The Equalizers


April 1988

Breaking legal ground, a tough new breed of lawyers is championing women's rights all the way to the Supreme Court.

Joan Bertin, an attorney with the American Civil Liberties Union, still recalls her first reaction when she got off the airplane in Willow Island, West Virginia, in the fall of 1979: Her eyes burned from the acrid, polluted air. A small town in a rural corner of the state, Willow Island had once been a farming community. But by the late '70s it had become home to several chemical manufacturers, among them American Cyanamid Company. Bertin had flown down from New York at the request of a group of women who worked at American Cyanamid. Among them were five women who, in the previous year, had undergone surgical sterilization out of fear that if they didn't, they would lose their jobs.

The women's fears were well founded. More than a year earlier—in January 1978, American Cyanamid had told its female production workers that chemicals used in most areas of the plant posed a danger to fetuses. So the company was considering barring all women between the ages of 18 and 50 from working in those areas—regardless of the woman's marital status or use of birth control. If the policy went into effect, the company said, it would try to place them in other jobs. But if no vacancies were available, they would be dismissed—unless, of course, they could prove they were infertile.

The women, many of them undereducated and underskilled, were alarmed by the prospect of losing union-wage-scale jobs. (The area's other chemical plants, they were told, were planning to adopt similar policies.) "The women, rightfully, panicked—so one at a time, five of them went out and got sterilized," says Bertin, who today is the associate director of the ACLU's Women's Rights Project. "The effect on the individual women was quite devastating."

After meeting with the five, Bertin agreed to take American Cyanamid to court. She was confident she was on solid legal ground, believing the policy was a violation of Title VII of the Civil Rights Act, a section that prohibits sex discrimination in employment. A company, Bertin asserts, cannot create a fetal protection policy that discriminates against the employment of women and overrides federal civil rights laws. "When corporations say, 'Well, gee, in order to increase our own profits, we would like to be able to deprive women of their civil rights,' I'm inclined to respond, 'Well, people in hell want ice water,'" states Bertin. "It's fair and reasonable for corporations to be concerned about their profits. That doesn't authorize them to do things that are otherwise unlawful." Beyond the legal aspects, the case had a special resonance for Bertin. "It dealt with stereotypes about women, the manipulation of women with the fact that they bear children and the use of that to induce guilt. Ultimately, it came to symbolize the notion that if a woman wants a job in a man's world, she's got to be like a man."

After a long fight, American Cyanamid agreed in 1983 to an out-of-court cash settlement said to be in the six figures. "I was heavily invested emotionally in the case," recalls Bertin, who herself is the mother of two young children and who still becomes visibly upset when she recalls the case. "I really thought that a terrible, terrible injury had been done to these women."

Bertin, 41, is just one of a new breed of female lawyers that has emerged in the last fifteen years to practice a groundbreaking specialty: women's rights law. They are not as well known as those mainstream champions of feminism, Betty Friedan and Gloria Steinem. In fact, they're more often found in courtrooms, legislatures and universities than in the popular media. But it's through their efforts on behalf of women—at Willow Island and elsewhere—that important reproductive rights are being won and a range of legal precedents set to advance the goal of sexual equality.

Besides Bertin, other prominent feminist litigators and legal theorists include Kathryn Kolbert, 35, an attorney with the Women's Law Project in Philadelphia who won a decisive abortion case in the U.S. Supreme Court; Nadine Taub, 34, a law professor at Rutgers University who has launched a far-reaching project to get women's perspectives included in shaping reproductive rights laws; and Janet Gallagher, 41, a New Yorker who once joined a convent and who now is an attorney specializing in an area of growing concern: women's rights during pregnancy.

Bertin's guess is that there are fewer than 100 female lawyers in the country who work full time in women's rights law. Bertin, who has been a lawyer for fifteen years, didn't start out in women's rights. A graduate of New York University Law School, she did legal-services work on Manhattan's Lower East Side before joining the ACLU in 1978. She once considered pursuing history as a career but found herself drawn to work that would involve her in the issues of the day.

"As feminist lawyers, we are both the subject and the object of the discussion," says Gallagher. "Our relationship with the issues is much more immediate." As a result, the work can be emotionally demanding. Taub, sitting in her law school office at Rutgers in Newark, New Jersey, recalls a Newark case early in her career—in 1976—when the depth of her involvement surprised her. A woman who went to the police to report that she had been raped was placed in a cell as a material witness because the police believed she was a prostitute. Taub, director of Rutgers's Women's Rights Litigation Clinic, sued the police on the woman's behalf, charging a violation of her civil rights.

"The notion that this woman would be locked up and kept in a cell overnight after she had been raped was incredible," says Taub. "In working on that case, how I felt physically was a revelation to me. I didn't want my husband to touch me. There was an element of trust that was gone, and that feeling took a few days to dissipate." The police eventually agreed to settle the case out of court.

Strong emotional involvements for the lawyers who work on women's rights issues mean that there are, as Taub says, "a lot of emotional highs because I'm working in areas I care about." Taub, a graduate of Yale Law School, comes from a family of teachers. She started out in legal services in the Bronx and later worked at an ACLU storefront office in Newark. A period in the early '70s during which she lived in Sweden led to meetings with American conscientious objectors against the Vietnam War—and to an awakening of her own social conscience. She returned to the States in 1973 to head the newly formed Women's Rights Clinic at Rutgers and to join the law school faculty.

Sometimes the struggle for women's equality involves high up victories already won—such as in the realm of abortion rights. Kathryn Kolbert fought all the way to the U.S. Supreme Court to bar the State of Pennsylvania from placing restrictions on abortion rights. The Pennsylvania case, which drew national attention, stemmed from a 31-page omnibus statute passed by the Pennsylvania legislature in 1982 that sought to restrict women's access to abortions. One regulation even required that doctors performing abortions use the technique most likely to ensure the survival of the fetus, even if that technique increased the risk to the woman's health.

The Women's Law Project, long involved in abortion rights, assigned Kolbert to lead the challenge of the statute in court. She was representing the interests of several groups, including the American College of Obstetricians and Gynecologists. Kolbert lost the first round in a lower court, and the law went into effect—for one day. Kolbert managed to obtain an injunction effectively putting the law on hold while she appealed the court's ruling. When the U.S. Court of Appeals for the Third Circuit agreed with Kolbert and overturned the lower court, Pennsylvania appealed to the U.S. Supreme Court, Kolbert was confident that the Court would refuse to hear the case because of its similarity to cases it had previously decided. But the Court thought differently and agreed to hear arguments. Suddenly, the Reagan administration took notice. Here was an opportunity to begin to dismantle Roe v. Wade, the Court's landmark 1973 decision legalizing abortion. Attorney General Edwin Meese, through his acting solicitor, filed a brief supporting Pennsylvania's appeal and urging the Court to go further: to revere Roe v. Wade. "That was right after my first child, my son, was born, and I was kind of in a different place, so to come back to that was quite a shock," Kolbert recalls. "All of a sudden a case that in our minds had started as a local holding action really turned into a national debate over abortion again."

In the fall of 1985, the Supreme Court heard oral arguments in the case. The Court was packed; among the spectators was Kolbert's family. The attention the case was drawing underscored its importance for women, but it was also a reminder, in Kolbert's view, of the way in which the Reagan administration had attempted to politicize it. In an ironic fillip, Kolbert discovered that the lawyers' chambers near the courtroom had no women's bathroom. Her cocounsel stood guard while she used the men's room.

Eight months later, in a 5-4 decision, the Supreme Court sustained the appeals court's ruling, striking down the Pennsylvania statute as unconstitutional. "It was important because it went further than the Roedecision in recognizing that state legislators are not free to harass women who chose abortion," says Kolbert.

Kolbert recalls the case as she settles behind her desk in a whitewashed office in downtown Philadelphia. A meandering path from her chair to the door cuts through high stacks of books, briefs and pamphlets. An attorney for ten years, Kolbert started out in legal-aid work in Philadelphia before joining the Women's Law Project, which was begun in 1973. (She is also cofounder of the Women's Agenda, a Pennsylvania advocacy organization.) These days, says Kolbert, the Women's Law Project receives more than 7,000 calls a year from women throughout Pennsylvania with questions regarding job discrimination, sexual harassment and employment rights during pregnancy.

Women's rights during pregnancy is a special area of concern for Janet Gallagher, a New York attorney who gives new meaning to the term "workaholic." She works full time for the city as assistant corporation counsel on malpractice cases, and on her own time—evenings and weekends—pursues her work on women's rights issues. She also finds time to lecture on these issues around the country and to appear on television shows.

While still in law school at Rutgers, Gallagher began clipping articles that described attempts by courts and legislatures to regulate women's behavior during pregnancy. They included accounts of court decisions that conferred legal personhood on fetuses—for example, one permitting a lawsuit against a motorist because a passenger's pregnancy was terminated in a car crash. When she later became director of the Civil Liberties and Public Policy Program at Hampshire College in Massachusetts, she expanded her research.

Some of the most flagrant cases she found dealt with involuntary cesarean sections. One case, which Gallagher has discussed in an article in the Harvard Women's Law Journal, involved a Chicago woman, pregnant with triplets, who in 1984 was hospitalized during the final weeks of her pregnancy. She and her husband told the hospital they were opposed to a cesarean-section birth. But without the couple's knowledge, the hospital obtained a court order giving the hospital administrator custody of the unborn triplets and authorizing a C-section. When the woman started her labor and the doctor prepared to perform the operation, her husband resisted so vigorously that it took seven security guards to remove him. The woman was placed in "full leathers"—wrist and ankle cuffs to prevent her from moving—and the C-section was performed.

"I was literally outraged as the casualness with which women's bodies were being appropriated and almost being treated as jars," says Gallagher. "It's striking that judges can authorize court-ordered major abdominal surgery on a nonconsenting woman when they would balk so dramatically at an intrusion into a male prisoner's body. There was one case where they wanted to do a surgical body search of a suspected robber. He had been shot, and if they could product the bullets, they could convict him. And the court absolutely refused."

So far, Gallagher says, court orders for C-sections have been obtained in eleven states. Partly in response to the attention she had brought to the practice, medical groups, including the American College of Obstetricians and Gynecologists, are speaking out against it. In December, the American Medical Association filed a court brief opposing a decision by a Washington, D.C., court that she had ordered a C-section for a woman dying of cancer—despite the objections of both the woman and her doctors. The baby died at birth and the woman two days later.

Gallagher came to women's rights law by an unusual route: via a period spent in a convent right after college, then a decade of working to develop low-income housing, and then, finally, law school. She has been practicing for five years, but her involvement in reproductive rights issues dates back to the '70s. At one time, Gallagher's strong Roman Catholic faith led her to avoid the abortion issue, but she now supports abortion rights. "I think I would have more difficulty retaining my [church affiliation," she says, "if I were not engaged in active conflict with the religious hierarchy."

That adversarial stance is at the heart of practicing feminist law—as it was, historically, for women who wanted the opportunity to practice law at all. More than a century ago, after all, the Supreme Court actually barred women from practicing law. In 1873, Stanford law professor Barbara Babcock points out, "Myra Bradwell was denied admission to the Illinois bar by the Court on the grounds that she was a woman. The decision said it was because women's minds didn't work that way." One of the victories won by women's rights advocates at the turn of the century was a successful assault on that decision. As of 1985, the latest year for which figures are available from the American Bar Association, 13.1 percent of all lawyers were women. And in the 1986-87 academic year, women made up almost 41 percent of law school enrollment

Still, specializing in feminist law is a recent phenomenon. "Fifteen years ago, women's rights job didn't exist," says Joan Bertin. "Most of us gravitated toward poverty law and civil rights because those were the career opportunities that were available." The increasing number of female lawyers, however, was fostering a demand for a specialty in women's rights law. At the same time, the growing women's movement was creating an awareness of the need for more attention to women's legal rights. "Very soon after women started coming into the profession in significant numbers," Babcock says, "they demanded that the law schools teach courses on women and the law and sex-discrimination law." Jobs, though, are still not widely available. "It will never make the newspapers under the heading Career Options for Local Activists,'" says Kolbert with a laugh. And Bertin adds, "It would be hard to find a job where you could be less well compensated. Women's rights lawyers don't seek financial success."

Many feminist lawyers were activists first and feminists second. Bertin, Gallagher, Taub and Kolbert, for instance, embraced feminism gradually. Taub says her own views crystallized in 1969 while she was working on a challenge to a criminal abortion statute in New Jersey. "In the process of putting on paper why control over the reproduction was crucial for women, I really began to perceive all the ways women were confined and punished because of their reproductive functions," she recalls. Bertin's and Kolbert's feminism evolved out of their work in poverty law. For Gallagher, joining a convent presaged her feminism. "I had an alternative model available to me of women who were taking a different route," she says. These days, women in general are coming to feminism later in their lives, Kolbert observes. "It used to be that we got involved as students. Now women come to their interest in these issues when they're having children or when they suffer the first forms of discrimination on the job."

Job discrimination, in fact, still forms a large part of the practice of women's rights lawyers. But in the feminist legal arena of 1988, the unifying theme is reproductive rights, an area that encompasses issues as diverse as abortion, employment rights during pregnancy, surrogate motherhood and in vitro fertilization. "We have had a transformed experience of pregnancy and birth and child rearing," says Gallagher. "The contest, symbolic and real, over a woman's role is focused in the reproductive-rights area now. It's the most highly charged battleground because it affects women enormously in thousands of different ways." It's also a legal minefield. How do you create laws that both affirm the equality of women and account for the differences of women?

Taub recalls discussing these issues with a colleague at Rutgers in 1985 and expressing concern that the viewpoints of women who were directly affected were not included in the momentous decisions being reached. That discussion led to a grant from Rutgers to develop a project exploring reproductive issues. The result is Reproductive Laws for the 1990s, a three-year project launched in 1986 with about $250,000 in funding from the Ford Foundation and other organizations. The goal is to develop policy proposals in such areas as third-party reproduction (artificial insemination and surrogate motherhood), reproductive hazards in the workplace and interference with reproductive choices. The intention, says Taub, the project director, is to make women full participants in the debate on these issues by including them in the development of policy proposals for the '90s.

Women's rights lawyers characteristically cast a judicious eye on their success. "The victories aren't always the victories you want," says Bertin. "When you win there is always more work to be done." Moreover, some lawyers fear that the next few years may call for holding the line on rights won rather than expanding rights. And true equality, they believe, will take time. "We grew up in the television age," says Kolbert. "We think things are going to change overnight, and they don't. Unfortunately, real equality is going to be a long struggle."

But lawyers like Taub acknowledge that progress for women has indeed been made over the years. For one thing, a public consensus has developed behind sexual equality. Last year's resounding defeat of the nomination of Robert Bork to the Supreme Court is a case in point. "Bork's defeat," says Gallagher, "was a significant recognition of people's unwillingness to retreat from the move toward equality." These lawyers express cautious optimism. "Twenty years ago the notion that we should be equal was not within our society," Kolbert says. "Today, it's a given. It's just a question of how to get there."