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Gender and Federalism

Last Updated: 2006

A federal system of government is defined as a system in which power is shared by national and constituent governments. Because the Constitution of the United States enumerates certain powers to the federal government and reserves the others to the states, policy in many areas such as abortion, education, crime and capital punishment, and domestic violence may vary greatly from state to state. Decentralization of decision making into fifty state court systems, fifty state legislatures, and fifty sets of state bureaucracy means that men and women may be treated more equally in some states than in others. This was especially true prior to the adoption of the Civil Rights Act of 1964 and other legislation as well as court decisions extending protection against sex discrimination under the Fourteenth Amendment.

The Equal Protection Clause of the Fourteenth Amendment enacted after the Civil War forbade state governments from arbitrarily treating individuals differently from one another under the law. However, the U.S. Supreme Court did not interpret the clause to protect against sex discrimination until 1971. The Supreme Court overturned a state law as a violation of the Equal Protection Clause in a sex discrimination case for the first time in Reed v. Reed (1971). Further protection against sex discrimination was achieved in Craig v. Boren (1976), a case in which the Supreme Court overturned an Oklahoma law requiring males to be older than females to purchase beer as a violation of equal protection. In the Reed case, the Court used the same standard it uses in scrutinizing laws that do not classify based on sex or race; the court used an increased standard in Craig v. Boren known as “intermediate scrutiny” for the first time. The standard makes it more difficult for a law making a gender distinction to be upheld than other laws. The Court however, did not apply the “strict scrutiny” standard, which it uses in race cases, as the National Organization for Women (NOW) and other women’s groups had hoped.

One gender issue that is greatly affected by the federal system in the United States is abortion. This issue has dominated the American political scene ever since the U.S. Supreme Court decision in Roe v. Wade (1973). While pro-life supporters immediately began to work for a reversal of the policy at the national level, they also understood the importance for state legislatures in a federal system and began to work for state regulations on abortion. The U.S. Supreme Court strictly limited regulations in the first trimester prior to 1989. In Webster v. Reproductive Health Services (1989), the Court upheld a Missouri law that prohibited the use of any public facilities or public employees to perform abortions; it also required physicians to perform fetal viability testing before performing an abortion on a fetus of over twenty weeks. Again, in 1992 in Planned Parenthood of Southeastern Pennsylvania v. Casey, the Court upheld restrictions that had previously been rejected by the Court. The restrictions included a twenty-four-hour waiting period, informed consent, and parental consent with a judicial bypass procedure. In the years since the Casey ruling, many states have adopted similar restrictions. Other states, such as Maryland and New York, have few restrictions. States in the Midwest and the South generally have more restrictions than states in the Northeast. This reflects the different cultural and religious values in different regions.

Family law is very much influenced by the federal system under which we live in the United States. The U.S. Supreme Court ruled in United States v. Morrison in 2000 that the 1994 Domestic Violence Act was an unconstitutional infringement on the right of states to make policy in this area through the political process. The Court has long regarded family law and criminal law as areas of state policy making. Proponents of the legislation argued that the issue was one of women’s rights, which are guaranteed by the federal government. But by classifying the legislation as family and criminal law, the Court has deemed this issue one that the states are free to regulate as they see fit. This means that some states will provide much more protection against domestic violence than others, depending upon the climate in the state and its history in terms of gender roles.

While women’s rights under the law are protected under federal law and through federal court decisions, in areas such as family law, criminal law, and some aspects of abortion law, states can greatly influence women’s lives in ways that vary greatly from state to state based on the dominant cultural and religious values of the region.

SEE ALSO: Equal Rights AmendmentWomen’s Rights


Judith Resnik, “Categorical Federalism: Jurisdiction, Gender, and the Globe,” Yale Law Journal 3 (December 2001): 619–80; and Jean Reith Schroedel, Is the Fetus a Person? A Comparison of Policies across the Fifty States (Ithaca, NY: Cornell University Press, 2000).