The National Organization for Women’s 1968 Bill of Rights – Where are we NOW?

In 1968, the National Organization for Women published a Bill of Rights, which they had adopted at their national conference in 1967. I thought it might be useful to determine how many parts of this Bill of Rights have been enacted in American law today. I have put each point of the NOW Bill of Rights in normal text, and then my own response is in italics.

I. That the United States Congress immediately pass the Equal Rights Amendment to the Constitution to provide that “Equality of rights under the law shall not be denied or abridged by the United States or by any State on account of sex” and that such then be immediately ratified by the several States.

             The Equal Rights Amendment, which was first proposed in the 1920s, was passed by Congress in 1972. However, it was not ratified and therefore did not become law, so this point of the NOW Bill of Rights was not enacted. The Equal Rights Amendment reads “Equality of rights under the law shall not be denied or abridged by the United States or by any state on account of sex.” The Equal Rights Amendment was reintroduced in Congress on July 14th, 1982 and has been introduced in every session of Congress since that time, but has not passed; if it did pass Congress, which would require a vote in its favor by two-thirds of the members of the House of Representatives and of the Senate, it would then have to be ratified by 38 states in order to become law. However, some supporters of the Equal Rights Amendment have taken inspiration from the Madison Amendment¸ concerning changes in Congressional pay, which was passed by Congress in 1789 and finally ratified in 1992 as the 27th Amendment to the Constitution. Following that precedent, they argue that the Equal Rights Amendment’s passage by Congress and state ratifications could still be valid, and thus Congress would only have to repeal the time limit on ratification of the Equal Rights Amendment, which expired in 1982, and then three more states would have to ratify the amendment in order to reach the 38 state mark which would make the Equal Rights Amendment a law (since 35 states ratified it in the 1970s.) More information on this can be found here.

II. That equal employment opportunity be guaranteed to all women, as well as men by insisting that the Equal Employment Opportunity Commission enforce the prohibitions against sex discrimination in employment under Title VII of the Civil Rights Act of 1964 with the same vigor as it enforces the prohibitions against racial discrimination. 

This point is more difficult to determine. I don’t think it’s really possible to tell if sex discrimination laws are being enforced equally with racial discrimination laws. So I would say this is undetermined. However, I would like to point out that originally liberals as well as conservatives opposed enforcement of prohibitions against sex discrimination in employment under Title VII of the Civil Rights Act of 1964; the liberal magazine The New Republic asked, “Why should a mischievous joke perpetrated on the floor of the House of Representatives be treated by a responsible administrative body with this kind of seriousness?” “Bunny problems indeed!” giggled a New York Times editorial, which also worried over the possibility of male chorus-line dancers and Playboy Bunnies.  Furthermore, the ban of sex discrimination in employment was offered by Congressman Howard Smith from Virginia, a segregationist who, in his own words, “offered it as a joke” to make the whole civil rights bill look foolish.

III. That women be protected by law to insure their rights to return to their jobs within a reasonable time after childbirth without loss of seniority or other accrued benefits and be paid maternity leave as a form of social security and/or employee benefit.

This has partially been enacted. The federal law known as the Family and Medical Leave Act (1993) guarantees job-protected maternity and paternity leave for up to twelve weeks. An employee’s entitlement to benefits during a period of Family and Medical Leave Act leave (for example, holiday pay) is the same as for annual leave or sick leave, and their seniority is not affected by taking Family and Medical Leave Act leave. However, the leave is unpaid and applies only to relatively long-term workers in workplaces with 50 or more employees, leaving out small businesses, new employees and workers who have put in fewer than 1,250 hours at that job. Most states and cities do not offer paid parental leave, and the United States is one of only four countries without a national law guaranteeing paid parental leave (see here [pdf])  More information about the Family and Medical Leave Act can be found here. Information comparing the family leave policies of the United States to those of other countries can be found here.

IV. Immediate revision of tax laws to permit the deduction of home and child care expenses for working parents.

This has partially been enacted. The child and dependent care tax credit has been established as a federal tax credit that allows working parents to deduct a percentage of their child care costs from the amount of federal taxes owed. The CCTC is not refundable and cannot be received in the monthly paycheck. The child care tax credit is based on the parent’s out of pocket expense, whether or not the family receives child care assistance. 24 states have similar tax credits. Further information can be found here and here. It is also possible to deduct many home-related expenses from your federal tax return, as you can see here.

V. That child care facilities be established by law on the same basis as parks, libraries and public schools adequate to the needs of children, from the pre-school years through adolescence, as a community resource to be used by all citizens from all income levels.

This has obviously not been enacted. An interesting point, however, is that it was close to being enacted by a Republican president, Richard Nixon. The United States Congress passed the Comprehensive Child Development Bill in 1971. If this bill had become law it would have established both early-education programs and after-school care across the country, with tuition on a sliding scale based on a family’s income bracket, and the program available to everyone but participation required of no one. However, Nixon vetoed it, and the Senate failed to override the veto by seven votes. See more here.

VI. That the right of women to be educated to their full potential equally with men be secured by Federal and State legislation, eliminating all discrimination and segregation by sex, written and unwritten, at all levels of education including college, graduate and professional schools, loans and fellowships and Federal and State training programs, such as the job Corps.

This has partially been enacted. Title IX, a portion of the Education Amendments of 1972, illegalizes sex discrimination in any education program or activity receiving federal financial assistance, which applies to many though not all college, graduate and professional schools, and the loans and fellowships they give out. It also does apply to Federal and State training programs which receive federal financial assistance, such as the job Corps.

VII. The right of women in poverty to secure job training, housing and family allowances on equal terms with men, but without prejudice to a parent’s right to remain at home to care for his or her children; revision of welfare legislation and poverty programs which deny women dignity, privacy and self respect.

This has partially been enacted.  Welfare laws often require people to work, which certainly can interfere with “a parent’s right to remain at home to care for his or her children.” And it can certainly be argued that drug testing, etc for people who seek welfare is a denial of their dignity. However, it is now illegal for job training programs to discriminate by sex. Furthermore, in the past, under the man-in-the-house rule, a child who otherwise qualified for welfare benefits was denied those benefits if the child’s mother was living with, or having sex with, any able-bodied male. The man was considered a substitute father, even if the man was not supporting the child. Of course, there never was a comparable rule limiting men’s sex lives. In 1968 the U.S. Supreme Court struck down the man-in-the-house rule, though not because of sex discrimination, but as being contrary to the legislative goals of the Aid to Families of Dependent Children (AFDC) welfare program.

VIII. The right of women to control their own reproductive lives by removing from penal codes the laws limiting access to contraceptive information and devices and laws governing abortion.

This has partially been enacted. Griswold v Connecticut, decided by the Supreme Court in 1965, struck down laws illegalizing the use of contraceptives by married couples (before the NOW Bill of Rights was written.) Later, after the NOW Bill of Rights was written, Eisenstadt v. Baird, decided by the Supreme Court in 1972, struck down laws illegalizing the use of contraceptives by single people. However, even today conscience clauses make it legal in many states for pharmacists to refuse to dispense contraception if it is against their conscience, which of course does not apply to dispensing any other medication. Furthermore, although Roe vs. Wade, decided by the Supreme Court in 1973, after the NOW Bill of Rights was written, established the right to abortion before fetal viability, there are still many restrictions on abortion, with every state having at least some restrictions, and some making it almost impossible to obtain an abortion due to their many restrictions and few abortion clinics. Federal restrictions on abortion, to name a few of many, include the Hyde Amendment, enacted every year since 1976, after the NOW Bill of Rights was written, which bans the use of certain federal funds to pay for abortion, and the Partial Birth Abortion Act of 2003, which bans a certain method of abortion. 

All in all, I would say two points of the NOW Bill of Rights have not been enacted (passing the Equal Rights Amendment and providing child care facilities along the same lines as libraries etc), one is undetermined (sex non-discrimination in employment law being equally enforced as race non-discrimination in employment law), and the rest, the other five points, have partially been enacted. This shows that our society has not advanced as far along in terms of women’s rights as many have hoped, but also that the NOW Bill of Rights, written in an even more sexist time than our own, was extremely ambitious.