After World War II, women’s struggle for equality achieved a mixed record of success. The women’s rights movement won equal opportunities in higher education and employment relatively quickly in the 1940s and 1950s. The modern concept of women’s equality as “feminism” appeared in the 1960s, led by activists such as Betty Friedan. Some of its victories in the legislative arena were completely inadvertent, while one of its grandest objects and subject of its greatest efforts resulted in defeat. Moreover, the movement was dominated by an intellectual and professional leadership at some distance from ordinary women. Despite the vagaries of the movement, it was remarkably successful in fundamentally changing society and women’s roles as well as attitudes towards women.
World War II was instrumental in the origins of the Women’s Movement. The classic image of “Rosie the Riveter” reflected the fact that millions of women went into factories when men were mobilized into the military. However, many unmarried and poor women had already participated in the industrial economy for a century. With demobilization after the war, more than three million women quit their jobs to return to their roles as homemakers or were let go to make room for returning men.
There was a lingering split from the 1920s between future First Lady, Eleanor Roosevelt, and feminist leader of the National Women’s Party, Alice Paul. Roosevelt fought to keep protective legislation for women in terms of working hours or physical tasks, and Paul wanted an Equal Rights Amendment (ERA) that made women completely equal under the law. Paul was so frustrated by the lack of progress on the ERA that she resorted to “red-baiting” by labeling its opponents Communists and reporting them to the House Un-American Activities Committee.
Post-war American culture was rather conservative and supported traditional roles for women. The images of women as mothers and homemakers on the new media of television were quite reflective of the reality for many suburban women. The marriage rate was increasing, a Baby Boom resulted in more than 76 million births between 1946 and 1964, and the divorce rate dropped. The American people supported traditional roles for women, and as one post-war poll noted, 63 percent were opposed to married women working outside the home.
In 1963, feminist author Betty Friedan wrote a path-breaking book, The Feminine Mystique that challenged traditional roles for women.
She described the sense of dissatisfaction that many women felt as “the problem with no name” and wrote, “The problem lay buried, unspoken, for many years in the minds of American women. It was a strange stirring, a sense of dissatisfaction…Each suburban wife struggled with it alone. As she made the beds, shopped for groceries, matched slipcover material, ate peanut butter sandwiches with her children, chauffeured Cub Scouts and Brownies, lay besides her husband at night – she was afraid to ask even of herself the silent question – ‘Is this all?’” (Friedan, The Feminine Mystique, 1963).
Friedan’s book was a best-seller and struck a chord with many women, particularly of her social class. But, some women were poorer and did not have the luxury of choosing whether to work or not because necessity forced them into the workplace. Other women did not share Friedan’s dislike of women’s traditional roles as mother and housewife.
In the early 1960s, many changes were developing for women’s equality in employment and education. By 1960, the number of working women had risen to 35 percent of the workforce with increasing numbers of married women. This probably reflected the fact that many families wanted the extra disposable income to participate in the growing consumer economy more than an increasing desire of women to find personal satisfaction from working. Women were attending higher education in higher numbers, earning nearly 40 percent of the degrees by 1960 and the numbers would continue to grow. In May, 1960, the Food and Drug Administration approved the oral contraceptive, “the Pill,” for women, and millions of women were soon using it for birth control despite the fact that many states outlawed contraceptives. The Pill changed the sexual lives of women throughout the nation. Women’s careers would not be shortened by unanticipated pregnancies, and women would have fewer children.
The Pill became involved in constitutional issues when the Supreme Court took up the question. In 1965, the Supreme Court would overturn anti-contraception laws in Griswold v. Connecticut, arguing that the “penumbras” in the Bill of Rights—in the First, Third, Fourth, and Fifth Amendments—create “zones of privacy.” Moreover, the majority also used the Due Process Clause of the Fourteenth Amendment to argue that there are “certain fundamental rights” not listed in the Bill of Rights as the Ninth Amendment specifically recognizes. But, should the courts lay down new rights in decisions or should the people be the ones who would define those rights through the amendment process? Moreover, the Fourteenth Amendment explicitly states that, “The Congress shall have power to enforce, by appropriate legislation, the provisions of this article,” not the courts (The United States Constitution, Fourteenth Amendment, 1866). By overturning the anti-contraceptive laws of a vast majority of states, the Supreme Court undermined the rights of states to determine laws for their own citizens.
The Pill became involved in constitutional issues when the Supreme Court took up the question. In 1965, the Supreme Court would overturn anti-contraception laws in Griswold v. Connecticut, arguing that the “penumbras” in the Bill of Rights – in the First, Third, Fourth, and Fifth Amendments – create “zones of privacy.”
Women won legal equality in the Civil Rights Act of 1964. The House Rules Committee Chairman, Howard Smith (D-VA), was a segregationist who may have attempted to halt civil rights for African Americans by including additional rights for women by banning discrimination in employment based on sex—although he claimed he supported women’s equality. To further muddy the waters, many northern liberals and labor unions supported protective legislation for women and opposed the amendments to the Civil Rights act that gave legal protection against discrimination to women. Nevertheless, the Civil Rights Act passed both houses of Congress and was signed by President Johnson to become law. The Act established the Equal Employment Opportunity Commission (EEOC), an executive agency that would be charged with enforcing the law.
In 1966, several feminists formed the National Organization of Women (NOW) and issued a “Statement of Purpose.” The NOW statement was primarily a call for an end to discrimination in education, employment, civil society, and culture. The Statement of Purpose sought to ban discrimination against women with legal and constitutional protections by the government.
It called upon “the power of American law, and the protection guaranteed by the U.S. Constitution to the civil rights of all individuals, must be effectively applied and enforced to isolate and remove patterns of sex discrimination, to ensure equality of opportunity in employment and education, and equality of civil and political rights and responsibilities on behalf of women” (National Organization of Women, “Statement of Purpose,” 1966).
Only a year later, at the second annual NOW conference, the organization called for a “Bill of Rights for Women” that included all the items in the Statement of Purpose and added a call for an Equal Rights Amendment (ERA), publicly-funded daycare centers across the nation, and a repeal of all laws banning abortion. Over the next few years, NOW devoted a great deal of its efforts to lobbying several different federal agencies for enforcing Title VII (part of the Civil Rights Act of 1965 that banned employment discrimination on the basis of race, sex, or national origin), to pressuring Congress to pass the ERA, and expanded its agenda to include other feminist issues such as recognizing that lesbian rights were “a legitimate concern of feminism.”
The struggle for the ERA was the most public and significant battle in the quest for women’s equality. In 1972, both houses of Congress passed the ERA by overwhelming majorities to fulfill the two-thirds requirement for constitutional amendments. The ERA needed three-fourths of the state legislatures to ratify the amendment before 1979 (later extended to 1982) for it to become the law of the land. The proposed amendment was quickly ratified by dozens of states and then stalled, eventually winning ratification in 35 states just short of the necessary 38, and failed.
The struggle for the ERA was the most public and significant battle in the quest for women’s equality. In 1972, both houses of Congress passed the ERA by overwhelming majorities to fulfill the two-thirds requirement for constitutional amendments. The ERA needed three-fourths of the state legislatures to ratify the amendment before 1979 (later extended to 1982) for it to become the law of the land.
The ERA failed in large part due to the strong grassroots campaign called “STOP ERA” at the state and local level, spearheaded by a conservative lawyer and activist, Phyllis Schlafly. Schlafly advanced the view, embraced by many religious conservatives and other Americans, that the ERA would have baleful consequences for women. She said that the constitutional amendment would subject women equally to the military draft, end protections in child custody and divorce proceedings, lead to the decline of the traditional family, support abortion rights, back homosexual rights, and lead to unisex bathrooms. Whether or not it would have contributed these things, Schlafly organized a grass-roots campaign at the local and state level called “Stop ERA” which successfully defeated the ERA.
Feminists supported legalized abortion to protect women’s reproductive rights and the “right to control her own body.” They campaigned to overturn state abortion laws and then pushed cases to the Supreme Court in order to overturn all state laws. In the landmark case of Roe v. Wade (1973), the Supreme Court legalized abortion throughout the country based upon the precedent established in the Griswold decision. The movement to legalize abortion had adopted a lengthy and costly campaign to change abortion laws in the states, but then it shifted its strategy to the courts. Justice Harry Blackmun wrote the majority opinion for the Supreme Court, and much like Justice Roger B. Taney in the Dred Scott decision, sought to use the Court to settle a highly contentious social and political question. To that end, Justice Blackmun spent time at the Mayo Clinic in Minnesota conducting medical and historical research on the topic. In a 7-2 decision, the Court decided that state laws banning abortion were unconstitutional. It created the trimester framework for pregnancy and stated that during the first trimester there was an unlimited right to abortion. After that, the state had a “compelling interest” in “protecting the potentiality of human life” and could regulate abortions though a physician’s approval. In the last trimester, the state could proscribe abortion except for the protection of the life or health of the mother.
In a dissenting opinion, Justice Byron White called the opinion “an exercise of raw judicial power” because, he argued, the Court “fashions and announces a new constitutional right” which overrides laws in a majority of states. “The upshot is that the people and the legislatures of the 50 states are constitutionally disentitled to weigh the [issue],” White wrote (Justice Byron White, Roe v. Wade Dissenting Opinion, 1973).
The Roe decision hardly settled the question in the minds of the American people and set off a decades-long battle in the public square on the highly contentious subject. In Planned Parenthood v. Casey (1992), the Court sowed perhaps more confusion.
The Roe decision hardly settled the question in the minds of the American people and set off a decades-long battle in the public square on the highly contentious subject.
Yet, the Court declared that it must uphold a women’s right to have an abortion because it must always uphold precedent (previous decisions) or the court’s legitimacy would be questioned. However, only a few decades before, it purposefully and famously rejected precedent in the Brown decision that had the effect of overturning Plessy.
The struggle for women’s equality may have lost the battle of the ERA, but it won the war. Affirmative action, or giving preference to certain groups in hiring, for women was highly successful in employment, and women entered the professions in such numbers that it was commonplace. Disparities in pay for the same jobs began to disappear. Affirmative action in college and graduate school admissions was so successful that institutions of higher education had to begin looking for ways to attract more male students. Women entered politics and won higher and higher offices. Most of NOW’s original agenda was achieved, though feminists would still say that the “glass ceiling” for women prevented them from rising to complete parity with men at the highest levels of business or politics.
The women’s movement was on the whole successful in achieving equality for women, and women could now choose whether to have a traditional role or work outside the home professionally. Fifty years after Betty Friedan’s The Feminine Mystique was published, American women continued to debate the meaning of feminism and its relevance to their lives once greater equality and liberty were achieved. While men have shouldered some additional burdens in the home and family, women still have not been released from their traditional roles cooking, cleaning, and caring for children even as they’ve assumed new roles in society. Women have found that although they won greater employment opportunities and equality, they are struggling to “have it all” by bearing the double-burden of traditional roles and work.
Women’s Rights in the Late 20th Century
After World War II, women’s struggle for equality achieved a mixed record of success. The women’s rights movement won equal opportunities in higher education and employment relatively quickly in the 1940s and 1950s. The modern concept of women’s equality as “feminism” appeared in the 1960s, led by activists such as Betty Friedan. Some of its victories in the legislative arena were completely inadvertent, while one of its grandest objects and subject of its greatest efforts resulted in defeat. Moreover, the movement was dominated by an intellectual and professional leadership at some distance from ordinary women. Despite the vagaries of the movement, it was remarkably successful in fundamentally changing society and women’s roles as well as attitudes towards women. In this lesson, students will explore the record of successes, and better understand constitutional principles of privacy and due process.