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100 Yale L.J. 1281 (1990-1991)
Reflections on Sex Equality under Law

handle is hein.journals/ylr100 and id is 1295 raw text is: Reflections on Sex Equality Under Law
Catharine A. MacKinnont
There is a wrong way of thinking that one has rights,
and a wrong way of thinking that one has not any.
Simone Weill
No woman had a voice in the design of the legal institutions that rule the
social order under which women, as well as men, live.2 Nor was the condition
of women taken into account or the interest of women as a sex represented. To
Abigail Adams' plea to John Adams to remember the ladies in founding the
United States, he replied, We know better than to repeal our Masculine
systems.3 Mostly, one senses, women as such were beneath notice at the
Copyright* 1991 by Catharine A. MacKinnon.
t Catharine A. MacKinnon is Professor of Law at the University of Michigan Law School
This Article has benefited greatly from readings by Alex Aleinikoff, Susanne Baer, Karen E. Davis,
Andrea Dworkin, Owen Fiss, Kent Harvey, Yale Kamisar, Rick Lempert, Janice Raymond, Deborah Rhode,
Kim Scheppele, Ted Shaw, Anne E. Simon, Cass Sunstein, Peter Westen, and James B. White. The law
librarians at Michigan, especially Barbara Vaccaro and her staff, supported the research persistently and
creatively. Rita Rendell supported everything with tremendous resourcefulness and competence. The
argument on sexual assault as a form of sex discrimination has been largely shaped in discussions with
Andrea Dworkin over the years. More recently it has been focused in collaboration with Elizabeth Shilton
and other colleagues at the Women's Legal Education and Action Fund (LEAF) in litigation in Canada.
Cass Sunstein has thought I should write my argument on abortion for some years and never neglected an
opportunity to bring it up. The approach to reproductive control as a sex equality issue has also grown with
colleagues at LEAF through a series of cases and legislative testimony. I have tried to footnote distinctive
language by others and to highlight arguments focused and formulated by LEAF's submissions. My attempts
will necessarily fall short of giving adequate credit to a collective process. Discussions about reproductive
rights with Christine Boyle, Christie Jefferson, Helena Orton, and Lynn Smith were particularly formative.
This aspect of the work owes the most to Mary Eberts. Her brilliant insights, depth of mind, breadth of
knowledge, incisive yet tactful legal formulations, and her courage and tenacity in bearing witness to the
truth of women's lives are written all over these pages. LEAF, of course, endorses only the content of its
own facta.
1. S. WEIL, I THE NOTE1OOKS OF SIMONE WEIL 152 (A. Wills trans. 1956).
2. In the United States, many men were also excluded from the official founding process. African
American men and women were considered property. Indigenous peoples were to be subdued rather than
consulted. Non-property owners were not qualified to participate in most states. C. BEARD, AN ECONOMIC
INTERPRETATION OF THE CONSTrrtIoN OF THE UNIED STATES 64-72 (1913) (state-by-state property
requirements for delegates to Constitutional Convention).
3. 1 ADAMS FAMILY CORRESPONDENCE 370,382 (L. Butterfield ed. 1963) (original manuscript dated

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