Protection or Paternalism? When Laws Meant to Safeguard Women Become Control

By Zoe Kahn · WIIN Fellow, Non-Profit Governance, Human Rights & Immigration Advocacy · November 8, 2026

Historically, women’s bodies and their right to make independent decisions have been policed, regulated, and subjected to paternalistic control. Such practices have often been justified through deeply entrenched perceptions of women as inherently vulnerable, emotionally unstable, or incapable of exercising independent judgment. These assumptions have manifested in everyday perceptions of women, as well as in legal writing and procedures. While there is some legislation that can be understood as an attempt to protect or safeguard women’s rights, there are others that present themselves as such, but are actually a means of exercising control and restricting autonomy. This distinction reveals a fundamental tension within the relationship between gender and governance: legislation intended to safeguard women can simultaneously reinforce the very inequalities it claims to address. In the United States, for example, nineteenth- and early twentieth-century laws restricting women’s employment were frequently justified as necessary protections for their physical well-being and maternal responsibilities, even as they limited women’s economic opportunities.¹ The distinction between protection and paternalism therefore lies not simply in the stated intentions of legislation, but in whether its implementation expands women’s ability to exercise their rights or reinforces the state’s authority to make decisions on their behalf.

In the 1908 U.S. Supreme Court decision Muller v. Oregon, the Court upheld an Oregon law limiting women’s working hours in factories, laundries, and mechanical establishments to ten hours per day.² While this is arguably a genuine safeguard against exploitative working conditions, it was the language of the ruling, and the reasoning behind the decision, that has made recent scholars re-consider the historical importance of the case. For instance, the court argued that there are natural and inherent differences between the male and female sex, and even included that “woman’s physical structure and the performance of maternal functions” were essential to their decision making process.³ Moreover, the decision stated “The two sexes differ in structure of body, in the functions to be performed by each, in the amount of physical strength, in the capacity for long-continued labor…This difference justifies a difference in legislation.”⁴ Particularly revealing is the Court’s suggestion that even though women possessed equal contractual rights, their presumed physical vulnerability and dependence on men justified treating them as a separate legal class.⁵ This decision presumed attributes about a woman’s physical vulnerability and maternal responsibilities rather than arguing that capping the work day at 10 hours would prevent economic and physical exploitation. In doing so, the ruling reinforced the perception that women constituted a separate class of workers whose rights and opportunities required regulation on the basis of their sex. Although the ten-hour limitation offered tangible protections, the reasoning behind the decision raises a broader concern: when legal safeguards are justified through assumptions of inherent female vulnerability, they risk reinforcing the very gender hierarchies they claim to address. Therefore, the problem was not necessarily the ten-hour limit itself, but the assumption that women’s supposed biological limitations justified a different legal standard.

However, the implications of Muller v. Oregon extends beyond the Supreme Court’s decision, exposing broader disagreements within the women’s rights movement in regards to the relationship between protection and equality. While some reformers regarded gender-specific labor legislation as an essential safeguard against workplace exploitation, others questioned whether such protections reinforced the very inequalities they sought to address. For example, labor activist Florence Kelley was one of many reformers who supported protective legislation.⁶ Kelley, and other like-minded reformers, felt strongly about lobbying for legislation that exclusively protected women, and were in staunch opposition to legislation that granted equal rights on the basis of sex.⁷ This ideology was rooted in the proposed Equal Rights Amendment (ERA), which Kelley believed would invalidate labor protections for women. Her reasoning was that formal equality under the law did not necessarily translate into equality in practice. Women workers faced particular economic disadvantages, and removing protections without addressing those inequalities could leave them more vulnerable to exploitation.⁸

Kelley’s former allies, many of whom were in the National Woman’s Party, found instead that gender and sex based labor laws created additional barriers to women’s economic participation.⁹ One of these feminists, Alice Paul, who was also the co-founder and chairman of the National Woman’s Party, stated her position: “I do not believe in special protective labor legislation for women…I think that enacting labor laws along sex lines is erecting another handicap for women in the economic struggle.”¹⁰ This marked an important divide amongst women who sought reform, and feminists who were looking to challenge the status quo. Moreover, the disagreement amongst women revealed how women’s experiences of protective legislation differed according to their economic circumstances. For example, while working class women might benefit from protective legislation that restricted their hours and exploitative labor conditions, gender-specific employment laws could simultaneously limit women’s access to certain occupations and opportunities for economic advancement. Therefore, this divide among women’s rights advocates raised a more fundamental question of whether equality was best achieved through legislation that recognized women’s particular circumstances or through the elimination of legal distinctions based on sex.

This tension between protection and paternalism has continued beyond the early 20th century, resurfacing in debates pertaining to women’s reproductive health and their employment. There have been several instances where women are barred from certain workplaces because their employer believes the work conditions are a threat to their reproductive health or a potential fetus. For example, in the 1991 Supreme Court case UAW v. Johnson Controls, a battery manufacturer, tried to exclude all women capable of becoming pregnant from positions involving possible exposure to lead, citing that it could be harmful to the future fetus.¹¹ Although the policy was presented as a protective measure, it ended up restricting women’s employment opportunities based on their reproductive capacity. Most importantly, their employment was based upon their hypothetical potential to bear a child, regardless of their individual reproductive intentions, not their work ethic or ability to perform. Moreover, some women actually chose to be sterilized in response to the original claim, while others got moved to other departments and suffered economic losses due to lower compensation.¹² The Supreme Court ultimately ruled that the policy constituted unlawful sex discrimination, explicitly referencing Muller v. Oregon as part of the historical precedent for restricting women’s employment in the name of protecting their reproductive roles.¹³ Similarly in the 1970s, American Cyanamid, a large chemical and manufacturing conglomerate, was under great scrutiny when five of their female employees underwent sterilization in order to retain access to specific jobs.¹⁴ That fragile line between protection and paternalism is completely blurred when the policies start to focus not only on the reproductive health of women, but on their hypothetical ability to have children, even if those women don’t want kids. These policies are inherently policing women and excluding them from certain workforces without allowing women to make a choice for themselves. Rather than creating a blanket statement barring all women from specific job opportunities, why not address hazardous work environments, and inform women of the potential threats, so that they can make their own informed decisions about employment? Rather than prioritizing women’s hypothetical reproductive futures, these policies should be putting women’s bodily autonomy and economic independence first.

What these various examples have shown us is that the historical persistence of paternalistic reasoning reveals that the distinction between protection and control cannot be determined by legislative intentions alone. While the solution is not necessarily less protection, law and policy makers need to be more intentional with how they address structural inequalities, and avoid treating women’s autonomy as an obstacle to their own safety. Meaningful protection for women should be measured by whether it expands women’s ability to exercise their own rights, or if it reinforces the authority of institutions to make decisions on their behalf.

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Notes

1. Emma Wells, “Muller v Oregon: Reassessing Protective Legislation,” The Graduate Review 8 (2023): 83, https://vc.bridgew.edu/cgi/viewcontent.cgi?article=1270&context=grad_rev.
2. Cornell Law School, Legal Information Institute, “Muller v. Oregon (1908),” Wex, last reviewed January 2026, https://www.law.cornell.edu/wex/muller_v_oregon_(1908).
3. Ibid.
4. U.S. Supreme Court, Muller v. Oregon, 208 U.S. 412 (1908), excerpt, Hanover College History Department, https://history.hanover.edu/courses/excerpts/229muller.html.
5. Muller v. Oregon, 208 U.S. 412 (1908), https://www.law.cornell.edu/supremecourt/text/208/412.
6. Katie Rose Quandt, “Florence Kelley and the Feminist Opposition to the Equal Rights Amendment in the 1920s,” Unfolding History (blog), Library of Congress, March 14, 2024, https://blogs.loc.gov/manuscripts/2024/03/florence-kelley-and-the-feminist-opposition-to-the-equal-rights-amendment-in-the-1920s/.
7. Ibid.
8. Hal Draper and Stephen F. Diamond, “Two Women: Florence Kelley and Alice Paul,” chap. 3 of The Hidden History of the Equal Rights Amendment, Marxists Internet Archive, https://www.marxists.org/archive/draper/1980s/era/03-2women.htm.
9. Ibid.
10. Paolo Amorosa, “Pioneering International Women’s Rights? The US National Woman’s Party and the 1933 Montevideo Equal Rights Treaties,” European Journal of International Law 30, no. 2 (2019): 420, https://doi.org/10.1093/ejil/chz025.
11. Oyez, “Supreme Court Case No. 89-1215,” accessed November 5, 2026, https://www.oyez.org/cases/1990/89-1215.
12. International Union, UAW v. Johnson Controls, Inc., 499 U.S. 187 (1991), pg. 192, https://www.govinfo.gov/content/pkg/USREPORTS-499/pdf/USREPORTS-499-187.pdf.
13. Ibid.
14. Deborah Stone, “Fetal Risks, Women’s Rights: Showdown at Johnson Controls,” The American Prospect, September 1, 1990, https://prospect.org/1990/09/01/fetal-risks-women-s-rights-showdown-johnson-controls/.