Any student of America’s past knows that history has not been friendly to women. The leaked document authored by Supreme Court Justice Samuel Alito considering the future of Roe v. Wade cited the story as the reason Roe was wrongly decided because the Constitution does not explicitly name abortion as a protected right for women.
Consider the reasons. First, the Founding Fathers explicitly endorse the rights of slaveholders and the institution of slavery in the Constitution – while never uttering the word. Second, enslaved women were a central and essential means of generating wealth for slave owners. Slaveholders had a vested and lucrative interest in actively denying enslaved women of color their reproductive rights. In 1662, the Virginia General Assembly codified a law based on the partus sequitur bellym (literally meaning “the offspring follows the womb”), whereby children born to enslaved women followed the status of their mother rather than that of their dad. This was a radical departure from the usual practice of borrowing from English common law for the new nation and instead drawing on Roman law. When it pleases those in power, they choose what works to support their own position, as the Virginians have done here. Many other states have followed suit.
The intent of the law was to ensure that children born from the rape of women held in bondage would increase the wealth of their white owners, adding to the population of their forced labor camps. The majority of the men who wrote the Constitution and served as the nation’s first presidents were from Virginia, showing no moral or legal objection to this law. Enslaved women who sought to abort their pregnancies were brutally punished as they were seen as stealing property from their white male owners.
White women also belonged – not to slavers but to their husbands – at the time the Constitution was drafted. They had no voice, no vote and no control over their own bodies. Husbands have the right to physically discipline and sexually assault their wives; women could not obtain a divorce; have custody of their children; own property; supporting themselves outside of marriage or even speaking in most religious contexts. After an eighty-year battle, women finally won the franchise in 1920 and slowly began to fight for greater rights.
The men who drafted the Constitution never even considered women’s rights – let alone the intimate issues of control over their sexuality, number and spacing of pregnancies. Men and husbands, supported by all Christian denominations represented in the colonies, were considered the head of the wife and household.
Native women of the Haudenosaunee (Iroquois) nation, living side by side with colonial women at the time of the Seneca Falls Convention in 1848 in upstate New York, enjoyed more rights within their own nation than European women. Their rights prompted colonial women to seek similar rights for themselves when they learned that some indigenous women had a voice in tribal deliberations, owned property, could divorce their husbands, retain custody of their children , participate in religious ceremonies, hold political office and choose their leader.
Justice Alito’s requirement that only rights “deeply rooted in the history and tradition of this nation” be constitutionally protected is shocking since those whose rights were deeply rooted in the history of our nation are men who bought and sold, raped and worked, other human beings they believed they had the right to possess. We can certainly agree that the Constitution is a faulty document rooted in the context of history when racial differences and segregation were upheld by white supremacy and gender roles were codified by the church, seen as ordained by the natural law and supported by patriarchy.
The spirit and vision of the Declaration of Independence and the Constitution are greater and higher than its historic words, which is why they continue to inspire hope. Most of the rights that women have fought for and won in the hundred years since they won the ballot were not “deeply rooted in the history and tradition of the Nation”. This requirement is a slap in the face and a legal threat to all marginalized Americans who have worked to expand the rights of those who have been historically excluded, including people of color, Indigenous peoples, LGBTQ people, people with disabilities and women. . -since we had to fight for every ounce of respect, recognition and rights already granted to some.
Candace Waldron, MDiv, is a freelance blogger at www.candacewaldron.comauthor of My Daughter He: Transitioning With Our Transgender Children, and former Deputy Director of Protective Services at AgeSpan and former Executive Director of HAWC. She lives in Rockport.