The Feminist Chronicles, 1953-1993
Part III - The Early Documents
NATIONAL ORGANIZATION FOR WOMEN
THE RIGHT OF A WOMAN TO DETERMINE HER OWN REPRODUCTIVE PROCESS
The following proposals are offered for purposes of discussion by the 1967 NOW Membership Conference.
1. Constitutional Amendment
There is perhaps no more fundamental human right, save the right to life itself, than the right to one's own physical person, a basic part of which is the right to determine whether or not one will give birth to another human being. An egg, a sperm, a zygote or a fetus is not a person or a human being and does not have "rights" as a person or a human being. Whatever "rights" these may have are necessarily because of biological fact completely dependent upon and subordinate to the human bodies which house them.
Constitutional rights are accorded to human beings solely in terms of restrictions on governments. It is the government's interference with the right of women to control their own reproductive process that we are concerned with here. All of the states have laws restricting this right of a woman to her own physical person. New York NOW has urged that that state adopt a constitutional provision prohibiting governmental interference with this right. The following suggested amendment to the United States Constitution would protect this right of women in all the states:
THE RIGHT OF A WOMAN TO PREVENT CONCEPTION AND WITH PROPER MEDICAL SAFEGUARDS TO TERMINATE HER PREGNANCY SHALL NOT BE DENIED OR ABRIDGED BY THE UNITED STATES OR BY ANY STATE.
The effect of this amendment would be to nullify all existing state criminal abortion laws, leaving the question of whether or not to have an abortion a matter for the woman herself, rather than the government, to decide.
2. Revision of State Laws
Criminal abortion laws in 42 states prohibit the performance of abortions unless necessary to save the life of the pregnant woman. In the other eight states - Alabama, California, Colorado, Maryland, Mississippi, New Mexico, North Carolina, and Oregon - and in the District of Columbia, abortions are permitted in certain other additional circumstance, such as where pregnancy results from rape, incest, or where the physical or mental health of the woman is endangered.
Bills to make abortion laws restrictive were introduced in 28 state legislatures in 1967. The Colorado and North Carolina laws, enacted in 1967, are patterned after the American Law Institute's Model Penal Code.
They permit abortions where continuance of the pregnancy would gravely impair the physical or mental health of the woman, the child would be born with grave physical or mental defect, or the pregnancy resulted from rape, incest or other felonious intercourse. (It may be noted that the definition of "human being" in the ALI Model Penal Code criminal homicide provisions is "a person who has been born and is alive.")
In spite of the state criminal abortion laws, it is estimated that between 110,000 and over a million illegal abortions are performed in this country each year, and at least 4 out of 5 of them on married women.
Abortion is not a desirable method of birth control and other means should be made available to everyone who wishes to use them. However, criminal abortion laws clearly have proven to be ineffectual in eliminating the use of abortion as a means of birth control, and have driven women to unskilled practitioners, handicapped doctors in practicing their profession, and have made a mockery of the law.
State criminal abortion laws could, of course, simply be repealed or they could be replaced with statutes which give a pregnant woman a right of civil action against any government official who requires or attempts to require her to have an abortion or who prevents or attempts to prevent her from having an abortion. In other words, the statute would recognize her civil right to determine her own reproductive process by giving her a right to sue the particular agent of the state who deprives or attempts to deprive her of that right.
This kind of civil rights protection giving a right to sue for damages is similar to that provided in one of the post Civil War federal civil rights statutes (42 U.S.C. 1983):
"Every person who, under color of any statute, ordinance, regulation, custom, or usage, of any State or Territory, subjects, or causes to be subjected any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law, suit in equity, or other proper proceeding for redress."
Under such a replacement statute, a doctor would be free to perform an abortion without fear of any criminal prosecution. But if a state or local welfare official tried to force a woman to have (or not have) an abortion, she could sue him for damages or get a court order restraining him from pressuring her or cutting off her welfare funds if she refused to comply with his wishes.
The following is a proposed model state law to prevent governmental interference in a woman's reproductive process:
ANY PERSON WHO, UNDER COLOR OF ANY FEDERAL, STATE OR LOCAL LAW, REGULATION OR CUSTOM, REQUIRES OR ATTEMPTS TO REQUIRE ANY PREGNANT WOMAN IN THIS STATE TO HAVE AN ABORTION, OR PREVENTS OR ATTEMPTS TO PREVENT ANY PREGNANT WOMAN IN THIS STATE FROM HAVING AN ABORTION PERFORMED BY A LICENSED MEDICAL PRACTITIONER SHALL BE LIABLE TO SUCH WOMAN IN AN ACTION AT LAW, SUIT IN EQUITY, OR OTHER PROPER PROCEEDING FOR REDRESS.
SECTION (reference to criminal abortion law) OF (state statutes) IS HEREBY REPEALED.
It is not the function of government to determine who shall and who shall not give birth to a child. The first paragraph of the above model law, with the deletion of the words "in this state" might also be appropriate for a federal law.
REPORT... OF THE LEGAL COMMITTEE OF THE NATIONAL ORGANIZATION FOR WOMEN
TO: The Board of Directors and the members of the National Organization for Women, at the First Annual Conference, Washington, D.C. November 18-19, 1967.
The organizing Conference of the National Organization for Women, at its October, 1966 meeting, authorized a Legal Committee to assist in litigation involving discrimination based on sex. The organizing conference was particularly concerned about the Mengelkoch case which had just been filed in the U.S. District Court, Southern District, California, by women factory workers who were denied promotions to better paying jobs, and denied opportunity to earn time and a half for overtime because of a California law prohibiting women (but not men) from working more than 8 hours per day or 48 hours per week.
The Committee. There are at least 30 members in NOW who are attorneys and judges. We would like to regard every one of them as a member of the Legal Committee and to count upon each of them to serve as court attorney or as consultant, according to their circumstances. My Memorandum to all these members of the bar November 9, 1967 invited them to indicate whether they could serve as an attorney of record and enter appearance and conduct a case when one arose in their home jurisdiction; and whether they would be willing to take a case from beginning, either without fee as a NOW representative, or by referral, for a woman alleging sex discrimination, if the litigant is able to pay reasonable fees.
Because of geographical separation over the country, there have been no meetings of the full committee. Moreover, communication by correspondence has had the handicap of working without operating headquarters and staff. The attorneys in Washington area have met when developments in pending litigation demanded. It has been a single individual, or two or three together, who has carried the burden in each piece of litigation and in other assignments carried out by this Committee. Positions taken in litigation must be correlated through the Chairman so that the Organization might avoid being placed in irreconcilable positions in our efforts to achieve legal equality. It would be my pleasure to name each attorney and give individual credit for his or her efforts. Attorneys from California to New York to Washington, D.C. have worked without fee. However, this report will be made in the impersonal term of "Legal Committee" leaving individual laurels to other channels.
In one short year of existence, remarkable progress has resulted from the devotion and skill of attorney members who have worked in their "Leisure Hours" to contribute to NOW's drive toward full partnership of women. Within such time, the Legal Committee has served as summarized below.
Bylaws. The Legal Committee hammered out the final draft of national bylaws which was then presented to and approved by the Board of Directors at its February 22-23, 1967 meeting in Chicago as correctly implementing the organizational conference directives and actions. These bylaws were then officially adopted by the corporation as the bylaws of the incorporated NOW.
The Committee was then called upon by the Board to draft standard bylaws for chapters, a task carried out through considerable correspondence. Standard bylaws were ordered and approved to simplify tax exemptions as well as to provide good framework for an organization to grow. After thorough discussion and refinement by the Board of Directors, it adopted a Standard Bylaws for Chapters consisting of 15 Sections. Provision is made therein for the chapter to adopt additional chapter bylaws to implement this necessary framework, and to meet the particular needs of the individual chapter, it being required only that there by no conflict with the standard and required sections. This will now pave the way for needed tax exemptions.
Incorporation. The legal services and drafting of necessary papers together with secretarial services involved, to bring about incorporation of the organization were the work of two members, acting under authority of the Board. A Certificate of Incorporation was issued February 10, 1967 by the Recorder of Deeds, District of Columbia, Washington, D.C. to the National Organization for Women under the provisions of the District of Columbia Non-profit Corporation Act.
Legal Defense and Educational Fund. Members of this Committee have from the beginning approved and urged the establishment of a Legal Defense and Educational Fund within the provisions of Section 501 (c)(3) Internal Revenue Code, which would thus be equipped to attract contributions which would be tax deductible, the fund designed to serve as the medium of giving legal assistance in court litigation. The Board of Directors, meeting in Madison, Wisconsin September 17, 1967 unanimously approved this recommendation of the Committee and authorized and directed the officers of NOW to "proceed forthwith to incorporate such legal and education fund" in New York. One of our prominent attorneys of New York is handling this matter.
Individual requests for legal aid. The Chairman has had aid and assistance of members in processing and replying to some 25 individual appeals for assistance or legal advice in cases of alleged discrimination. This requires the reading and analysis of pages of records and weighing the presented evidence against the law. The cases which seemed to have merit were answered as carefully as possible with our recommendations as to possible courses. We have not been in position of course to undertake to be counsel for these persons from widely separated areas of our country. As chapters grow in number, these instances can have better and more effective action there. We simply did our best on our own time and expense. A funded Legal Defense Fund is needed as the number of reported cases increases.
Court decisions. To the knowledge of this Chairman, there has not been a single court decision which has enforced the sex-discrimination provisions of Title VII. Nor, to our knowledge, has there been a single instance in which the Attorney General of the United States has intervened, as he may do under Title VII, on grounds of sex discrimination. Nor, has there come to knowledge or attention of this Committee, any instance of the Equal Employment Opportunity Commission entering or assisting in litigation where sex discrimination was at issue.
On the other hand, there have been adverse court decisions under Title VII. In Thelma Bowe et al v. Colgate-Palmolive Co. the U.S. District Court Southern District Indiana, handed down a decision on June 30, 1967 upholding company policy regulations under which women factory workers were confined to lower paid "finishing" jobs on the ground that it is proper to "protect" women from jobs requiring the lifting of more than 35 pounds. There was no state law involved; the decision is a limitation on the Federal statute, Title VII in its alleged ban on sex-discrimination which can be broadly expanded to many other restrictions upon women employees. The NOW Board has authorized the Legal Committee to assist plaintiffs on appeal. Three of the plaintiffs only have sought the assistance of our organization.
The case of Mengelkoch v. State of California filed in Federal Court in October 1966, is still undecided. The pleadings therein challenge the maximum hours law of California as a violation of Title VII, and as unconstitutional under the 14th amendment, by denying the right to pursue lawful employment without due process of law and in violation of equal protection of the laws. As authorized, NOW members of the Legal Committee prepared a brief sustaining plaintiffs, which was proffered to the Court as an amicus curiae brief. The brief was later filed as the brief of plaintiff, Velma Mengelkoch, when her original attorney was superseded by a California attorney and member of NOW, the brief being signed by the Chairman of the Legal Committee, and the California attorney. The original attorneys in the case failed to argue and support the 14th amendment issue when the case was heard on a motion to dismiss. This case seeks a special three-judge court on the ground of constitutional issue. If upheld, appeal would lie direct to the U.S. Supreme Court.
Advertising guidelines under Title VII. The Committee prepared a petition filed in December 1966, urging that the discriminatory guidelines on sex-segregated classified advertising in newspapers be rescinded, and that the Equal Employment Opportunity Commission substitute clear and unequivocal guidelines suggested by Congresswoman Martha Griffiths, the wording of which was included. This led to public hearings in May, 1967 by the EEOC on several issues under Title VII, including advertising, state labor laws, and pension and retirement plans. In connection with the May hearings, NOW submitted proposed guidelines on state labor laws as well.
Participation in interviews with officials. The Chairman and other Committee members have participated in face to face interviews by NOW delegations headed by President Friedan, insisting upon serious enforcement of the Sex-discrimination provisions of Title VII: On November 26, 1966 with all members of the Equal Employment Opportunity Commission; on January 12, 1967 with Attorney General Ramsey Clark; on January 13, 1967 with Chairman John Macy, Jr. and all other members of the Civil Service Commission, Mr. Macy being also Special Presidential Assistant.
The Committee has one recommendation: it urges the officers to take such action as will at the earliest possible moment set up and activate a Legal Defense and Education Fund as a means of furthering the most urgent needs of the organization.
In behalf of a loyal group, the Legal Committee:
Marguerite Rawalt, Chairman
1801 16th St. N.W.
Washington, D.C. 11009
NATIONAL ORGANIZATION FOR WOMEN (NOW)
Legal Procedures in Job Discrimination Cases (1967)
Discrimination by private employer or labor union
1. If your state (or municipality) has a fair employment law including sex, write to the state agency which enforces the law, by registered mail, giving all the facts of the discrimination. (State FEP laws)
2. If your state (or municipality) does not have such a law, file a complaint directly with the Equal Employment Opportunity Commission field office (find address in current Government Organization Manual at your public library), or at the EEOC, 1800 G Street, N.W., Washington, D.C. Complaint forms are available from the EEOC. Title VII covers employers having 50 or more employees and labor unions with 50 or more members (or which operate a hiring hall); as of next July 2, 25 or more employees or members. Note: charges must be filed within 90 days after the discriminatory practice occurred. (Title VII)
3. If in a case under (1) above, the state agency is unable to stop the discrimination within 60 days of the registered letter, or if the state agency terminates the proceedings before then, you may file with the EEOC as in (2) above, but you must file within 210 days of the discriminatory practice or 30 days after receiving notice that State proceedings have terminated, whichever is earlier.
4. If the EEOC notifies the complainant that it is unable to obtain compliance with Title VII, the complainant may, within 30 days, file a civil action against the employer or union in the Federal district court. (Title VII)
5. In cases of sex discrimination in pay, you may also simply write or telephone the U.S. Labor Department Wage and Hour and Public Contracts Division regional office (see Government Organization Manual) or write to that Division of the Labor Department in Washington, D.C. (FLSA Equal Pay Act). Note: there are some exceptions to this law but unless you are sure the law does not apply, notify the Labor Department.
6. If an employer or union has a general practice of widespread sex discrimination, send the information to the Attorney General of the United States and ask him to bring an action. Title VII gives the Attorney General this authority.
7. In all cases where complaints are filed with the EEOC or where any court action is take, immediately notify the chairman of the NOW legal committee, Suite 500, 1629 K Street N.W., Washington, D.C.
Discrimination by a state or local governmental agency (e.g., civil service, public schools and institutions)
1. These cases are not covered by Title VII. However, some of the State fair employment or civil service laws apply to sex discrimination in governmental employment. If your state (or city) has such a law, proceed as in (1) above.
2. Whether or not your state has such a law, a court action, in Federal or State court, can be filed against the agency or official which discriminates, on the ground that such discrimination violates due process of law and equal protection of the laws under the 14th amendment of the United States Constitution (and in some States, the State Constitution).
Discrimination caused by a State law or regulation (e.g. a law prohibiting employment of women in certain work, maximum hours restrictions on women only and weight lifting restrictions applying only to women)
An action can be filed in a three-judge Federal court to restrain the State officials from enforcing the discriminatory law, on the ground that the law is unconstitutional.
Discrimination in Federal employment
File a complaint with the equal employment opportunity officer of the particular agency. If the case is not satisfactorily resolved within the agency, a complainant may appeal to the United States Civil Service Commission.
Discrimination by labor union
A suit may be filed in Federal court to enjoin a labor union from discriminating against women workers and for damages for such discrimination. The Supreme Court has held that under the Fifth Amendment to the United States Constitution, labor unions must represent all workers fairly and equally and without arbitrary discrimination.
Note: In all types of cases, the facts supporting the charge of sex discrimination are important. In some cases, more than one of the above procedures may be applicable.
If you are in doubt as to what to do in a particular case, write to the NOW legal committee at the national headquarters giving as much information as possible on the case.
1. A NOW chapter delegation can ask to meet with and persuade an employer, union, or government agency to change its discriminatory policy.
2. Have a press conference to dramatize and give publicity, and elicit public support, for a case.
4. Try to get state legislatures to equalize all state labor laws or repeal special restrictions on women.
5. If your state has an FEP law which does not include sex, get sex added; if no FEP law, get one passed with sex in it, such as the model state civil rights law, which includes a prohibition against sex discrimination in employment.
If you are in doubt as to what laws your state has, ask an attorney member to look it up, or write to the NOW legal committee at the national headquarters.
INFORMATION CONCERNING ALLEGED DISCRIMINATION BASED ON SEX
(Including City,State, Zip Code)
(Area Code) Phone Number
When did the alleged discriminatory act take place? (Day) (Month) (Year)
Who discriminated?(Name of company, union, etc. -include address)
Describe briefly what happened that leads you to believe that you were discriminated against because of your sex?
Have you filed a charge of this discriminatory act with any agency?
If yes, specify which agency and when?Have you taken any court action in regards to this alleged discrimination?
If yes, specify where and when.
I would like the National Organization for Women to take appropriate action to process the foregoing charge of discrimination in my behalf.
TASK FORCE ON THE FAMILY (1967)
The basic ideological goal of NOW is a society in which men and women have an equitable balance in the time and interest with which they participate in work, family and community. NOW should seek and advocate personal and institutional measures which would reduce the disproportionate involvement of men in work at the expense of meaningful participation in family and community, and the disproportionate involvement of women in family at the expense of participation in work and community.
SUGGESTED MEASURES TO IMPLEMENT THIS GOAL:
Section 1 -
Cultivation of a wide spectrum of interests and skills among both girls and boys. If men and women are to participate as equal partners in adult life, boys must be encouraged to develop broad non-vocational interests, domestic skills and eagerness for community service, and young girls must be exposed to a wide range of career possibilities and encouraged to make career choices consistent with their true interests rather than social expectations of appropriate female fields. Only by changes in childhood experience and exposure can we counteract the work-achievement-science-money focus of American men, and the narrow home-nurturance-culture-beauty focus of American women.
Section 2 -
Later age at marriage and first pregnancy. If more women finished their educational training and acquired work experience relevant to their long range occupational goal before marriage and maternity, they would acquire more of the motivation, self-confidence and independence necessary for a balanced pattern of work and family life involvement after marriage. NOW should encourage wider opportunity of choice as to when or whether a person should marry or remarry, have or not have children.
Section 3 -
Individual control of reproductive life. NOW endorses the principle that it is a basic right of every woman to control her reproductive life, and therefore NOW supports the furthering of the sexual revolution of our century by pressing for widespread sex education, provision of birth control information and contraceptives, and urges that all laws penalizing abortion be repealed.
Section 4 -
Expansion and change in home maintenance services. NOW urges the upgrading of the status and competence of domestic service occupations. This is a necessary change both to improve the social and economic lot of household employees, and to enable women who have to work or wish to work, to minimize the length of time they withdraw from the labor force due to family and home responsibilities.
Section 5 -
Expansion and change in child care services. If women are to participate on an equitable basis with men in the world of work and of community service, child-care facilities must become as much a part of our community facilities as parks and libraries are, to be used or not used at the discretion of individual parents. NOW encourages the development of a variety of child-care facilities available on an all-day, all-year basis, adequate to the needs of children from the preschool years through early adolescence. This can be accomplished by the upgrading of skills and licensing of "mother substitutes" similar to the development of practical nursing, as well as by child-care centers administered as an added employee facility by private or public employers at the place of work, as a logical extension of the local educational system. Standards for facilities and personnel should be established by law.
Section 6 -
Revision of divorce laws and alimony arrangements so that unsuccessful marriages may be terminated without hypocrisy, and new marriages contracted without undue financial hardship to either man or woman
Section 7 -
Loosening of nepotism rulings and practices so that husbands and wives can work for the same enterprise in business, government or the educational system.
Section 8 -
Revision of tax laws to permit the deduction of full home and child-care expenses in income taxes of working parents.
Section 9 -
Revision of social security laws to assure equitable coverage for married and widowed women who have worked, as they now do for married women who did not work, and to eliminate discrimination based on sex or marital status in the conferring of benefits thereunder. (The question of divorced women was raised and was referred to the Legal Committee for clarification.)
Section 10 -
Maternity Benefits. Since bearing and rearing of children is an important and valued contribution to the perpetuation of our society, maternity should not involve any penalties to women who have to or wish to work. NOW encourages a campaign to eliminate discrimination on the basis of maternity by the protection of a woman's right to return to her job within a reasonable time after childbirth, determined by the woman herself, without loss of her disability credits or seniority.
Section 11 -
Expansion of "sick leave" to family members of employees. Men and women should be able to use sick leave to cover illnesses of children or spouses, not merely themselves. This is a needed social change both to revise our thinking from the needs of the individual to the needs of the family unit and to facilitate the sharing by men and women of their parental and marital responsibilities. Permit the deduction of full home and child-care expenses in income taxes of working parents.
Section 12 -
Employment laws designed to shorten hours of work should be revised to require equal treatment of male and female workers. As a current example, many women cannot work overtime if they wish to and many men feel compelled to work more overtime than they wish to. State employment laws should be reviewed and revised to assure that male and female employees have the right to refuse overtime work beyond a specified legal limit on overtime hours per week. Only by such equitable treatment can working fathers and mother participate equally in the pleasures and responsibilities of home care and child rearing.
RECOMMENDATIONS FOR PRIORITY:
(1) CHILD CARE
(a) Everyone opposes H.R. 12080 as passed by the House of Representatives. Urge support of the Kennedy amendment.
(b) NOW should take vigorous action to disassociate child care centers from "poor children of welfare cases." Child care facilities should be community resources like parks and libraries, to be used or not at the discretion of individual citizens.
(2) Cultivation of wide spectrum of interests and skills among young boys and girls. Urge Image and Education Task Forces to concern themselves with books in elementary schools re image of what women do.
(3) Urge all members of NOW to affiliate with National Committee for Day Care of Children, 114 East 32nd St., New York, NY 10016.
(4) Urge and recommend that NOW have more detailed discussion of maternity benefit issue before taking any action on this issue.
Propose the motion that 4 articles be approved to the Bill of Rights of 1968:
(1) Right of women who have to or want to work by protecting her right to remain on the job during pregnancy and return to her job after childbirth without loss of disability credits or seniority.
(2) Revision of tax laws to make child care and home maintenance tax deductible.
(3) Encourage the development of child care facilities for all preschool children and older children for hours they are not in school, to be used or not used at the discretion of individual citizens, much as parks and libraries are.
(4) NOW endorses the human right of every woman to control her reproductive life.