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Protective Legislation

The foundation for understanding contemporary policy debates on work, pay, and women’s rights is the rationale for protective laws enacted nearly a century ago. The first protective laws promoted by the reformers trying to moderate the mistreatment of workers in the early period of industrialization made no distinction based on sex-the laws applied to everyone. The courts, in the grip of laissez-faire theories, regularly struck down such laws as violating the constitutional freedom of contract. Faced with defeat in the courts, progressives and feminists joined together in the 1880s to help women workers. Several forces converged to produce this reform coalition. Infant mortality rates were on the rise, and the new science of empiricism produced documentation linking infant death to demands on poor working mothers. All these reformers were alarmed by the way women were used by employers, forced to work long hours and do heavy, exhausting work for little pay. Men were “worked” like that, too, but they were stronger and did not have to face pregnancy and childbirth. Feminists were moving away from the “inalienable rights” view of equality espoused by Elizabeth Cady Stanton and Susan B. Anthony and toward a new phase extolling motherhood as a woman’s primary role, a role of equal dignity to man’s role as breadwinner. A woman had to be healthy, educated, and secure in her moral leadership in the home to give birth and raise healthy, vigorous offspring. The fledgling eugenics movement joined in, focusing on the essential contribution to the race made by women in their proper roles.2