Susan B. Anthony Was Rolling Over in Her Grave This July 4th

A little over a week ago, the U.S. Supreme Court's Dobbs decision decisively overturned over 50 years of precedent established by Roe v. Wade, thereby delivering a death blow to the reproductive freedom of women across the country, from sea to shining sea. That this represents an assault on women's rights, and on democratic citizenship itself, is widely understood by many Americans. At the same time, for the minority of Americans who have energetically sought this result for decades, the decision, perversely, represents not a defeat but a triumph of not simply "life" but "women" and "democracy" itself.

Among these indefatigable activists one Marjorie Dannenfelser looms large, as the president of Susan B. Anthony Pro-Life America, formerly known as the Susan B. Anthony List. Founded in 1993 and rebranded this year, the group relentlessly opposes abortion while claiming to promote the activism of women committed to "traditional," i.e., patriarchal, "family values." Last week's SCOTUS decision was a major victory for the group, which has feted such feminists as Joni Ernst, Nikki Haley, Mike Pence, and Donald Trump. And on the very day the decision was rendered, Dannenfelser announced that her group would now undertake a campaign to ban abortion "in every state and in every legislature, including the Congress."

Claiming the banner of Susan B. Anthony, one of the most important feminists and women's suffrage activists in U.S. history, Dannenfelser indeed declared that the decision is "a restoration of what authentic feminism is."

If Susan B. Anthony heard these words, then she is no doubt rolling over in her grave. And this year, as we face a multi-pronged effort by the Republican Party to undermine democracy itself, it is especially appropriate to consider why.

One reason is straightforward: because, while "pro-life activists" have laid claim to her legacy, it has long been well understood that this claim is highly controversial and equally problematic, centering as it does on the almost certainly false attribution to Anthony of a single article, anonymously published in 1869, entitled "Marriage and Maternity" that itself emphatically denounced laws banning abortion even as it valorized maternity and described abortion as "child murder." (Harper D. Ward has published a careful and devastating critique of the claims of Dannenfelser and other anti-abortion activists entitled "Misrepresenting Susan B. Anthony on Abortion" at the website of the National Susan B. Anthony Museum and House.)

A second reason is equally straightforward but more profound: because the Dobbs decision represents an assault not only abortion rights but on the broader commitment to egalitarian democracy that was at the heart of Anthony's career as a women's rights activist and suffragette.

For according to the logic of the decision, it is entirely legitimate for states to outlaw abortion--and, by implication, contraception, non-heteronormative sex, non-heterosexual and perhaps even interracial marriage. And it is equally legitimate to treat women seeking abortion and the doctors who furnish them with reproductive health care--along with a wide range of other categories of people seeking to enjoy privacy in their intimate lives or to pursue their professional vocations without interference-as criminals. The idea that this is remotely consistent with equal citizenship is preposterous. In the 21st century--which is not the 18th century--to abolish a general "right to privacy" is to relegate entire categories of people to the status of second-class citizens who live under a potential or an actual cloud of suspicion, are denied the freedom to be the people that they are, and are at risk of criminal prosecution if they behave as the people that they are.

Nothing could be further from the egalitarian vision of Anthony and her 19th century colleagues.

It was on another July 4, in 1876, that the uninvited Anthony seized the platform of the Centennial celebration of the Declaration of Independence in Philadelphia, and declared that "we ask justice, we ask equality, we ask that all the civil and political rights that belong to citizens of the United States, be guaranteed to us and our daughters forever." She proceeded to read aloud and then circulate a text drafted by Elizabeth Cady Stanton, Matilda Joslyn Gage, and herself for the National Woman Suffrage Association entitled "Declaration of the Rights of Woman of the United States." This Declaration, much like its more famous predecessor, the 1848 Seneca Falls "Declaration of Sentiments," offered a feminist and radically egalitarian revision of the original 1776 Declaration of Independence, well summed up in this paragraph:

Our faith is firm and unwavering in the broad principles of human rights proclaimed in 1776, not only as abstract truths, but as the corner stones of a republic. Yet we cannot forget, even in this glad hour, that while all men of every race, and clime, and condition, have been invested with the full rights of citizenship under our hospitable flag, all women still suffer the degradation of disfranchisement.

After enumerating a long list of degradations, all linked to the denial of the right to vote, the text concluded thus:

And now, at the close of a hundred years, as the hour-hand of the great clock that marks the centuries points to 1876, we declare our faith in the principles of self-government; our full equality with man in natural rights; that woman was made first for her own happiness, with the absolute right to herself--to all the opportunities and advantages life affords for her complete development; and we deny that dogma of the centuries, incorporated in the codes of all nations--that woman was made for man--her best interests, in all cases, to be sacrificed to his will. We ask of our rulers, at this hour, no special favors, no special privileges, no special legislation. We ask justice, we ask equality, we ask that all the civil and political rights that belong to citizens of the United States, be guaranteed to us and our daughters forever.

It is impossible to reconcile these words with the mission statement and the advocacy of Susan B. Anthony Pro-Life America.

Indeed, Anthony most famous speech, "Is it a Crime for a Citizen of the United States to Vote?" undermines not simply the right-wing "pro-life" position on abortion but the entire jurisprudence underlying the SCOTUS majority decision overturning Roe. For it challenges the very idea that fundamental rights require explicit articulation in the Constitution in order to be considered fundamental.

The circumstances surrounding the speech are now legendary. On November 1, 1872, along with a number of other women, Anthony visited a voter registration office in Rochester, New York with the intention of registering to vote. Her goal was to cast a vote for Victoria Woodhull, the first woman to run for U.S. President, in 1872, on the ticket of the Equality Party. The registration officials refused to allow her to register on the grounds that she was a woman, but when she threatened to sue them, they relented. She thus registered and, on election day on November 5, 1872, she voted.

Days later this "transgression" was reported, leading to her arrest for illegally voting in a federal election. Anthony refused to plead guilty or to accept bail, and spent two months in jail, hoping to have her case brought to the Supreme Court. She was tried on June 17, 1873, during which the judge precipitously ended the trial by denouncing her and directing the jury to declare a guilty verdict. At her sentencing hearing on June 18, she disregarded the judge's orders and delivered a speech against her conviction. The judge then declared her penalty to be a $10,000 fine. She refused to pay, and he allowed her to be released anyway.

It was in the Spring of 1873, while out on bail awaiting trial, that Anthony organized a speaking tour throughout upstate New York, in which she delivered "Is it a Crime for a Citizen of the United States to Vote?" The speech was quite literally a tour de force. Drawing on a wide range of legal and political sources in the American political tradition--the Declaration, the Revolution, and the "spirit of '76"; a litany of state constitutions and legislative enactments; a long tradition of legal scholarship and constitutional argument; and especially the Constitution itself and its recently ratified13th, 14th, and 15th Amendments--Anthony insisted that it is not and should not be regarded as a crime for any citizen of the U.S. to vote, and that women, as citizens, have as much right to vote as any other citizens.

To be clear, the National Woman Suffrage Association, founded by Anthony and Stanton, was formed in 1869 in protest of the 15th Amendment's failure to explicitly repudiate the denial of voting rights to women, and it represented an important split within the long-standing coalition between abolitionists and feminists in support of egalitarian democracy (the broader dynamic of racism within sections of the suffragette movement is nicely discussed here and here). But while initially committed to the amendment of the Constitution to enshrine female suffrage, by the early 1870's, Anthony had embraced a rhetorical strategy centered on the idea that another Constitutional amendment was hardly necessary to advance the cause of women's rights.

Her argument was simple: the Constitution itself already implicitly required a woman's right to vote, in the language of its preamble; the 13th Amendment's abolition of "slavery and involuntary servitude"; the 14th Amendment's commitment to equal protection under the law; and the 15th Amendment's insistence that the right to vote shall not be denied on the basis of "race, color, or previous condition of servitude." For if any "class" has long experienced servitude, Anthony argued, it was women.

In short, Anthony argued that even if the Constitution never explicitly articulated a woman's right to vote, a reading of its core provisions was impossible to reconcile with the denial of this right--an argument for "substantive due process" avant la lettre. A pretty straight line can be drawn between the logic of this argument and the "substantive due process" jurisprudence behind Roe and, before it, Griswold, centered on the idea of a generalized "right to privacy."

Anthony would surely be appalled by the Dobbs ruling and by the radical logic behind it, which repudiates a century of normative, legal, and political progress in the understanding and the codification of women's rights, human rights, and democracy.

But she might not be surprised. And while she would surely not forswear legal or jurisprudential efforts to reinstate the value of female autonomy assaulted by Dobbs, she would probably reiterate the argument she made in that infamous 1872 speech--that what the situation required was a strategy of political activism to reclaim the existing Constitution and the rights entailed by it.

The concluding words of that speech are worth quoting verbatim:

Benjamin F. Butler, in a recent letter to me, said:

"I do not believe anybody in Congress doubts that the Constitution authorizes the right of women to vote, precisely as if authorizes trial by jury and many other like rights guaranteed to citizens."

And again, General Butler said:

"It is not laws we want; there are plenty of laws-good enough, too. Administrative ability to enforce law is the great want of the age, in this country especially. Everybody talks of law, law. If everybody would insist on the enforcement of law, the government would stand on a firmer basis, and question would settle themselves."

And it is upon this just interpretation of the United States Constitution that our National Woman Suffrage Association which celebrates the twenty-fifth anniversary of the woman's rights movement in New York on the 6th of May next, has based all its arguments and action the past five years.

We no longer petition Legislature or Congress to give us the right to vote. We appeal to the women everywhere to exercise their too long neglected "citizen's right to vote." We appeal to the inspectors of election everywhere to receive the votes of all United States citizens as it is their duty to do. We appeal to United States commissioners and marshals to arrest the inspectors who reject the names and votes of United States citizens, as it is their duty to do, and leave those alone who, like our eighth ward inspectors, perform their duties faithfully and well.

We ask the juries to fail to return verdicts of "guilty" against honest, law-abiding, tax-paying United States citizens for offering their votes at our elections. Or against intelligent, worthy young men, inspectors of elections, for receiving and counting such citizens votes.

We ask the judges to render true and unprejudiced opinions of the law, and wherever there is room for a doubt to give its benefit on the side of liberty and equal rights to women, remembering that "the true rule of interpretation under our national constitution, especially since its amendments, is that anything for human rights is constitutional, everything against human right unconstitutional."

And it is on this line that we propose to fight our battle for the ballot--all peaceably, but nevertheless persistently through to complete triumph, when all United States citizens shall be recognized as equals before the law.

Can Americans committed to democracy and the equal rights of all citizens summon the energy and mobilize the resources to renew this fight? Will the Democratic Party and its leadership rise to the occasion, recognizing that politics as usual is not now an option, and that it is urgently necessary to mobilize vast numbers of voters in November on the basis of a real commitment to democratic reform, social and economic justice, and the reinstatement of the ideal of civic equality?

We will see.