Women, public health, and the police power

Please note that this post is from 2016. Evaluate with care and in light of later events.

I have written previously on the extensive deference given by courts in the nineteenth and early twentieth centuries when states, acting under the aegis of the so-called “police power,” restricted liberty when protecting the “public safety, health, and morals.” The court upheld compulsory smallpox vaccination in 1905, for example, holding that individual liberty had to yield before a state’s power to protect the health of the public.

Somewhat confusingly, this deference to government power came at a time when the Supreme Court was increasingly striking down regulations intended to, for example, equalize the bargaining position of workers and to protect the health and safety of working men. Economic liberty under the Fourteenth Amendment meant that states had to work hard to justify infringing the new “liberty of contract,” even if they said they were acting to protect the health and welfare of the public:

Statutes of the nature of that under review, limiting the hours in which grown and intelligent men may labor to earn their living, are mere meddlesome interferences with the rights of the individual, and they are not saved from condemnation by the claim that they are passed in the exercise of the police power and upon the subject of the health of the individual whose rights are interfered with, unless there be some fair ground, reasonable in and of itself, to say that there is material danger to the public health or to the health of the employes, if the hours of labor are not curtailed.
— Lochner v. New York, 198 US 45, 61 (1905)

But women were a different story.

Thus, the Court held in Muller v. Oregon (1908) that women’s hours (in laundries in Oregon) could be limited, unlike those of male bakers (in New York). After all, argued attorney Louis Brandeis in one of the earliest examples of an brief replete with social-science data, when women were exposed to unsafe and unsanitary conditions it affected their “capacity to product and sustain healthy offspring” — and thus implicated the welfare of the public as a whole, not just of the women themselves. In their amici brief to the Supreme Court in relation to Whole Women’s Health v. Cole (regarding a Texas law that increased restrictions on abortion providers), sixteen historians summarize their view of the impact of the case on legal perceptions:

Thereafter, women were assumed to be defenseless creatures, easily exploited by employers, and therefore subject to state protection.