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“The Reasonable (Wo)man”: Physicians, Freedom of Contract, and Women's Rights, 1870–1930

Published online by Cambridge University Press:  27 December 2018

Lauren Macivor Thompson
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Abstract

This article examines how ideals of contract freedom within the women's rights movement challenged medical and medical jurisprudence theories about women between 1870 and 1930. Throughout this period, medicine linked women's intellectual incapacity with problems rooted in their physical bodies. Doctors opined that reproductive diseases and conditions of pregnancy, childbirth, menstruation, and menopause rendered women disabled, irrational, and inherently dependent. Yet at the same moment, the elimination of the legal disability of coverture, and new laws that expanded women's property and earnings rights contributed to changing perceptions of women's public roles. Courts applied far more liberal understandings of sanity and rationality in property and contract cases, even when the legal actors were women. Seizing this opportunity, reformers made powerful arguments against doctors' ideas of women's “natural” mental weakness, pointing out that the growing rights to contract and transact illustrated women's rationalism and competency for full citizenship. Most significantly, these activists insisted that these rights indicated women's right to total bodily freedom—a concept that would become crucially important in the early birth control movement.

Type
Original Article
Information
Law and History Review , Volume 36 , Issue 4 , November 2018 , pp. 771 - 809
Copyright
Copyright © the American Society for Legal History, Inc. 2018 

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Footnotes

She thanks Law and History Review's anonymous reviewers for constructive comments and suggestions. She also extends special thanks to Paul Lombardo, H. Robert Baker, Wendy Venet, and Gautham Rao, and participants of the 2013 Institute for Constitutional History at Stanford Law School for their comments.

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103. “Women Suffragist Called ‘Hysterical,’ Say Dr. Baff Is to Laugh.” Clipping, dated 1913. Mary Ware Dennett Papers, 1874–1944, Schlesinger Library, Harvard University, Microfilm Collection M-138, Part B.

104. Baynton, “Disability and the Justification of Inequality,” 39–40.

105. Welke, Law and The Borders of Belonging, 24. See also Newman, Louise Michele, White Women's Rights: The Racial Origins of Feminism in the United States (Oxford: Oxford University Press, 1999)Google Scholar; and Tetrault, Lisa, The Myth of Seneca Falls: Memory and the Women's Suffrage Movement, 1848–1898 (Chapel Hill, NC: University of North Carolina, 2014)Google Scholar.

106. Suffrage speech, undated, Susan Francis Brooks Papers, Filson Historical Society. In another, similar appeal, suffragist Judith Hyams Douglas wrote, “There is only one thing that can make me see the justness of woman being classed with the idiot, the insane, and the criminal, and that thing is, if woman is willing if she is satisfied to be so classed.” Judith Hyams Douglas, “Women and Ancient Custom,” Political Equality Series IV (Warren, OH: National American Woman Suffrage Association, undated), Madeline McDowell Breckinridge Papers, Special Collections, University of Kentucky.

107. Baynton, “Disability and the Justification of Inquality,” 44. Legal historian Rabia Belt has demonstrated in more detail how women suffragists participated in the making of an antidisability regime. Rabia Belt, “Outcasts from the Vote: Woman Suffrage and Disability” (working paper, Stanford Law School, 2018). Cited with permission of the author.

108. Tomlinson, Annie, “The New Woman and the Marriage Problem,” The Woman's Journal 27 (1896): 281–82Google Scholar.

109. A Florence Yerger Hagan, “Independent Citizenship for Married Women” undated report, Catharine Waugh McCullough Papers, Schlesinger Library, Harvard University.

110. “Women Suffragist Called ‘Hysterical,’ Say Dr. Baff Is to Laugh.” Clipping, dated 1913. Mary Ware Dennett Papers, Schlesinger Library.

111. Braude, Radical Spirits, 121. See also Passet, Joanne Ellen, Sex Radicals and the Quest for Women's Equality (Urbana, IL: University of Illinois Press, 2003)Google Scholar.

112. Braude, Radical Spirits, 128.

113. Quoted in McGarry, Ghosts of Futures Past, 58.

114. Quoted in Tumber, Catherine, American Feminism and the Birth of New Age Spirituality: Searching for the Higher Self, 1875–1915 (Washington, DC: Rowman & Littlefield, 2002), 44Google Scholar.

115. Quoted in ibid., 171.

116. On the social purity movement, see David J. Pivar, Purity Crusade: Sexual Morality and Social Control, 1868–1900 (Westport, CT: Greenwood Press, 1973). On the relationship between social purity and voluntary motherhood, see Gordon, Linda, The Moral Property of Women: A History of Birth Control Politics in America (Urbana, IL: University of Illinois Press, 2002), 72–85Google Scholar.

117. Some late nineteenth-century sex radicals including Kansas socialist Moses Harman equated the state of marital law for women to state-sanctioned sexual violence. In his widely read anarchist newspaper, he editorialized, “I oppose marriage because marriage legalizes rape.” Lucifer the Light-Bearer, April 7, 1897, 107.

118. “Report of the Corresponding Secretary,” Equity Club Annual (1888), Mary Earhart Dillon Collection, Schlesinger Library. Quoted in Drachman, Women Lawyers, 85. In the late nineteenth century, Pearce and others who highlighted this issue were not necessarily supporting the use of contraception. As Linda Gordon points out, it is unsurprising that women—even sex radicals—did not initially support contraception because “legal, efficient birth control would have increased men's freedom to indulge in extramarital sex without greatly increasing women's freedom to do so even had they wanted to.” Gordon, Moral Property, 67.

119. Quoted in Stanley, From Bondage to Contract, 185.

120. Hartog, Man and Wife in America, 85.

121. Mary Ware Dennett established the first birth control organization in the United States, known as the National Birth Control League (later renamed the Voluntary Parenthood League) in 1915. There has been one full-length, popular biography on Dennett. See Chen, Constance M., The Sex Side of Life: Mary Ware Dennett's Pioneering Battle for Birth Control and Sex Education (New York: New Press, 1997)Google Scholar. Most of the scholarly work on Dennett to date has focused on the legal history and ramifications of her obscenity case, after she was charged with violating the Comstock Act for distributing her sex education booklet, The Sex Side of Life: An Explanation for Young People. See Craig, John M., “‘The Sex Side of Life’: The Obscenity Case of Mary Ware Dennett,” Frontiers: A Journal of Women Studies 15 (1995): 145–66CrossRefGoogle Scholar; and Weinrib, Laura M., “The Sex Side of Civil Liberties: United States v. Dennett and the Changing Face of Free Speech,” Law and History Review 30 (2012): 325–86CrossRefGoogle Scholar.

122. Dennett, Mary Ware, Birth Control Laws, Shall We Keep Them, Change Them, or Abolish Them (New York: F. H. Hitchcock, 1926), 246Google Scholar.

123. “An Endorsement of Voluntary Parenthood—Voluntary Parenthood League,” Pamphlet, Madeline McDowell Breckinridge Papers, Special Collections, University of Kentucky.

124. Birth Control Review, February 1917, 4.

125. Birth Control Review, October 1919, 14–15.

126. “An Endorsement of Voluntary Parenthood—Voluntary Parenthood League.” By the 1930s, Dennett and Sanger's disagreement over the “doctors-only” bill would cause a nearly unbridgeable rift between the two women. Dennett would later retire from her birth control work to pursue other causes, writing to Sanger, ““Birth control has been your whole career; it has been only an incident in mine.” Mary Ware Dennett to Margaret Sanger, February 15, 1930, Mary Ware Dennett Additional Papers, 1892–1945; MC 629, Schlesinger Library, Harvard University.

127. Dennett, Birth Control Laws, 239.

128. Holmes, The Common Law, 51.

129. See McRee, Fred W., ed., Oglethorpe County, Georgia Inferior and Ordinary Court Records, 1794–1920, Volume I (Dahlonega, GA: The Author, 2011), 393–408Google Scholar.

130. See Elston v. Jasper 45 Texas 409 (1876); Philip F. Scanlan v. Thomas Cobb, Guardian 85 Ill. 296 (1877); McNett v. Cooper 13 F. 586 U.S. App (1882); Farnsworth v. Noffsinger 46 West Virginia 410 (1899); Anna Uecker v. John Zuercher 54 Texas Civ. App. 289 (1909); Miranda C. Rogers, an Incompetent Person by Robert S. Ewing, Her Guardian v. Linda Scott et al. 28 California App. 93; 151 P. 379 (1915); Adolph Achatz et al. v. Fred A. Bailey 108 Ne. 272 (1922); and Farmers National Life Insurance Company of America v. Ed Ryg and A.O. Hauge 209 Iowa 330 (1929).

131. See Mahoney v. Goepper 8 Ohio Dec. Reprint 33 (1881); Hanley v. National Loan & Investment Co. 44 West Virginia. 450 (1898); Birdsall v. Leavitt 32 Utah 136 (1907); Floyd County, Iowa v. Ernestina Wolfe, Insane, and Robert Eggert, her guardian 138 Iowa 749 (1908); Jordan v. Kirkpatrick 159 Illinois App. 231 (1911); and Herbert Gates v. Ernest H. Williams 101 New Jersey Eq. 232 (1927).  In the case of In the Matter of Harriet E. Beach, an Alleged Incompetent Person—Frederick C. Beach and Jennie Beach Gasper v. Harriet E. Beach and Henry R. Rogers 48 New York 437 (1897), Harriet Beach's children's petition to have a commission investigate her competency to manager her affairs was granted. One case was inconclusive as to the woman's sanity during the making of the contract and ordered a new trial. See William C. Boschen, as Committee of the Person and Property of Julia B. Bryant, an Incompetent Person v. Ulysses G. Stockwell 224 New York 356 (1918).

132. See William J. Slais v. Mary Slais 9 Missouri App. 96 (1880); William Gerhold v. Josephine Wyss 13 Nebraska 90; (1882); John Merritt Lewis v. Ella E. Lewis 44 Minnesota 124 (1890); J.H. Lohner v. N.J. Coldwell 15 Texas. Civ. App. 444 (1897); Smith v. Smith 131 Alabama 590 (1904); Hempel v. Hempel 174 Wisconsin 332 (1921); Kuehne v. Kuehne 185 Wisconsin 195 (1924), Robertson v. Roth 163 Minnesota 501 (1925); MacMillan v. Carlton 121 Kansas 797 (1926); and Behrmann v. Behrmann 110 Connecticut 443 (1930). In two cases, the court ruled in favor of the husband and granted his request for a divorce or annulment. See George C. Chapline v. Isaac B. Stone 77 Missouri App. 523 (1898); and Vincent v. Le Doux 146 Louisiana 144 (1919).

133. See Steinkuehler et al. v. Wempner et al. 169 Indiana 154; (1907); and Barr et al. v. Sumner et al. 183 Indiana 402 (1915).

134. See Mary A. Robinson v. Francis Adams and another, Executors 62 Maine 369 (1870); George S. Brown v. William H. Ward, William A. Fisher and Bernard Carter, Executors of Jane Bay 53 Maryland 376 (1880); In the Matter of the Estate of Mary C. Spencer, Deceased 96 California 448 (1892); Succession of Elizabeth Bey 46 Louisiana 773 (1894); Miranda J. McClary et al. v. John S. Stull et al. 44 Nebraska 175 (1895); Matter of the Will of Martha B. Halbert, Deceased 37 New York 757 (1895); Frank Schoch et al. v. Julius Schoch et al. 6 Ohio 110 (1905); Hanson v. Rhodes 87 Wash. 113 (1915); Masterson et al. v. Sheahan et al. 524 Missouri (1916); Vineland Trust Company v. Katharine Westendorf and Helen Campbell et al. 86 New Jersey 343 (1916); Laura B. Mecutchen v. Winter Gigous et al., Executors 150 Maryland 79 (1926); and In re Saunder's Estate 235 Michigan 342 (1926).

135. See Charles Orchardson v. Amelia T. Cofield et al. 171 Illinois 14 (1897); Irwin et al. v. Lattin 29 South Dakota 1 (1912); In the Matter of the Estate of Dorothy Drury Siebs—George W. Drury v. Jennie D. Moulton et al. 70 Washington 374 (1912); and Nalty's Administrators v. Franzman's Executor 221 Kentucky 709 (1927).