Property
RITES

Women's legal estate has changed in the last century, but many of our attitudes and institutions have yet to catch up

Copyright ©1996 by Sara Paretsky

On Sunday, June 18, 1860, two doctors and the sheriff of Kankakee County broke into Elizabeth Packard's bedroom as she was dressing. Seizing her wrists, the doctors found her pulse tumultuous — confirmation of the insanity that her husband had reported. The sheriff was there to allow the husband, the Rev. Theophilus Packard, to carry her off to a state mental hospital in Jacksonville, where she was kept for three years.

What led Theophilus Packard to believe that his wife was insane? She had for some years been doubting the Calvinist doctrine of total depravity, which was the cornerstone of Packard's faith. On top of that, she believed her own judgment of the meaning of the Scripture was equal to his: She would not subordinate herself to him, at least in matters of doctrine. The director of the hospital, and a number of church members, agreed that Elizabeth's doctrinal lapses were signs of mental illness, as was her refusal to submit to her husband's authority.

English common law — accepted implicitly or explicitly by American states — held that "husband and wife were one body, with the husband the head." The state invested power in the man to control his family just as the government controlled the nation. In fact, Sir William

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Blackstone's commentaries explained that when a woman killed her husband, it was an act of treason not murder, and she had to suffer the death of traitors: being burned at the stake. A wife who didn't submit fully to her husband's authority was essentially committing an insurrection.

Illinois law in the 1860s reflected this outlook in myriad ways, including giving husbands the right to incarcerate their wives in mental hospitals. Elizabeth Packard had no legal standing to protest her husband's treatment of her.

In 1863 she was released to Packard's custody, on the grounds that her insanity was incurable: In three years of incarceration she refused to recant her beliefs. Packard locked her in her bedroom and deprived her of her clothes, although it was the middle of the winter, to keep her under his control. Elizabeth Packard somehow managed to keep her wits about her in a situation that would have tested the mental health of the strongest. She also managed to smuggle a message to a male neighbor, who came to her rescue and organized a legal hearing for her. The Kankakee County courts ruled in favor of Elizabeth Packard's sanity later that year. She separated from her husband (whom she never divorced) and spent the rest of her life writing and lobbying to overturn mental health laws that discriminated against women.

Women's estate has changed dramatically in the years since Packard v. Packard electrified Kankakee. We vote (since 1920), own property (since 1874 in Illinois), serve on juries, buy and sell houses in our own names, make our own wills, keep our own earnings, decide — if we have access to appropriate gynecological care — when and whether to bear children (since 1973). And we can serve as our children's legal guardians.

All these actions of everyday life were denied women a century ago. The law sanctioned wife beating. It denied married women property ownership, and it did not allow them custody of their own children in the case of divorce or death of a spouse. All of these laws operated under the tacit social and legal convention that considered women to be property, first of their fathers, and then of their husbands. (Women who never married had some legal rights, such as property ownership, which were not available to married women.)

The most important aspect of owning women was the ownership, or control, of their sexuality. Controlling sexuality gave men effective decision-making in women's fertility. It subordinated women to the demands of maternity. It made women sexually available on demand to their partners. And it demonized female sexuality: Women had to be controlled because their sexual impulses might destroy men, much as Eve had destroyed Adam.

The idea of women as property seems repulsive to us today; yet that was Western women's condition for more than three thousand years. The changes to women's legal status during the last century are dramatic, even revolutionary. Laws changed faster than many social institutions, or our unconscious attitudes about women and men together. Our ability to relate to one another as equal adults has not wholly caught up with the change in women's legal status.

In particular, when the state looks at issues of sexuality, of pregnancy and of welfare, it sees these as women's questions, separate from problems that affect men, or society as a whole. And public policy debates on such matters continue to see women as other, separate, and in the end inferior, unable to make important decisions on their own. We have moved a long way from Elizabeth Packard — but we are still close to her. I want to look at the way in which public discourse on abortion and welfare is driven by these old attitudes.

My reflections began with my work as an escort at a Chicago obstetrics clinic where the doctor also performed abortions. I was trying to protect women patients — who included cancer sufferers, women looking forward to the birth of a baby and women seeking abortions — from a group of protestors. All but one of the protes-

A challenge for Illinois: Shaping the future

This essay is part of a special series launched by the magazine in 1994. The premise of the series is that our major institutions have an inadequate understanding of the profound changes that are challenging today's leaders. Consequently, our institutions are not addressing current issues effectively and seem incapable of considering our future creatively. Illinois Issues asked a group of distinguished Illinois leaders and thinkers to address, within their areas of expertise, the ways in which this problem is reflected in our major institutions. Those institutions include business, education, philanthropy, the law, organized religion and the family. Noted historian Douglas Wilson of Knox College in Galesburg contributed the first essay. He provided perspective on the ways we misread the past. Other writers have included William Clossey, John E. Corbally, Martin Marty and Nancy Stevenson. Several essays in this series — including this one by Sara Paretsky — have been funded by the Illinois Humanities Council. The Editors

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tors were men. They kicked us, bit us, yelled insults at women entering the clinic, and even, on one memorable day, used a car to try to run over a security guard. They told us that they were Catholic seminarians. They knew pregnancy would not ever be an issue in their lives: They would not become pregnant, and they had no intention of ever having sex with women. But they were there, the ringleader told me, "to make sure these girls have help in living their lives right."

His statement — "to make sure girls have help in living their lives right" — and the man's concomitant harassment are a clear residue of our own millennia with women as male property. This seminarian, who was himself so young he wasn't yet shaving, did not see women going into a clinic; he saw girls.

A girl is a child. Most cultures, in most times, have viewed women not as full, legal adults but as a cross between children and chattel animals. This view so pervades our own culture that many educated, otherwise empathic people cannot understand why women object to being called girls.

And "girls" need to be told how to live their lives right. They are not sophisticated enough to make difficult moral choices unless they are told how. The historic precedent for woman as child — as girl — has been backed in our culture by both science and religion. That makes it hard for us to think of women as adults.

Many religious groups continue today to preach women's God-ordained second-class status. Southern Baptists — one of America's largest denominations — declared in 1984 that since Eve initiated sin in the Garden of Eden, women should forever be subject to men. The denomination began then to cut off funds from member congregations where women preached or served as deacons. One of the books at Liberty Baptist Church, the Rev. Jerry Falwell's congregation, shows an organization chart that depicts human relations with God: From God at the top the lines of authority descend to the local church, then to the father, who in turn is in charge of the mother and children. The chart is called "God's chain of command."

Scientific discourse, too, continues to be plagued by discussions about innate differences between the sexes as reflected in brain function. "Through natural selection," Charles Darwin explained in The Descent of Man, "man [became] superior to woman in ... intellect and inventive genius, and thus inevitably excel[led] in art, science, and philosophy. Those faculties in which woman has the edge — intuition, perception, and imitation — are actually signs of inferiority. ..."

Darwin's ideas about the differences between the sexes are echoed today in neurobiological research into the differences between male and female brains, and the relative importance of the dominance of the right hemisphere (in females) and the left hemisphere (in males). Serious research takes place in which biologists try to show that right-brain function, which provides intuition, perception and imitation, is less important neurobiologically than left-brain.

Of course, many religious organizations and many scientists do not support hierarchical, comparative relations between men and women. But many, from the Pope to scholar Carol Gilligan, continue to chew over whether women have a separate, special way of thinking and acting that separates them from males. The fact that we devote so much time and research to these differences shows the pervasiveness of millennia-old ideas on women's necessary subordination.

Much public policy debate as it affects women, especially pregnant women and poor mothers, reflects the attitude that women are children who need to be protected by a paternal state that understands their needs better than they can possibly do on their own. Because minor women and poor women have the least power, the fewest options, state control is most often exercised upon them.

'Girls' need to be told how to live their lives right. They are not sophisticated enough to make hard moral choices.

Poor women must go through intense legal and medical scrutiny before the state will support their decision to terminate a pregnancy. When the Hyde Amendment took force in Illinois in 1980, the state assumed the right to decide for poor women whether they really "need" to terminate an unwanted pregnancy. Illinois has concluded that an average of 15 Medicaid recipients a year really need abortions.

To give some context for these numbers, in Cook County alone, the county hospital gets about 1,600 calls a year from poor women seeking abortions. The Illinois legislature would say that these 1,600 women could not make that decision, that only the state can. The state would deny the procedure to all but a handful. Through county funds, Cook County Hospital can meet the needs of about a fifth of these women. The rest must carry unwanted pregnancies to term, but they are still better off than poor women outside Cook County, who must hope to be one of the chosen handful to receive Medicaid abortions. (Late in 1992, Cook County Hospital resumed abortion services to poor women. This came after a decade's moratorium that began with the expulsion from the hospital of women lying prepped on operating tables.)

The state tries to make it hard for other women, especially minors, to obtain abortions. The legislature has tried many times to implement laws controlling minor females' access to abortions. A peculiarity in the Illinois Constitution makes it hard to keep such laws on the books because the U.S. Supreme Court has said that parental consent laws have to have a judicial bypass clause. In Illinois, these judicial rules are written by the state Supreme Court. Since the present court has been unwilling to create such rules, Illinois does not have a working law. The legislature continues to try to create one.

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The legislators' concern sounds admirable on the surface: They want to preserve family values. Because abortion could have serious consequences for a young woman's future, she should not be allowed to make that decision on her own. Legislators want to force minor females (not males) to report unwanted pregnancies to their parents, and make sure that parents are involved in this most important decision affecting their daughters. Their daughters only, not their sons. Sons do not have to report efforts to make people pregnant to their parents. And, in fact, at least half of pregnancies among minor females are created by men who are full-fledged adults in the eyes of the law as well as any casual passerby. The state does not profess an interest in the behavior of these men, only in the teenage females whom they impregnate.

Legislators ignore the fact that childbirth also has serious consequences for a teenager's future. According to the Alan Guttmacher Institute, a woman who becomes a teenage parent will average half the lifetime earning ability of her peers who don't become mothers. A woman who becomes a mother as a teenager will be much less likely to finish school, more likely to have a large family and more likely to live in the bottom-most tier of the poor.

An Illinois teenager does not need parental consent to drop out of school. She does not need parental consent to receive prenatal care, to get treated for sexually transmitted diseases — or to give an infant up for adoption. All of these actions have far more serious consequences for her future than would an abortion. It is only abortion that Illinois lawmakers keep trying to put into a separate category.

In other words, the state wishes to make sure parental authority exists as a way to control daughters, not sons. The legislators are frightened at the possible evasion of parental authority by minor daughters; they want the state to stand in loco parentis to make sure that the most intimate family relations are conducted on the old model, the female as property model. In this model a 14-year-old is too immature to decide on her own to have an abortion. She is, however, mature enough — physically, psychologically and economically — to undertake the most important activity of human life: being a parent. (Seventy percent of 14-year-olds who become pregnant do so because of "nonconsensual" sex — rape or incest. In such cases, parental consent becomes a ludicrous concept.)

And if she — or any woman — should become a parent, but not be capable of supporting her child, what then? The state takes on the support of mother and child through the welfare system. And one of the fiercest topics of current public discourse — next to abortion — has to do with the welfare system. As is the case with abortion, no public policy action is directed at men who beget children and leave them without support: All debate centers on women. Or rather, what the state should decide to do with women.

Women on welfare are not adults with the ability to make adult decisions in the eyes of legislators. Indeed, they are not even human: The Republicans in the U.S. Congress characterized them variously as "alligators," "cats" and "wolves" during public debates last winter. And legislative commitment to "family values" takes a surprising turn when the subject is women on welfare. Indeed, our society has a schizophrenic view of women who work.

Women who work outside the home are blamed for social ills. Yet if they are poor, they belong in the work force.

Women who work outside the home are often blamed for a variety of social and economic ills. During the 1982-83 recession, President Ronald Reagan spoke on causes of the economic downturn. "Part of the unemployment is not as much recession," he said, "... [but] — ladies, I'm not picking on anyone — because of the increase in women who are working today." Patrick Buchanan reiterated this theme in 1992. Writing in 1995 in The Wall Street Journal, West Virginia Chief Justice Richard Neely said, "West Virginia has the lowest crime rate in the U.S. Our secret is that we have America's lowest female labor force participation rate."

But as soon as women become poor, they belong in the work force. Our Illinois legislators agree with Congress that after two years of public aid, women should be dropped from the rolls and go to work. They do not need to be home with their children.

Middle-class women who work do irreparable damage to their children in the eyes of many conservative critics. (The head of the U.S. Marine Corps during Reagan's presidency blamed working mothers for destroying the fighting spirit of young men!) Yet these same social commentators think poor women should abandon their children for the workplace — and that they should do so without either health care or day care.

What this inconsistency really tells us is that in the debate over women, welfare and work has nothing to do with economic or social issues, and everything to do with the desire to control women to whatever extent possible. If they are middle class and working, send them home. If they're home on welfare, send them to work. But for heaven's sake, don't assume that they have the rational adult capacity to make these decisions for themselves.

The current welfare system certainly is in urgent need of reform. It splinters families, and keeps women and children in a depressingly necessitous state. It humiliates the poor through its multiple bureaucracies, which also are needlessly expensive.

But neither the current system nor its proposed reforms treat women as rational adults. In Illinois we will not allow a Medicaid recipient to terminate an unwanted pregnancy, except in a few, closely examined cases. We now want to move her to a system where she forfeits her benefits if she becomes pregnant while on welfare. Furthermore, we want to demand that she go

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to work, leaving her children without care, after two years of welfare. So we will not help her avoid or terminate pregnancies, but we will not support her children either.

Another joker in the work-welfare deck that policy-makers ignore is the role domestic violence plays in keeping women away from jobs. A February 1995 report in the Chicago Tribune showed that male partners of poor women can resent the marginal success a woman achieves by finding work. They show this resentment in a variety of cruel, controlling ways: They may physically confine their partners to the home — as the Rev. Packard did to his wife 130 years ago — or beat them so badly that they cannot work. A study at Northwestern University— designed to see whether poor women needed more child care or better transportation to keep them from missing workdays — found instead that domestic violence was the leading cause of poor job attendance. Abusive behavior ranged from outright violence so extreme it kept women from coming to work, to harassment on the job through phone calls, stalking and other disorienting acts.

In the last two decades we have finally come to condemn domestic violence both in law, and by public outcry. Women in abusive situations have more chance of being heard, and more avenues for flight. But abuse is still a significant problem for many women, and it needs to be addressed seriously in any discussion of welfare reform. A 1995 report by the Chicago Department of Health found that almost half the women using city clinics had been abused at least once in their lives, that 10 percent had been abused within the previous month, and over a quarter within the previous year. Women visiting these clinics are on welfare: They are the population that will have to find jobs, and get to jobs, in the version of welfare reform most often discussed both nationally and locally. Domestic violence is one of the serious obstacles to their ability to work. (Lack of education and lack of child care are two other serious barriers.)

Forty of the 50 states currently cannot provide jobs that people on welfare — with limited education and limited access to transportation — can do. Programs that have successfully brought women from welfare into highly skilled jobs, such as the Midwest Women's Center program to train and place women in the skilled trades, will be shut down under proposed congressional guidelines.

Welfare, contraception, child care and domestic violence are such tightly connected problems that we should be addressing them all in one discussion. Instead, we treat them separately. We think of women on welfare who have children as "cats," "alligators" and "wolves" — that is, as less than human, out of control, not able to make decisions on their own. Yet most women, and most pregnant teen women, would prefer not to enter a cycle of childbearing and poverty. Almost 80 percent of poor teenagers use contraceptives on a regular basis, but most rely on condoms because they don't have access to, or can't afford more effective contraceptives. About half of poor pregnant teenagers have abortions; more would if they had access to them.

If we are going to address welfare reform seriously in Illinois, then we need to make easy access to contraception and abortion services a cornerstone of our policy. Legislative and religious opposition to abortion in this state makes that an unlikely event. At the national level, funding for Title X family planning clinics has dropped by about 70 percent in the last decade, and the state has not shown an interest in making up the shortfall.

Currently our social effort to control women is accompanied by the total absence of restraint on men. We pay lip service to the notion that men should support their children — instead of abandoning them to the welfare system — but all our public policy is directed at controlling women. It is still the case that the behavior of rape victims, and battering victims, affects their treatment by the judicial system. Although Illinois now has laws to protect women from battering and stalking, their enforcement is haphazard, and few jurisdictions are willing to implement them in a meaningful way. The attitude of many — in society as well as law enforcement — is summed up by the 14-year-old son of a battered woman when he said, "None of this would have happened if she had acted right."

It is most instructive that the Religious Right says of women who choose contraceptives or abortions that they are "playing God." What they mean is that women are insisting that they can choose their own destiny, that they are not the subordinated recipients of God's power as mediated through a man.

In every important arena of public policy on private issues — abortion, rape, domestic violence, welfare — women are expected to act right: to talk nice, not to be strident, or they will alienate women as well as men. Not to drink or swear or dress provocatively, or they will be blamed for rape. Not to "play God" with their bodies. Not to talk back to a man or he will beat her up.

We will never have a meaningful welfare system, or a rational public climate on the decision whether and when to bear children, or an effective response to rape and domestic violence, until we see women as full adults. It is time we acknowledged that — however much our laws have changed since Elizabeth Packard's hospitalization — many of our attitudes and institutions still reflect a belief in women as children. As Illinois gets ready to overhaul its welfare system, instead of looking at women as uncontrolled animals, the legislature should look at them as people. Sane public policy debate will surely flow from that.

Like fellow Chicagoan Nelson Algren, Sara Paretsky is a meticulous chronicler of the lives of people on society's margins. Her eight V. I. Warshawski novels, including her most recent New York Times bestsellers, Guardian Angel and Tunnel Vision, draw on experience as varied as community service for the Presbytery of Chicago and high-level financial management. The recipient of numerous awards, including the 1996 Mark Twain Award for "distinguished contributions to Midwestern Literature," Ms. Paretsky has worked to support other writers. In 1986 she helped found Sisters in Crime to aid other women in finding their writing voices. Women on the Case, a collection of short stories she edited, was published this month. Thanks to JoAnne Willis for special research assistance on this project.

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