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2. Geertz, , Interpretation at 90 (cited in note 1)Google Scholar. He also contends that religious symbols are both models of divine reality and models for human behavior. Id. Caroline Walker Bynum suggests that religious symbols can also influence individual consciousness, citing recent feminist critiques that agree “that men gain authority from the fact that the source of ultimate value is often described in anthropomorphic images as Father or King.” Bynum, Caroline Walker, et al, eds, Gender and Religion: On the Complexity of Symbols 1 (Beacon Press, 1986)Google Scholar.

3. McDonald, , 2 Yale J L & Feminism at 253 (cited in note 1)Google Scholar.

4. See Weigand, Kathryn McBrearty, Comment, The Secularization of the Law and Sex Discrimination, 31 Mercer L Rev 581, 593–94 (1980)Google Scholar; McDonald, , 2 Yale J L & Feminism at 289 (cited in note 1)Google Scholar.

5. Ruether, Rosemary Radford, Sexism, Religion, and the Social and Spiritual Liberation of Women Today, in Gould, Carol C., ed, Beyond Domination 107, 110 (Rowman & Allenheld, 1983)Google Scholar. Joan Scott notes that gender has “been a persistent and recurrent way of enabling the signification of power in the West, in Judeo-Christian as well as Islamic traditions.” Scott, Joan, Gender: A Useful Category of Historical Analysis, 1986 Am Historical Rev 1053, 1069Google Scholar. In addition, Dorothy Burlage argues that it is important to take the Judaeo-Christian teaching about women seriously, “because the church, as the ‘guardian of public morality,’ has been crucial in shaping sexual and social behavior in both civil and religious institutions.” Burlage, , Judaeo-Christian Influences at 94 (cited in note 1)Google Scholar.

6. Miles, Margaret R., Image as Insight: Visual Understanding in Western Christianity and Secular Culture 83–87 (Beacon Press, 1985)Google Scholar.

7. The Virgin Mary has been characterized as “the New Eve,” a spiritual mother of humanity who removes the sins of the original woman. Edith, & Turner, Victor, Image and Pilgrimage in Christian Culture 156–58 (Colum U Press, 1978)Google Scholar; McLaughlin, Eleanor Como, Equality of Souls, Inequality of Sexes: Woman in Medieval Theology, in Ruether, Rosemary Radford, ed, Religion and Sexism 213, 249 (Simon & Schuster, 1974)Google Scholar. Given this characterization, the anthropologists Edith and Victor Turner view Mary and Eve as structurally connected symbols, whose dichotomous relationship creates a “binary opposition,” in which Mary represents the Church and Eve those who are outside the Church. Turner, & Turner, , Image and Pilgrimage at 156 (cited above)Google Scholar.

8. See Phillips, John A., Eve: The History of an Idea (Harper & Row, 1984)Google Scholar. Antonia Fraser suggests that women may have been considered the morally “weaker vessel” in seventeenth century England because “Eve's audacious behaviour in the Garden of Eden certainly seemed to hint at some innate tendency to depravity in the female sex.” Fraser, Antonia, The Weaker Vessel 1 (Knopf, 1984)Google Scholar.

9. See McLaughlin, , Equality of Souls at 219 (cited in note 7)Google Scholar; Fraser, , The Weaker Vessel at 2, 60, 71 (cited in note 8)Google Scholar.

10. Fraser, , The Weaker Vessel at 72 (cited in note 8)Google Scholar.

11. Id at 62.

12. Id at 62 (quoting Tim. 2:14-15).

13. Works of Chrysostom, Homilies on Timothy, Vol IX, reprinted in Schaff, Philip, ed, 8 Select Library of Nicene and Post-Nicene Fathers of the Christian Church 436 (Eerdmans Pub'g Co, 1956)Google Scholar.

14. Daly, Mary, The Qualitative Leap Beyond Patriarchal Religion, 1 Quest: A Feminist Quarterly 20, 26–27 (Spring 1975)Google Scholar(citing Chesler, Phyllis, Women and Madness (Doubleday, 1972)Google Scholar).

15. Aquinas, Saint Thomas, 52 Summa Theologica IIIa, Q 27, Art 5 (London: Blackfriars with McGraw-Hill, 1972)Google Scholar.

16. For example, I Corin. 7:1; 14: 34; First Letter to Timothy 2:12; Ephes. 5:22, 24, discussed in Ranke-Heinemann, Uta, Eunuchs for the Kingdom of Heaven: Women, Sexuality and the Catholic Church 125–30 (Doubleday, 1990)Google Scholar; see Agonito, Rosemary, History of Ideas on Woman: A Sourcebook 67–72 (Putnam & Sons, 1977)Google Scholar.

17. Aurelius Augustine, City of God, Bk 12, ch 26; see also id Bk 14, quoted in Agonito, , History of Ideas at 73–76 (cited in note 16)Google Scholar.

18. Ambrose, , Commentary on the Gospel of Luke, I, 44Google Scholar, quoted in Ranke-Heinemann, , Eunuchs at 58–59 (cited in note 16)Google Scholar.

19. Aquinas, 13 Summa Theologiae Ia, Q 92, Art 1 (cited in note 15).

20. Id at II-II, Supp Q 164, Art 2.

21. Augustine, City of God, Bk 14 (cited in note 17). It follows from such statements, Mary Daly suggests, that in Aquinas' eyes, women are only good for reproduction, because he believed that in areas other than procreation, “a man can be more efficiently helped by another man.” Daly, Mary, The Church and the Second Sex 49 (Harper & Row, 1968)Google Scholar (quoting Thomas Aquinas, Summa Theologiae, Ia, Q 92, Art 1).

22. Thus, Aquinas taught children to love their fathers, as the active principle of generation, more than their mothers, as the passive one. 34 Summa Theologiae IIa/IIa, Q 26, Art 10 (cited in note 15). He also considered women incapable of educating their offspring. Summa Contra Gentiles III, 122. See Ranke-Heinemann, , Eunuchs at 189 (cited in note 16)Google Scholar.

23. See Brundage, James A., Law, Sex, and Christian Society in Medieval Europe 51–53Google Scholar (ancient Hebrews), 89 (Augustine), 139 (Jonas of Orleans), 156 (penitentials), 235 (Gratian) (U of Chicago Press, 1987).

24. Chrysostom, John, Homily 24 on the Letter to the Romans, quoted in Ranke-Heinemann, , Eunuchs at 74 (cited in note 16)Google Scholar.

25. See Brundage, , Law, Sex and Christian Society 586 (cited in note 23)Google Scholar.

26. Ranke-Heinemann, , Eunuchs at 65 (cited in note 16)Google Scholar.

27. Petchesky, Rosalind P., Abortion and Woman's Choice: The State, Sexuality, and Reproductive Freedom 342 (Northeastern U Press, rev'd ed, 1990)Google Scholar.

28. Id at 344.

29. Id at 342.

30. Id.

31. Gallagher, Janet, Position Paper: Fetus as Patient, in Taub, Nadine & Cohen, Sherrill, eds, Reproductive Laws for the 1990s 185, 188 (Humana Press, 1989)Google Scholar.

32. See, for example, Lindgren, J. Ralph & Taub, Nadine, The Law of Sex Discrimination 3 (West, 1988)Google Scholar; Berman, Harold J., Toward an Integrative Jurisprudence: Politics, Morality, History, 76 Cal L Rev 779 (1988)CrossRefGoogle Scholar; Berman, Harold J., The Interaction of Law and Religion (Abingdon Press, 1974)Google Scholar; Harding, Arthur L., ed, Religion, Morality, & Law (S Meth U Press, 1956)Google Scholar; John-Stevas, Norman St., Law and Morals (Hawthorn Press, 1964)Google Scholar.

33. Brundage, , Law, Sex, and Christian Society at 587 (cited in note 23)Google Scholar.

34. Constitutional law scholar Laurence Tribe notes that early judicial decisions relied on “divine intention” as the basis for upholding such discriminatory laws. Tribe, Laurence H., American Constitutional Law 441 n 20 (Foundation Press, 1st ed, 1978)Google Scholar.

35. 83 US (16 Wall) 130, 141 (1873).

36. Weigand, , 31 Mercer L Rev at 584Google Scholar (cited in note 4)(citing 2 Blackstone, William, Commentaries on the Laws of England 433Google Scholar; Helms v Franciscus, 2 Bland 544, 20 Am Dec 402, 407 (Md Ch 1830)).

37. Ritter v Ritter, 31 Pa 396, 398 (1858); see Weigand, , 31 Mercer L Rev at 585 (cited in note 4)Google Scholar.

38. 39 Wis 232, 245 (1875).

39. I thus disagree with Kathryn Weigand's appraisal that courts have in fact shifted from relying on religious grounds to legitimate sexually discriminatory legislation. See Weigand, , 31 Mercer L Rev at 589 (cited in note 4)Google Scholar.

40. Territory v Armstrong, 28 Hawaii 88, 96 (1924).

41. State v Bearcub, 1 Or App 579, 581-82; 465 P2d 252, 253 (1970).

42. For a review of this legislation and the court's treatment of it, see Rhode, Deborah L., Justice and Gender 38–44 (Harv U Press, 1989)Google Scholar; Hoff, Joan, Law, Gender, and Injustice ch 6 (NY U Press, 1991)Google Scholar; Kirp, David L.et al, Gender Justice 36–42 (U Chicago Press, 1986)Google Scholar.

43. 208 US 412, 421 (1908).

44. See Mary E. Becker, From Mutier v. Oregon to Fetal Vulnerability Policies, 53 U Chi L Rev 1219, 1222-23 (1986); Auman, Eva M., Note, Excluding Women from the Workplace: Employment Discrimination vs. Protecting Fetal Health, 55 Mo L Rev 771, 801 (1990)Google Scholar; Weisberg, D. Kelley, ed, 2 Women and the Law: A Social Historical Perspective, part IV (Schenkman Pub Co, 1982)Google Scholar. Similarly, Zillah Eisenstein contends that “[t]he prevailing discourse on protective legislation in the late nineteenth century was firmly grounded in the idea of woman as mother. Woman was viewed as compassionate, nurturant, and unfit for the competition of the market.” Eisenstein, Zillah R., The Female Body and the Law 203 (U Cal Press, 1988)Google Scholar.

45. See Becker, , 53 U Chi L Rev at 1224–25 (cited in note 44)Google Scholar.

46. 214 NY 395, 108 NE 639 (1915); see Becker, , 53 U Chi L Rev at 1223–24 (cited in note 44)Google Scholar.

47. 42 USC § 2000e, et seq (1988).

48. See Field, Martha A., Controlling the Woman to Protect the Fetus, 17 Law, Medicine & Health Care 114, 114 n 5 (1990)CrossRefGoogle Scholar (citing Burwell v Eastern Airlines, Inc., 633 F2d 361 (4th Cir 1980), cert denied, 450 US 965 (1981) (upheld airline regulation requiring pregnant stewardesses to go on mandatory leave after 13th week of pregnancy in order to protect passenger safety); Levin v Delta Airlines, Inc., 730 F2d 994 (5th Cir 1984) (upheld airline's regulation excluding all pregnant stewardesses from service on grounds of passenger safety); Harriss v Pan Am World Airways, Inc., 649 F2d 670 (9th Cir 1980) (upheld airline's policy requiring stewardesses to take leave from first moment they learn of their pregnancy)).

49. See, for example, Nashville Gas Co. v Satty, 434 US 136 (1977); General Elec. Co. v Gilbert, 429 US 125 (1976); Geduldig v Aiello, 417 US 484 (1974) (all holding that employers need not compensate pregnancy-related disabilities like other disabilities under Title VII, because discrimination on the basis of pregnancy is not sex-based). See discussion of these cases in Hoff, , Law, Gender, and Injustice at 294–96 (cited in note 42)Google Scholar; Eisenstein, , The Female Body and the Law at 66 (cited in note 44)Google Scholar.

One exception to the Court's validation of regulations relating to pregnancy is Cleveland Bd. of Educ. v LaFleur, 414 US 632, 648 (1974). In this case, the Court invalidated the constitutionality of mandatory pregnancy leave policies adopted by public schools on due process grounds, finding that the schools' administrative convenience was inadequate grounds for terminating women's employment during pregnancy, and that the choice of how long to work during pregnancy is an individual decision that requires constitutional protection.

50. See Hoff, , Law, Gender, and Injustice at 296–97 (cited in note 42)Google Scholar.

51. 42 USC § 2000e(k) (1988). The Act states:

“because of sex” or “on the basis of sex” include, but are not limited to, because of or on the basis of pregnancy, childbirth, or related medical conditions; and women affected by pregnancy, childbirth, or related medical conditions shall be treated the same for all employment-related purposes … as other persons not so affected but similar in their ability or inability to work … (emphasis supplied).

52. See Newport News Shipbuilding & Dry Dock Co. v EEOC, 462 US 669 (1983). Eva Rubin notes that “[i]t had taken a long time to convince a majority on the Supreme Court that disparate legal treatment of men and women, seemingly justified by biological differences between the sexes, often reinforced traditional social roles and reflected stereotypes about women that no longer reflected the outside world.” Rubin, Eva, The Supreme Court and the American Family: Ideology and Issues 93 (Greenwood Press, 1986)Google Scholar.

53. See Eisenstein, , The Female Body and the Law at 99–100 (cited in note 44)Google Scholar. Eisen-stein's observations that treating pregnancy as a temporary disability “does not meet the complex needs of women in an engendered society,” id at 100, and that “[w]e need a more encompassing vision of ‘person’ that recognizes pregnant bodies within a framework that allows plurality and diversity to be valued,” id at 108, are well taken.

54. See Law, Sylvia A., Rethinking Sex and the Constitution, 132 U Pa L Rev 955 (1984)CrossRefGoogle Scholar. Given the main contention in this paper that viewing women in terms of their biological difference, i.e., as fetal containers, has been a significant factor in the oppression of women, I disagree with Law's thesis that the problem lies with inadequate attention to women's biological difference in the development of modern constitutional sexual equality doctrine.

55. In what can be construed as another employment case involving the view of women as fetal containers, the Supreme Court invalidated two school board policies requiring mandatory unpaid pregnancy leave of pregnant school teachers in Cleveland Bd of Educ v LaFleur, 414 US 632 (1974). The school boards sought to justify their policies on pregnancy by claiming that they were intended “to protect the health of the teacher and her unborn child.” Id at 641. A more cynical interpretation of the policies is that they were intended to keep pregnancy out of public view, because women as fetal containers should be at home, not in the classroom where their biological function would be obvious to the children. The school boards' policies recall the paternalistic justifications given in defense of protective labor legislation a century before, which reflected similar attitudes towards women as reproducers first, and producers second.

56. Compare, for example, Harrison, Michaelet al, Occasional Notes: Fetal Treatment 1982, 307 New England J Medicine 1651 (1982)CrossRefGoogle Scholar, stating in 1982 that although many fetal abnormalities could be detected, only a few were amenable to treatment, and those that were, including for congenital diaphramatic hernia, were still experimental, with Kolata, Gina, A Major Operation on a Fetus Works for the First Time, New York Times A1 (05 31, 1990)Google Scholar, reporting on the successful treatment of a fetus in the womb for congenital diaphramatic hernia.

Peta Hallissy even asserts that “technology has transformed the fetus into a patient.” Hallissy, Peta Lewis, The Fetal Patient and the Unwilling Mother: A Standard for Judicial Intervention, 14 Pac L J 1065, 1074 (1983)Google Scholar. See also Myers, John E.B., Abuse and Neglect of the Unborn: Can the State Intervene? 23 Duquesne L Rev 1, 30 n 141 (1984)Google Scholar. Alan Fleishman is generally in accord with this assessment, but, unlike Hallissy, does not believe that this necessarily entitles the fetus to be treated as having the rights of personhood. Fleishman, Alan R., The Fetus is a Patient, in Taub, Nadine and Cohen, Sherrill, eds, Reproductive Laws for the 1990s 249, 253 (Humana Press, 1989)Google Scholar; see also Gallagher, , Position Paper 188 (cited in note 31)Google Scholar.

57. See, for example Gallagher, , Position Paper 188 (cited in note 31)Google Scholar: “Of all the arguments for fetal rights, the most popular and seemingly secular have been those based on our increased knowledge about prenatal development and new medical advances permitting in utero diagnosis and treatments.” Commentators have contended that “[F]etal rights cases represent a renewed attempt to define and control a woman's life by her reproductive capacity, as well as an attempt to imprison her throughout her pregnancy.” Ridder, Stephanie & Woll, Lisa, Transforming the Grounds: Autonomy and Reproductive Freedom, 2 Yale J L & Feminism 75, 90 (1989)Google Scholar.

58. See Becker, , 53 U Chi L Rev at 1220 (cited in note 44)Google Scholar.

59. Id at 1229.

60. See Gallagher, , Position Paper 190 (cited in note 31)Google Scholar. Industries with predominantly female employees include laundries, laboratories, dental offices, pottery painting, and electronics. Becker, , 53 U Chi L Rev at 1238 (cited in note 44)Google Scholar.

61. Ill S Ct 1196 (1991). The Court struck down the fetal protection policies of the employer.

62. See Becker, , 53 U Chi L Rev at 1234 (cited in note 44)Google Scholar.

63. Petchesky, , Abortion and Woman's Choice 345 (cited in note 27)Google Scholar.

64. Becker, , 53 U Chi L Rev at 1243 (cited in note 44)Google Scholar.

65. See id at 1231-32; Auman, , 55 Mo L Rev at 792–93 (cited in note 44)Google Scholar. The constitutional right to privacy was first recognized by the Supreme Court in Griswold v Connecticut, 381 US 479 (1965), a case holding that Connecticut could not prohibit married persons from access to contraception. Griswold recognized that persons have a “natural right” to privacy and autonomy against state interference in a number of areas relating to procreation and family matters. This right was further clarified in Eisenstadt v Baird, 405 US 438 (1972). In invalidating a Massachusetts statute prohibiting the sale or distribution of contraceptives to single persons, the Court stated: “If the right of privacy means anything, it is the right of the individual, married or single, to be free from unwarranted governmental intrusion into matters so fundamentally affecting a person as the decision whether to bear or beget a child.” Id at 453. Roe v Wade, 410 US 113 (1973), extended this right to women in making abortion decisions. And in Whalen v Roe, 429 US 589, 600 n 26 (1977), the Court noted that the constitutional right of privacy extended to limit state interference with personal decisions associated with “matters relating to marriage, procreation, contraception, family relationships, and child rearing and education.”

66. See, for example, Marcelo L. Riffaud, Comment, Fetal Protection and UAW v. Johnson Controls, Inc.: Job Openings for Barren Women Only, 58 Fordham L Rev 843, 844 (1990); Auman, 55 Mo L Rev at 792-93 (cited in note 44).

67. See, for example, Gallagher, , Position Paper 191 (cited in note 31)Google Scholar.

68. Becker, , 53 U Chi L Rev at 1228Google Scholar (citations omitted) (cited in note 44).

69. See Ridder, & Woll, , 2 Yale J L & Feminism at 98 (cited in note 57)Google Scholar.

70. 111 S Ct 1196 (1991).

71. “BFOQ” (which stands for “bona fide occupational qualification”) is an exemption to Title VII's prohibition on employer discrimination in cases where the regulations discriminate “on their face.” The BFOQ defense is allowed where the employer can demonstrate that qualifications based on sex are a necessary component of adequate job performance.

72. 111 S Ct at 1207.

73. Id at 1210.

74. See Raleigh Fitkin-Paul Morgan Memorial Hospital v Anderson, 42 NJ 421, 201 A2d 537, 538 (1964) (Court ordered blood transfusion to save life of pregnant Jehovah's Witness woman and her fetus where physicians believed both mother and fetus would die without the transfusion, despite her religiously based objection). Perhaps the most disturbing case to date is In re A.C., 533 A2d 611 (DC 1987), in which the court issued an order, over the husband's objections, authorizing a Cesarean section to be performed on a pregnant woman about to die of cancer in order to attempt to salvage her four month old fetus. Neither fetus nor mother survived more than two days after the surgery. The case was subsequently vacated because of constitutional concerns by 573 A2d 1235 (DC 1990).

In Jefferson v Griffin Spalding County Hospital Authority, 247 Ga 86, 274 SE2d 457 (1981), a physician informed his patient that because of a complication in her pregnancy, there was a 99 percent chance that she would lose the fetus and a 50 percent chance that she would die unless she agreed to deliver by Cesarean section. The physician was granted a court order authorizing him to perform the surgery over the mother's religiously based objection. (As it turned out, the woman delivered a healthy infant vaginally.) Other courts have authorized surgery in similar circumstances. See discussions in Annas, George J., Protecting the Future of Privacy in Pregnancy: How Medical Technology Affects the Legal Rights of Pregnant Women, 13 Nova L Rev 329 (1989)Google Scholar; Annas, , Pregnant Women as Fetal Containers, 16 Hastings Center Report 13–14 (12 1986)CrossRefGoogle ScholarPubMed; Annas, , Forced Cesareans: The Most Unkindest Cut of All, 12 Hastings Center Report 16–17 (06, 1982)CrossRefGoogle Scholar.

75. See Field, , 17 Law, Medicine & Health Care at 116 (cited in note 48)Google Scholar.

76. See Mathieu, Deborah, Respecting Liberty and Preventing Harm: Limits of State Intervention in Prenatal Choice, 8 Harv J L & Pub Pol 19 (1985)Google ScholarPubMed; Johnsen, Dawn E., Note, The Creation of Fetal Rights: Conflict with Women's Constitutional Rights to Liberty, Privacy, and Equal Protection, 95 Yale L J 599 (1986)CrossRefGoogle Scholar.

77. For example, Hallissy has proposed that judicial authorization of medical interventions on behalf of the fetus should not be made over the woman's objections in two situations. First, “a mother should be allowed … to refuse fetal therapy when it is offered not as a cure, but solely to prolong or salvage the life of a seriously impaired fetus.” Second, she should be able to refuse therapy when the efficacy of the treatment is disputed or presents a significant risk to the mother's life. Hallissy, , 14 Pac L J at 1069 (cited in note 56)Google Scholar. She suggests that the state's interest in protecting the life and health of the unborn, and “in promoting responsible private medical care decisions affecting the fetus” otherwise justifies medical intervention on behalf of the fetus against the mother's wishes. Id at 1078.

78. Supreme Court precedents recognizing parental rights include Parham v J.R., 442 US 584 (1979)(in context of civil commitment proceedings); Wisconsin v Yoder, 406 US 205 (1972)(right of Amish not to send children to school beyond eighth grade); Prince v Massachusetts, 321 US 158 (1944)(parental freedom and authority not absolute against state intervention for child's welfare); Meyer v Nebraska, 262 US 390, 399-400 (1923) (parental right to control the education of their children); Pierce v Society of Sisters, 268 US 510 (1925) (right to send children to parochial rather than public school).

79. By conflating the state's right to intervene to order medical treatment for children over parental objection with such intervention on behalf of the fetus, Hallisey's proposal, for example, ignores the constitutionally based legal distinction between children, who are “persons,” and fetuses, which are not. See Hallisey, , 14 Pacific LJ at 1074 (cited in note 56)Google Scholar.

80. See Parham v J.R., 442 US 584, 602 (1979).

81. See, for example, Ingraham v Wright, 430 US 651, 673 (1977) (the Fourteenth Amendment protects the right to be free of “unjustified intrusions on personal security”); Terry v Ohio, 392 US 1, 9 (1968).

82. See Rennte v Klein, 720 F2d 266 (3d Cir 1983)(holding that involuntarily committed mentally ill patients have a constitutional right to refuse drugs); Bowden v State, 256 Ark 820, 510 SW2d 879, 881 (1974); People v Smith, 80 Mise 2d 210, 362 NYS2d 909 (1974).

83. See Field, , 17 Law, Medicine & Health Care at 116 (cited in note 48)Google Scholar.

84. Fleishman, , The Fetus 253 (cited in note 56)Google Scholar.

85. No. M 508097 (Cal, San Diego Mun Ct, Feb 23, 1987) slip op.

86. State v Johnson, No. E89-890-CFA (Fla, Seminole Cty Cir Ct, July 13, 1989), slip op; see discussion of this case in Roberts, Dorothy E., Drug-Addicted Women Who Have Babies, 26 Trial 56, 58 (04, 1990)Google Scholar; Moss, Kary, Substance Abuse During Pregnancy, 13 Harv Women's L J 278, 280–84 (1990)Google ScholarPubMed; see also In re Baby X, 97 Mich App 111, 293 NW2d 736 (1980)Google Scholar (neglect proceedings brought against mother for newborn's narcotic addiction).

87. McNulty, Molly, Note, Pregnancy Police: The Health Policy and Legal Implications of Punishing Pregnant Women for Harm to their Fetuses, 16 NYU Rev L & Soc Change 277 (1987–1988)Google Scholar.

88. Balisy, Sam S., Note, Maternal Substance Abuse: The Need to Provide Legal Protection for the Fetus, 60 S Cal L Rev 1209, 1235–36 (1987)Google ScholarPubMed. The rationale for his decision is that:

Situations involving maternal-fetal conflict provide at least a basis for concluding that maternal abuse of alcohol, narcotics, and tobacco can legally be restricted. Arguably, proscription of the injurious conduct is no more intrusive on autonomy rights than are compelled cesarian sections or fetal therapy. Since the state recognizes an interest in potential life in these analogous situations, the state should also recognize an interest in potential life in the case of fetal substance abuse. Id at 1231.

89. See, for example, Myers, , 23 Duquesne L Rev 1 (cited in note 56)Google Scholar; Hallissy, , 14 Pac L J 1065 (cited in note 56)Google Scholar; Robertson, John A., The Right to Procreate and In Utero Fetal Therapy, 3 J Legal Medicine 333 (1982)CrossRefGoogle ScholarPubMed.

90. Gallagher, , Position Paper 200 (cited in note 31)Google Scholar.

91. See, for example, Matter of Stephen S, 126 Cal App 3d 23, 28-29, 178 Cal Rptr 525, 527-28 (1981); Reyes v Superior Court, 75 Cal App 3d 214, 141 Cal Rptr 912 (1977); Matter of Dittrick Infant, 80 Mich App 219, 263 NW2d 37 (1977).

92. Yet certain types of conduct by men can also affect the health of the fetuses they parent. See Roberts, , 26 Trial at 58 (cited in note 86)Google Scholar; Gallagher, , Position Paper 190 (cited in note 31)Google Scholar.

93. See, for example, Roberts, 26 Trial (cited in note 86); Gallagher, Position Paper (cited in note 31).

94. Gallagher, , Position Paper 215 (cited in note 31)Google Scholar. Alan Fleishman also notes medical references to pregnant woman as fetal “containers” or “incubators.” Fleishman, , The Fetus 253 (cited in note 56)Google Scholar.

95. Roe v Wade, 410 US 113, 157-58 (1973).

96. Id at 139- 40; Hoff, , Law, Gender, and Injustice 299 (cited in note 42)Google Scholar; Petchesky, A bortion and Woman's Choice (cited in note 27); Eva R. Rubin, Abortion, Politics and the Courts: Roe v. Wade and Its Aftermath (Greenwood Press, 1982).

97. Gallagher, Position Paper 190 (cited in note 31).

98. See Rubin, Eva R., The Supreme Court and the American Family: Ideology and Issues 65 (Greenwood Press, 1986)Google Scholar.

99. Id at 59.

100. Roe, 410 US at 150.

101. Id at 154.

102. Id at 163-64.

103. See Petchesky, , Abortion and Woman's Choice 242 (cited in note 27)Google Scholar.

104. 112 S. Ct. 2791 (1992). In Casey, the Court upheld provisions of a Pennsylvania abortion law requiring informed consent, a twenty-four hour waiting period, parental consent, and reporting and record-keeping requirements, as not constituting an “undue burden” on the woman's consitutionally protected right to choose an abortion before fetal viability. In Webster v Reproductive Health Sen., 492 US 490 (1989), the Court upheld provisions of a Missouri statute banning the use of public employees and facilities for abortions, and requiring physicians to test fetuses at least 20 weeks old for viability. The Court declared that Roe v Waide did not proscribe a state from favoring prenatal life rather than abortion, citing Maher v Roe, 432 US 464 (1977), Poelker v Doe, 432 US 519 (1977), and Harris v McRae, 448 US 297 (1980), all cases in which the Court upheld governmental regulations withholding public funding for non-therapeutic abortions. See also Beal v Doe, 432 US 438 (1977) (states not required to use public funds to offer free elective abortions to the indigent).

105. See, for example, Shalev, Carmel, Birth Power: The Case for Surrogacy (Yale Univ Press, 1989)Google Scholar; Whiteford, Linda M., Commercial Surrogacy: Social Issues Behind the Controversy, in Whiteford, Linda M. and Poland, Marilyn L., eds, New Approaches to Human Reproduction: Social and Ethical Dimensions 145 (Westview Press, 1989)Google Scholar; Capron, A.M. and Radin, M.J., Choosing Family Law Over Contract Law as a Paradigm for Surrogate Motherhood, 16 Law, Medicine & Health Care 34, 36 (1988)CrossRefGoogle Scholar.

106. Compare, for example, Rush, Sharon E., Touchdowns, Toddlers, and Taboos: On Paying College Athletes and Surrogate Contract Mothers, 31 Ariz L Rev 549 (1989)Google ScholarPubMed; Shalev, Birth Power (cited in note 105); and Andrews, Lori B., Surrogate Motherhood: The Challenge for Feminists, 16 Law, Medicine & Health Care 72 (1988)CrossRefGoogle ScholarPubMed with Capron, and Radin, , 16 Law, Medicine & Health Care 34 (cited in note 105)CrossRefGoogle Scholar.

107. Rubin, , The Supreme Court and the American Family at 23 (cited in note 98)Google Scholar.

108. In Breedlove v Suttles, 302 US 277, 282 (1937), the Supreme Court excluded women from a poll tax “[i]n view of burdens necessarily borne by them for the preservation of the race.” See also Minor v Happersett, 88 US (21 Wall) 162 (1875) (upholding the restriction of suffrage to men). Other cases have used women's child care role as a rationale for imposing different standards on men and women for jury duty. For example, in upholding the validity of a statute excluding women from mandatory jury duty, the Mississippi Supreme Court in State v Hall, 187 S2d 861, 863 (Miss 1966), held that the legislature was justified in enacting the exclusion of women “so they may continue their service as mothers, wives, and homemak-ers, and also to protect them … from the filth, obscenity, and noxious atmosphere that so often pervades a courtroom during a jury trial.” See also Hoyt v Florida, 368 US 57, 62 (1961), (excusing women from jury service unless they voluntarily registered, because “woman is still regarded as the center of home and family life”).

109. Zillah Eisenstein probably comes the closest of any of the prominent feminist legal scholars to recognizing this symbolic power of law. She characterizes law as “an authorized discourse,” that is, “a language constituted by a series of symbols that is located in not merely the realm of the ‘ideal’ or the ‘real’ but a place somewhere in between.” Eisenstein, , The Female Body and the Law 4 (cited in note 44)Google Scholar.

110. Scott, , 1986 Am Historical Rev at 1063 (cited in note 5)Google Scholar.