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
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
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
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
Roe decision 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
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
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 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."