, women workers

would prioritize short-term economic self-interest rather

than the best interests of family or community (a worry

not expressed about male workers). KEssLER-HarRIs, OUT

TO Work, supra note 11, at ch. 7; WoLocn, supra note 10,

at 18-23; see also United States v. Darby Lumber Co., 312

U.S. 100 (1941). The New York Court of Appeals sustained

a 1913 state law prohibiting women from work in factories

and print shops from 10 p.m. to 6 a.m., which the State

defended by arguing that “ignorant women can scarcely

be expected to realize the dangers not only to their own

health but to that of the next generation.” WoLocH, supra

note 10, at 94. Echoing Muller, the New York Court of

Appeals suggested that the ban protected the future

children of female workers. Alice Kessler-Harris, The

Paradox of Motherhood: Night Work Restrictions in the

United States, in PRoTecTING WoMEN: LABOR LEGISLATION

IN EUROPE, THE UNITED STATES AND AUSTRALIA, 1880-1920,

at 337 (Ulla Wikander, Alice Kessler-harris & Jane Lewis

eds., 1995); see People v. Schweinler Press, 214 N.Y. 395,

405, 408 (1915).

Such protective labor laws bettered conditions

for some women, but also kept women out of certain

employments—often higher-paying ones. The Women’s

Bureau of the U.S. Department of Labor supported

protective laws on the grounds that they ameliorated the

working conditions of millions of women, while conceding

that they might handicap some groups of working women.

In 1925, economist Elizabeth Faulkner Baker found that

some 60,000 women had already been “cramped or cut

off” from jobs they might have had. Baker concluded

that “protective laws curtailed opportunity” in fields in

which women were a minority and might compete with

men.'* Laws passed to protect women also were ripe for

manipulation and misuse. Male trade union leaders made

no secret of their hopes that protective legislation would

help them to restrict women’s work. The iron molders

union, for example, played an important role in throwing

hundreds of women out of jobs when it convinced the

New York legislature to prohibit women from working

12. Baker, supra, at 425-26; see WoLocn, supra note 10, at 139;

Women’s Bureau, U.S. Dep’t or Lasor, SoME EFFects oF LEGISLATION

LimiTinG Hours ror WomEN, BuLL. No. 15, at 16 (1921); Women’s

Bureau, U.S. Dep’t or Lasor, History oF LABOR LEGISLATION FOR

WoMEN IN THREE States, Bui. No. 66-1 (1927); see also EILEEN

Boris, Home To Work: MOTHERHOOD AND THE Po.irtics oF INDUSTRIAL

HOMEWORK IN THE UNITED States 273-303 (1994).

in the same rooms as men and to regulate the size and

weight of objects women could handle. KessLer-Harris,

Out To Work, supra note 11, at 204. Legislatures created

regulations that were contradictory with regard to their

protective intent: New York, again, for example, prohibited

women from working night hours as pharmacists in

hospitals and clinics, despite the fact that those jobs were

seen as safe, but did not regulate women’s night work

in service jobs not desired by men, including in hotels,

restaurants, and cabarets, despite the evident danger

to their morals in these locations. Cannery workers,

generally immigrant women, were routinely exempted

from night work restrictions; domestic servants, many of

them African-American, and particularly vulnerable to

exploitation, did not benefit from protection. VANxssa H.

May, UNPROTECTED LaBor: HOUSEHOLD Workers, POLITICs,

AND MIppLE-CLAss REFORM IN NEw York, 1870-1940, at 3-4

(2011); see also KEsSLER-HARRIS, OuT To Work, supra note

11, at 191-95. As late as 1944, and after millions of women

had successfully worked at night, fifteen states still barred

night work for women as inappropriate.

Once New Deal-era legislation allowed regulation of

men’s as well as women’s working conditions, hours and

wages, sex-specific protections for women workers should

have been unnecessary. See, e.g., Fair Labor Standards

Act of 1938, 29 U.S.C. § 201, et seq.; United States v. Darby

Lumber Co., 312 U.S. 100 (1941) (upholding the Fair Labor

Standards Act as constitutional). Yet many such laws

remained, supported by stereotypical views of women’s

character and social roles. In 1945, for example, Michigan

passed a law that prohibited women’s employment as

bartenders in cities with populations over 50,000, unless

the women employees were the wives or daughters of male

bar owners. See Goesaert v. Cleary, 335 U.S. 464, 465

(1948) (upholding Section 19a of Act 133 of the 1945 Public

Acts of Michigan, Mich. Stat. Ann. § 18,990(1) (Cum. Supp.

1947)). The ostensible intent of the law was to protect

women from dangers in bars, as noted in this Court’s

decision upholding the law. Seventeen states prohibited

women from bartending in 1948 and the Goesaert decision

encouraged at least five more states to do so. Yet there

were no prohibitions on women taking lower-paid jobs in

the same bars as waitresses.

It became apparent during and after World War II that

such “protective” legislation often disadvantaged women

in the workplace and prevented them from competing with

men. When the war industry wanted to draw more women

workers into the labor force, states quietly circumvented

sex-specific protective labor legislation: policymakers

encouraged women to work overtime hours in order to

contribute to the war effort and expand their incomes.

RuTH MILKMAN, GENDER AT Work: THE Dynamics OF JoB

SEGREGATION BY SEX DurinG WorLD War II, at 99-127

(1987). But after the war, protective laws came back into

effect, with the aim of easing women out of jobs in favor of

returning veterans. The strategy succeeded: trade unions

colluded in enforcing sex-specific restrictions on weight

lifting, night work, split shifts and other such elements,

in order to push women out of higher-paying industrial

jobs. Protective labor laws thus contributed to a rapid

redistribution of female labor from factories to homes and

then into “pink-collar” service jobs.

By and large, one major impact of the varied state

statutes that claimed to protect women workers was to

ensure the continued segmentation of the labor market

into (higher-paid) male and (lower-paid) female jobs.

Following now outdated sensibilities about male and

female roles, employed women’s earnings were deemed

supplementary and women and their children were

expected to count on the higher wages of men in their

families. Yet the U.S. Women’s Bureau showed that women

who worked for wages almost always did so because

their families depended on what they earned, because

their husbands or fathers earned low or no wages. Linda

Gordon & Sara McLanahan, Single Parenthood in 1900,

16 J. Fam. Hist. 97, 104 (1991); see Linpa Gorpon, PITIED

But Not ENTITLED: SINGLE MOTHERS AND THE HIsTORY

or WELFARE 1890-1935, at 30, 193-95 (1995). Far from

protecting women, legislation that kept women away from

higher-wage jobs forms the basis for today’s continuing

wage inequality.

Another justification for protective legislation was that

women were too weak, and too vulnerable to damage to

their reproductive capacity, to be allowed to do certain jobs.

But if and when they were freed from these protections,

women disproved these assumptions. They proved

themselves to be capable—indeed excellent—in jobs once

thought to be beyond their capacity. For example, in war

industries women successfully performed “male” jobs;

and women served as nurses and drivers on the front lines

of military operations. Moreover, many jobs that were

considered “women’s work”—paid and unpaid—required

women to carry quite heavy loads. They carried tired

children, sick adults, typewriters, groceries, and piles

of clothing. There has been no evidence in any of these

situations that women’s health or reproductive capacity

suffered more than men’s did from carrying weights or

performing other strenuous work. See generally NANcyY

MacLean, FrReepom Is Not EnouGH: THE OPENING OF

THE AMERICAN WORKPLACE, at ch. 4, 8 (2006); see also

JACQUELINE JONES, LABOR OF Love, LABorR OF SoRROW:

BLACK WoMEN, WoRK, AND THE FAMILY, FROM SLAVERY TO

THE PRESENT 143-45, 199-210 (2d ed. 2009).

Assumptions about women’s physical weakness

and their necessary social roles kept sex-specific labor

legislation in place until after the passage of Title VII of

the Civil Rights Act of 1964, when the Equal Employment

Opportunity Commission discredited such legislation as

a form of discrimination. Women challenged numerous

types of labor legislation initially described as protecting

them, because such legislation actually hampered their

choices and restricted them to lower-paid employment

understood as “women’s work.” In 1965, for example,

California aviation worker Velma Mengelkoch challenged

state maximum hours limits for women workers when her

employer refused her a promotion on the grounds that

she could not work the hours required by the new job.

Mengelkoch v. Indus. Welfare Comm'n, 442 F.2d 1119 (9th

Cir. 1971). The maximum hours limits were imposed by

section 1350 of the Labor Code of California (an eight-hour

day and forty-hour week). Jd. at 1120-21. She went first

to the newly established Equal Employment Opportunity

Commission, and then to federal court, where ultimately

the Ninth Circuit held that Mengelkoch’s challenge to

the law was substantial and could be distinguished from

this Court’s decisions in both Muller and Goesaert."* Just

13. Mengelkoch v. Indus. Welfare Comm’n, 442 F.2d 1119, 1123-

25 (9th Cir. 1971); see discussion of Mengelkoch in GRETCHEN RITTER,

THE CONSTITUTION AS SOCIAL DesiGn: GENDER AND Crvic MEMBERSHIP

IN THE AMERICAN CONSTITUTIONAL ORDER 243-46 (2006), and SERENA

MAYERI, REASONING FROM RACE: FEMINISM, LAW, AND THE CrviL RIGHTS

REVOLUTION 30-33 (2011).

a year later, Georgia telephone operator Lorena Weeks

successfully challenged state weight-lifting limits (thirty

pounds) that excluded her from the better-paid job of

switchman. Weeks v. S. Bell, 408 F.2d 228 (5th Cir. 1969).

In 1968, railway employee Leah Rosenfeld, unable to

become a station agent, challenged California’s eight-hour

maximum hours law and the state weight limits rule for

women in transportation. Rosenfeld v. S. Pac. Co., 293 F.

Supp. 1219, 1228 (C.D. Cal. 1968) (voiding paragraph 17

of California Industrial Welfare Commission Order No.

9-63).

After some deliberation, the EEOC in 1969 held

sex-specific labor laws to be in violation of the equal

opportunity provisions of the Civil Rights Act, unless

sex was a bona fide occupational qualification. It left

intact state provisions that required such benefits as

rest periods for women. Federal courts went further,

affirming employees’ claims of sex discrimination and

invalidating sex-specific state protective laws. Rosenfeld,

293 F. Supp. 1219, affd, 444 F.2d 1219 (9th Cir. 1971). A

dramatic improvement in female workforce representation

resulted. One knowledgeable commentator noted that

“10 percent of the female work force, or four million

women, were in higher occupational classifications in 1980

than would have been the case under the occupational

distribution of 1965.” ALFRED W. BLUMROSEN, MopERN Law:

THE Law TRANSMISSION SYSTEM AND EQuAL EMPLOYMENT

OpporTUNITY 297-99 (1993). The change demonstrated

that protective labor laws applying only to women

posed a considerable impediment to women’s labor force

opportunities.

Laws claiming to protect women very often focused on

their reproductive capacities, and in so doing, prevented

pregnant women from enjoying the liberties of other

citizens and workers. By 1970, thirty-five states had

excluded pregnant women from collecting unemployment

insurance on the grounds that they were not “employable”;

almost every school district mandated that pregnant

women teachers leave their classrooms by the end of their

fourth or fifth month of pregnancy, and some required a

mandatory leave without pay before they were allowed to

return. Women, arguing that these laws did not protect

the health of women and children as claimed, sued to keep

their jobs, and won in this Court in 1974. Cleveland Bd. of

Educ. v. LaFleur, 414 U.S. 632 (1974); see Turner v. Dep't

of Emp’t Sec. & Bd. of Review of Indus. Comm’n of Utah,

423 U.S. 44 (1975); WoLocu, supra note 10, at 239-42; see

also MacLEANn, supra, at 129-36.

The courts then extended their skepticism of

protective rationales to employment practices of private

employers claiming to protect pregnant women in the

workplace. In the 1970s, women challenged employment

practices that kept pregnant women and those capable

of becoming pregnant from a wide range of industria!

jobs thought to expose them to toxic substances. Women

argued that those practices did not, in fact, protect the

health of women and children (or fetuses) as claimed by

employers; instead, those practices discriminated against

women and contravened Title VII. See Satty J. KENNEY,

For WHOSE PROTECTION? REPRODUCTIVE HAZARDS AND

EXCLUSIONARY POLICIES IN THE UNITED STATES AND BRITAIN

50-51 (1992). In one example that later came before this

Court, when the federal government pressured Johnson

Controls (a manufacturer of batteries containing lead, a

known toxic substance) to employ women, the company

retaliated by banning the employment of all fertile women.

The Seventh Circuit ruled in favor of the company on

the grounds that women workers should not be trusted

to make their own choices, for society would later pay

the price. UAW v. Johnson Controls, Inc., 886 F.2d 871

(7th Cir. 1989). This Court reversed in UAW v. Johnson

Controls, with a nod to the long history of such protective

rationales, noting that “(cjoncern for a woman’s existing

or potential offspring historically has been the excuse for

denying women equal employment opportunities.”"* Today

we know, furthermore, that it does not reflect good science

to ban pregnant women, but not men of reproductive

age, from jobs involving toxic exposure because men’s

reproductive health is similarly vulnerable to damage.

In some instances, protective laws were not truly

designed to protect the health and best interests of

women—if anything, they may have been tacitly designed

to protect the interests of men. But, ultimately, sex-

specific protective labor laws were struck down even

when genuinely intended to protect women. The fate

of these laws illustrates that even when protection is a

genuine goal, not a pretext, and even where an apparently

protective regulation in theory might serve to safeguard

health, such laws may function in practice to limit

women’s freedom and autonomy. As such, they have been

rejected as unlawful and unconstitutional because they

14. UAW v. Johnson Controls, Inc., 499 U.S. 187, 211 (1991).

See discussion of Johnson Controls in Cyntuia DanieLs, AT WoMEN’s

EXPENSE: STATE POWER AND THE Po.itics or Feta. Ricuts 57-97 &

ch. 3 (1993); see also Judith Scott, Keeping Women in Their Place:

Ezclusionary Policies and Reproduction, in DouBLe Exposure,

supra note 11, at 180-95.

effectively prevent women from exercising their right to

self-determination in matters central to their families,

livelihood, and well-being.

Today, this Court rejects gender stereotypes in laws

and regards sex-based restrictions in employment to be

sex discrimination. Nevertheless, the legacies of such

laws, and the long shadow of coverture, though generally

repudiated, have not been completely eradicated. Distrust

of women’s autonomy, and lingering beliefs in women’s

need for protection from situations they are assumed to be

unable to negotiate, may still on occasion find expression

in law. This Court has recognized this, in Casey, using

the “undue burden” framework to assess whether state

restrictions on abortion “impose a substantial obstacle to

a woman’s choice” to exercise a constitutionally protected

right. Planned Parenthood of Se. Pa. v. Casey, 505 U.S.

833, 901 (1992).

Iil.IN LIGHT OF THIS HISTORY, WHEN A

LAW CLAIMS TO PROTECT WOMEN BY

REGULATING ABORTION CLINICS, THE

COURTS SHOULD CAREFULLY EXAMINE

WHETHER THE LAW ACTUALLY PROMOTES

WOMEN’S HEALTH, AND AT WHAT POSSIBLE

COST TO WOMEN’S LIBERTY.

This Court observed several decades ago that “the

position of women in America has improved markedly in

recent decades.” Frontiero v. Richardson, 411 U.S. 677,

685 (1975). Nevertheless, women still face obstacles that

are at times “more subtle.” Jd. at 686. Laws claiming to

protect women may be some of these “more subtle” threats

to women’s dignity and equality, and thus warrant very

careful scrutiny from this Court.

The history recounted here suggests that protective

rationales may obscure the real effects of laws that

ostensibly regulate women’s health and safety. In

Casey, this Court recognized that while “the State may

enact regulations to further the health or safety of a

woman seeking an abortion,” the State may not enact

“fuJnnecessary health regulations.” Casey, 505 U.S. at 878.

Casey instructs courts to review carefully regulations that

invoke protection of women’s health to ensure that the

laws, in practice, truly do serve health-related purposes.

Moreover, Casey forbids even a law designed to protect

women’s health or to preserve potential life from imposing

an undue burden on women’s freedom and dignity. States

may enact only regulations that are “calculated to inform

the woman’s free choice, not hinder it.” Jd. at 925.

Texas regulations on abortion clinics, whether or not

they are genuinely intended to protect women’s health,

should be carefully examined for the actual burdens they

place on women, for here “the liberty of the woman is at

stake in a sense unique to the human condition.” /d. at 852.

CONCLUSION

The judgment of the court of appeals should be

reversed.

Respectfully submitted,

KEVIN M. Fone

Counsel of Record

PILLSBURY WINTHROP SHAW PITTMAN LLP

Four Embarcadero Center, 22nd Floor

San Francisco, CA 94111

(415) 983-1000

kevin.fong@pillsburylaw.com

CHRISTINE A. SCHEUNEMAN

PILLSBURY WINTHROP SHAW PiTTMAN LLP

725 South Figueroa Street, Suite 2800

Los Angeles, CA 90017

(213) 488-7100

Counsel for Amici Curiae

January 4, 2016

APPENDIX — LIST OF AMICI CURIAE

HISTORIANS’

Eileen Boris

Hull Professor of Feminist Studies

University of California, Santa Barbara

Nancy F. Cott

Jonathan Trumball Professor of American History

Harvard University

Cornelia H. Dayton

Associate Professor of History

University of Connecticut

William E. Forbath

Lloyd M. Bentsen Chair in Law

Associate Dean for Research

University of Texas at Austin

Linda Gordon

Florence Kelley Professor

Professor of History

New York University

Michael Grossberg

Sally M. Reahard Professor of History

Professor of Law

Indiana University

* The amici listed in this appendix appear in their individual

capacities; institutional affiliations are listed for identification

purposes only.

Appendix

Sharon Harley

Associate Professor of African American Studies

University of Maryland

Hendrik Hartog

Class of 1921 Bicentennial Professor in the

History of American Law and Liberty

Director, Program in American Studies

Princeton University

Jacqueline Jones

Walter Prescott Webb Chair in History and Ideas/

Mastin Gentry White Professor of Southern History

University of Texas at Austin

Linda K. Kerber

May Brodbeck Professor in the

Liberal Arts and Professor of History Emerita,

Lecturer in Law

University of Iowa

Alice Kessler-Harris

R. Gordon Hoxie Professor of American History in

Honor of Dwight D. Eisenhower

Columbia University

Nancy MacLean

William H. Chafe Professor of History and Public

Policy

Duke University

Appendix

Serena Mayeri

Professor of Law and History

University of Pennsylvania Law school

Sandra F. VanBurkleo

Associate Professor of History

Wayne State University

Barbara Y. Welke

Distinguished McKnight University Professor,

Professor of History and Professor of Law

Co-Director, Program in Law and History

University of Minnesota

Nancy Woloch

Adjunct Professor of History

Columbia University

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