Mar 27, 2026 Sarah Lorr
What makes a good mother? This question, once answered simply by staying alive, has become more complicated over time. For example, the recent Heritage Foundation Report, Saving America by Saving the Family: A Foundation for the Next 250 Years, seems to suggest that a good mother is defined, at least in part, by her marital status. Some might locate good mothering in the willingness and ability to deeply research childcare-related choices and provide labor-intensive care, while others caution against this sort of “intensive parenting.” And how should a mother feel? Is it healthy to feel conflicted about motherhood? Is it normal?
In a cultural context that prizes the selfless mother above all, Professor Elizabeth Kukura’s engaging and insightful article, Normalizing Maternal Ambivalence, argues that scrutinizing and punishing maternal ambivalence is the result of restrictive gender stereotypes about the self-sacrificing and overwhelmingly joyful mother. Maternal ambivalence, which is “both common and normal,” can be defined as having mixed feelings about mothering and the role of motherhood. Psychologists consider such complex, uncertain feelings about motherhood typical; the multiplicity of modern motherhood memoirs and their market success offer evidence that ambivalent feelings about motherhood are both common and relatable to many. Despite the ubiquity of maternal ambivalence, Professor Kukura shows us that it can be a basis to punish mothers in the criminal legal system and separate families in the family regulation system.
Professor Kukura begins by defining maternal ambivalence. Using motherhood memoirs, social science, sociology, and psychotherapy, Kukura is careful to distinguish maternal ambivalence from postpartum depression and the stress of parenthood. Postpartum depression—a mood disorder that can develop after a mother gives birth—is marked by purely negative experiences and feelings. The stress of parenthood is the mundane experience of parenting: the daily grind of parenting, the stress of a toddler’s tantrums, the harried period between school pickup and dinner. In contrast, maternal ambivalence is marked simply by mixed feelings about the role of mother. Still, the relationship between the two experiences and maternal ambivalence is nonetheless complex. The sadness associated with postpartum depression can be mistaken for ambivalence, and the stress of parenting may indeed make some mothers more ambivalent about taking on the role.
Professor Kukura is most concerned with normalizing maternal ambivalence because of the ways in which it has become a basis for judging and even prosecuting mothers. She describes the way women who experience miscarriages and still births—especially poor and non-white women—can face punishment based on reproductive outcomes. Mothers who share feelings of being overwhelmed or who previously considered an abortion can be prosecuted or investigated for having still births, revealing how state authorities and medical professionals have coextensive and overlapping power to police mothers who are perceived as deviant. Professor Kukura demonstrates that vague statutes designed to criminalize the act of hiding a fetus or stillborn baby (called concealment of birth) and abuse of a corpse can be used to prosecute and punish maternal ambivalence. We also learn the way expressions of ambivalence—such as considering abortions in prior pregnancies, sharing uncertainty about an upcoming childbirth, or verbalizing the stress and anxiety experienced during pregnancy—can be understood as indicators that a mother might harm her children in the family court context. In these cases, state investigators and judges sometimes remove children from mothers who have expressed anxiety or uncertainty about their role as mothers.
Professor Kukura then offers another gift to her reader: an account of the true ubiquity of maternal ambivalence. Here, she recounts the range of experiences ambivalent mothers-to-be might have: inconsistent use of contraceptives, delay of decisions related to childbearing, voluntary childlessness, and others. If a pregnancy is carried to term, the experience of ambivalence may be complicated further by what sociologist Sharon Hays calls “the ideology of intensive mothering.” (P. 591, n. 175.) This is based on white, middle- or upper-class norms that call upon mothers to put their children above themselves and prioritize the child as the center of their lives. While apparently exalting motherhood, these norms also set a standard that is nearly impossible to reach. Such strong pressure to reach intensely high standards can itself create ambivalence.
Kukura next turns to the psychology and sociology of maternal ambivalence. Her treatment of maternal ambivalence is nuanced, and she takes care to show that the ideals related to good motherhood and what it might mean to be a selfless mother differ by race, class, and other cultural contexts. For example, while the white middle class norm may regard selflessness as forgoing work outside of the home, “[a]gainst the backdrop of economic struggle, a good mother is someone who is able to provide for their children and keep them safe.” (P. 603.) The reality that different cultures have different values about motherhood makes clear both that stereotypes—derived mostly from white, middle- or upper-class norms—motivate the legal understanding of what it means to be a “good mother” and why it is so problematic for the law to punish or investigate expressions of perceived ambivalence at all.
Professor Kukura ends by making a strong case that the punishment of maternal ambivalence is a discriminatory form of sex stereotyping. She argues that punishing women who express ambivalence about motherhood rest on a culturally produced, internalized, concept of the ideal mother. When women deviate from this stereotypical ideal—a notion informed by white middle-class values associated with stay-at-home mothers—they are being punished based on their failure to meet a sex-based stereotype.
From there, she puts forward several legal interventions to help normalize maternal ambivalence. Though she acknowledges the underperformance of past federal policies designed to support mothers, she suggests universal access to prenatal, childbirth, and postpartum doula support, lactation support, and “Finnish-style newborn starter kits,” regardless of insurance status or ability to pay. She also suggests universal access to counseling for all pregnant and postpartum women to not only offer concrete support but also to normalize the idea that many women might experience identity conflicts around motherhood. Even more concretely, she suggests repealing vague concealment statutes to foreclose the prosecution and punishment of maternal ambivalence; training mandatory reporters and medical providers on both the consequences and true contours of their reporting obligations; and the adoption of evidence rules that would exclude evidence of maternal ambivalence in criminal and family court.
By offering this well-researched critique of the role of maternal ambivalence in prosecuting mothers or separating them from their families, Professor Kukura does exactly what she calls upon the law to do: normalize maternal ambivalence. All mothers—prosecuted or not—are better off for this work.
Feb 26, 2026 Linda C. McClain
What role can civic education play in polarized times? That is the pressing question posed by Civic Education in Polarized Times, edited by Elizabeth Beaumont and Eric Beerbohm. As Beaumont’s introduction explains, “as political polarization has intensified across the world, civic education seems more urgent, but it has also become more challenging.” (P. 1.) The volume brings together an eminent group of education scholars, legal scholars, political theorists, and philosophers to consider challenging questions about how to carry out civic education “in a polarized era” and “for a polarized era.” (P. 2.)
The first set of questions includes the impact of polarization on efforts to teach civic education when “schools, administrators, teachers, parents, and teachers are also operating in a divided world.” (P. 2.) Questions about how to prepare students for a polarized world include determining the aims of civic education amidst hyperpolarization, what types of “civic learning” hold the greatest promise to help students prepare to navigate their way in the current political landscape, and whether civic education should seek to “reduce or counteract polarization.” (P. 2.)
These questions–and the range of answers provided–have much to offer family law scholars and teachers. Civic education implicates the dual authority, in the U.S. constitutional order, of parents and schools for educating children and generating the capacities for democratic and personal self-government. Children are neither, as Pierce v. Society of Sisters famously expressed it, “mere creatures of the state” nor, as political scientist Stephen Macedo aptly puts it (in Diversity and Distrust: Civic Education in a Multicultural Democracy (2000)), “simply creatures of their parents.” (P. 243.)
The idea that families play an indispensable role in forming good citizens has a long history, evident in references to families as “seedbeds” of civic virtue. So, too, does the premise that public education, as Brown v. Board of Education stated, provides the “very foundation of good citizenship” and for “success in life.”
The tension between parents and schools was revisited in the U.S. Supreme Court’s recent decision, Mahmoud v. Taylor, which held that religious parents had a First Amendment free exercise right to opt their elementary-school-aged children out of English Language Arts curriculum that featured “LGBTQ+-inclusive” storybooks that (the Court declared) threatened their ability to educate their children about marriage, gender, and sexuality. The Court gave little weight to the civic purposes undergirding this curriculum, such as “promoting diversity, equity, and nondiscrimination” and providing curriculum that “promotes equity, respect, and civility” by more inclusive representation of the school district’s children and families.
Civic Education in Polarized Times confronts how schools can carry out their civic role at a time of “pernicious” polarization, defined as “division into hostile camps with fierce animosities and distrust akin to political sectarianism or tribalism, by its entrenchment in political dynamics, and by its array of harmful effects” on democratic citizenship, norms, and institutions. (P. 6.) Civic education “has become part of the political tug-of-war.” (P. 8.) There is widespread agreement on the crucial role of educating school children about civics and history, but sharp disagreement over the how and what.
A sobering example is the competing narratives about the January 6th insurrection—a violent effort to stop the certification of President Biden as the legitimate winner of the 2020 election. Some educators called January 6 a “Sputnik moment” for reviving civics instruction (P. 98), referencing the U.S.’s ramped up investment in what is now called STEM in the wake of the Soviet Union’s 1957 launch of a rocket into space. On this logic, a better grounding in basic processes of democratic governance, including elections, might render people less vulnerable to believing conspiracy theories and misinformation—and resorting to violence. Robust civics instruction might counter the troubling version of patriotism that animated the “Stop the Steal” movement and January 6th attack on the Capitol: the narrative that because Trump was “chosen by God” to serve two terms (a belief “immune from factual refutation”), “good Christians” must join the battle to fight the “forces of evil” seeking to hinder God’s plan. Five years later, with Donald Trump back in office, that dangerous version of patriotism continues: in the MAGA narrative about January 6, the insurrectionists are now-pardoned patriots.
I highlight two of the many timely and insightful perspectives that Civic Education in Polarized Times offers on how to engage in civic education given this political landscape. In Civic Education, Students’ Rights, and the Supreme Court, legal scholar Justin Driver argues for a “student-centered approach to civic education” that centers “the historic struggles for students’ constitutional rights.” (P. 101.) Such education would foreground “the major Supreme Court decisions that have shaped the everyday lives of students across the nation” and use those decisions “as a springboard for discussing the broader issues, arguments, and student activism that fueled those controversies.” (P. 101.)
Driver’s inspiration is Chief Justice Roberts’ 2019 “Year-End Report on the Federal Judiciary,” in which Roberts wrote: “By virtue of their judicial responsibilities, judges are necessarily engaged in civic education.” (P. 97.) As an example, Roberts offered Brown, concise enough to be reprinted in major newspapers and provide “every citizen [an opportunity to] understand the Court’s rationale.” (P. 98.) Roberts cautioned that “civic education has fallen by the wayside.” (P. 98.)
Building on Roberts, Driver argues that “the facts of leading cases involving students’ constitutional rights will fascinate and captivate students in a visceral fashion that no other civic-education topic can match,” raising “scintillating” questions about (among other things) whether students’ constitutional rights constrain school authority to limit student protest and speech (including off-campus) or to compel speech, to physically discipline, strip-search, and drug test students, or to ban unauthorized immigrants from obtaining a K-12 education. (Pp. 101-102.) Students would learn about the role of prior generations of young people in standing up for their rights and shaping the constitutional order. They would evaluate the “sharply divergent views” among the Justices about what citizenship for young people means. (P. 106.)
On the one hand, there is the “robust conception” of student citizenship in Tinker v. Des Moines Independent School District and other cases: American schools are “the nurseries of democracy.” As Justice Jackson wrote in West Virginia Board of Education v Barnette, “[t]hat [public schools] are educating the young for citizenship is a reason for scrupulous protection of Constitutional freedoms of the individual…if we are not to strangle the free mind at its source and teach youth to discount important principles of our government as mere platitudes.” (quoted on P. 105.) On the other hand, the Court sometimes espouses a “Report Card Citizenship”: a thinner, “even anemic,” view of citizenship that suggest schools should concentrate on imposing “order” and “discipline,” which are “integral” and “important” to “training our children to be good citizens.” (P. 106.)
Such civic education, Driver suggests, could help to reduce political polarization and increase empathic understanding. (P. 104.) As students engage in “active debate” about the proper scope of constitutional rights in schools in “novel factual scenarios,” they would learn to “disagree with each other’s constitutional views respectfully, and thereby aid our ailing democratic experiments.” (P. 104.)
The tool of debate is also central to the contribution by political scientists Sigal Ben-Porath, Amy Gutmann, and the late Dennis Thompson, Teaching Competition and Cooperation in Civic Education. Given that the politics in which young people will participate “is likely to remain hyperpolarized and competitive for the foreseeable future,” they argue that a civic education focused only on the skill of cooperating for a “common good” cannot meet the task of developing “effective democratic citizens.” (P. 221.) Instead, students should develop “the skills and attitudes of both competition and cooperation.” (P. 222-23.) Further, both competition (as in voting) and cooperation (working together to find common ground) are important components of democracy; each has an ethical dimension, such as “fair play and mutual respect.” (P. 228.)
Classroom debates can be an effective method for teaching competition: while competition’s aim is to win, competition should be “fair,” opponents should not be demonized, and participants should accept the results. Learning effective competition can be motivating and empowering for all young people, and for “marginalized students” in particular: they can learn how to defend their interests by engaging in practices like “nonviolent protect, political campaigning, and turning out the vote.” (Pp. 228-29.)
To teach cooperation for the common good, students could follow a classroom debate over a controversial issues with an exercise of trying cooperatively to “reach a collective decision” about those issues (for example, by drafting and enacting a bill). The authors contend: “by teaching competition, we bring out the difficulties of polarized politics, and by then teaching cooperation, we try to determine how they can be overcome.” (P. 229.) Students also learn about compromise, which requires both cooperative and competitive skills and attitudes. (P. 230.)
This review has provided a small sampling of the contributions included in Civic Education in Polarized Times, which explore topics like the challenges posed for civic education by racial, gender, and socioeconomic inequalities in U.S. schools and society and how best to cultivate more informed and participatory citizenship, including critical reflection about the gap between the Nation’s ideals and practices. I recommend the entire volume to those interested in how to bolster civic education in the current challenging political climate—and the relationship between parents, child, and state.
Jan 27, 2026 Brian Bix
Susan Frelich Appleton & Albertina Antognini,
Abolishing the Family, 61
Harv. C.R.-C.L. L. Rev. __ (forthcoming, 2026), available at
SSRN (Aug. 1, 2025).
There are benefits to thinking about extreme proposals—suggested utopias and radical restructurings of institutions. However unlikely it might be that such proposals are ever put into effect, they help us to think more clearly both about what needs to be changed and about what might yet be feasible. The particular extreme or utopian (or perhaps dystopian) set of proposals Susan Frelich Appleton and Albertina Antognini consider in their recent work is, as their title indicates, “abolishing the family.” While family, in conventional social and political ideologies, is often presented as an ideal, it has also for a long time been the subject of sharp criticism by many feminists and more than a few family law scholars. And, from the perspective of such critics, moderate reforms have turned out to be frustrating, teaching us (as the authors put it) “not only that inequality and its counterpart, privilege, continuously find ways to reassert themselves” (P. 60, fn omitted), but also that many suggested reforms “have failed because they defy core pillars of what families are assumed to be or do.” (P. 61.)
As the authors note (P. 4), the analysis of family abolition broadly evokes the discussion of abolishing marriage associated with Martha Fineman in work such as The Neutered Mother, the Sexual Family and Other Twentieth Century Tragedies and others (see, e.g., the contributors to Anita Bernstein (ed.), Marriage Proposals: Questioning a Legal Status and Elizabeth Brake (ed.), After Marriage: Rethinking Marital Relationships). During the later stages of the same-sex marriage movement, some more conservative voices also urged getting the state out of the business of recognizing marriage (so as not to be forced to give official sanction to same-sex unions). Despite such right-wing arguments joining critiques from within the LGBTQ+ movement and older left-wing arguments against marriage, civil marriage, now expanded to include same-sex couples, is still with us, and with little likelihood of imminent abolition.
In any event, what does it mean to want to “abolish marriage”? Appleton and Antognini discuss a range of ideas and proposals from other disciplines that fall under that label, and show how the proposals tend to aim at certain problems with families and family law: “keeping dependency private, devaluing care, policing families that depart from the prevailing norm, and camouflaging legal constructions as ‘natural’ facts.” (P. 46.) As the authors note, “family law’s participation [in privatizing support] is often difficult to see because it consistently hides its involvement by appealing to nature or how things are.” (P. 20.)
The advocates of those proposals have generally been clear that they were not trying to tell people whom to love or with whom to live (the authors quote one activist in the area, Sophie Lewis, as emphasizing that “‘[m]ost family abolitionists love their families’” (P. 61, brackets in original.)). However, some of the proposals summarized do prescribe certain aspects of family structure, in that they would determine how children were to be raised (according to some proposals, this would be done collectively (Pp. 32-35.)).
One obvious theme to these proposals is that the alternative to delegation to families tends to be a greater role for the marketplace (for example, removing legal penalties for prostitution and greater legal recognition for surrogacy (e.g., Pp. 27-32)) and/or a greater role for the state (e.g., Pp. 42-43). The latter may seem especially dystopian to many these days, as we watch with horror what is being done by and in the name of the federal government and some state governments.
Ultimately, Appleton and Antognini conclude that, as with many utopian proposals, the approaches seeking to remove the special status of families or to remove current requirements and prohibitions in the interactions of partners and parents with their children, tend either to be entirely unworkable or to carry problems even worse than the status quo. The article notes that past experiments with communal care for children “offer[] a cautionary talk about the viability of an arrangement built on the forced separation of parents and children.” (P. 35.) As Appleton and Antognini point out, some of the abolitionist theorists seem unbothered by hard issues left unresolved by their proposals: Sophie Lewis is said to “reject as a ‘bad question’ any inquiry about who has responsibility for care of a dependent or vulnerable individual.” (P. 45.)
The authors conclude (again quoting Sophie Lewis) that “it remains near impossible to ‘imagine the end of . . . the family.’” (P. 61.) Appleton and Antognini praise abolitionist proposals for the way they “expose the family as contingent, and contestable” and undermine rhetoric portraying current practices as natural or inevitable. Such proposals also show, indirectly, “why reform efforts have proven so difficult to implement.” (P. 60.) Given how we think about families and the role the state gives to families within society (like privatizing care), these pre-existing conceptions make it hard to change just one aspect of family law and family life. Abolitionist proposals may be the necessary “first step[s] in being able to even consider alternat[ive] structures.” (P. 61.)
Dec 15, 2025 Josh Gupta-Kagan
Laura Savarese,
The Origins of Family Rights and Family Regulation: A Dual History, 78
Stan. L. Rev. __ (forthcoming, 2026), available at
SSRN.
In the standard story taught in typical Parents, Children, and the State or Children & the Law courses, analysis of parental rights has a clear beginning. In 1923, at the height of the Lochner era, in Meyer v. Nebraska, a case of first impression, the U.S. Supreme Court declared that “[w]ithout doubt” the Due Process Clause protected the right “to marry [and] establish a home and bring up children.” Two years later, in Pierce v. Society of Sisters, the Court recognized “the liberty of parents and guardians to direct the upbringing and education of children under their control.” But, in The Origins of Family Rights and Family Regulation: A Dual History, Laura Savarese demonstrates that the Court did not invent those rights. Rather, those cases followed a string of state court decisions from the end of the Civil War through the Progressive Era that established core legal protections for family integrity. Savarese’s work deepens our understanding of parental rights, helps protect those rights from potential attack, and informs legal advocacy to constrain the present-day family regulation (a.k.a. child protection) system.
Savarese identifies and fills an important gap in conventional understanding of foundational family law doctrines. The crucial rights that the U.S. Supreme Court would eventually articulate were born in parents’ resistance to the early family regulation system’s efforts to take and keep their children. That system empowered private institutions and organizations to house children who were found destitute or had been deemed neglected by their parents or delinquent. The family separations that resulted were largely upheld by state courts as lawful exercises of states’ parens patriae authority (a concept courts uncritically imported from English law), most famously in the Pennsylvania Supreme Court’s 1839 decision Ex Parte Crouse (4 Whart. 9). But, as Savarese points out, after the Civil War, parents began to succeed with state habeas petitions challenging children’s initial or continued commitment to these institutions because parents were denied notice of the charges against them or their children, or that specific cases violated statutory grounds.
These cases established elemental due process rights: procedural rights to notice and an opportunity to be heard on children’s placement and specific allegations (not vague assertions of delinquency or neglect), and substantive rules that parents maintain superior rights to foster parents and the system should often reunify families upon evidence of rehabilitation. (P. 21.) Each of these points is a foundational element of modern family regulation law, ratified by 20th century Supreme Court cases or statutes: In re Gault required notice of allegations against children in delinquency cases, Santosky v. Kramer required “fundamentally fair procedures” in termination of parental rights cases, Smith v. OFFER recognized parents’ superior status to foster parents, and federal law required states to make “reasonable efforts…to preserve and reunify families” (42 U.S.C. § 671(a)(15)(B)).
This litigation also generated some limited victories that also revealed troublesome elements of family regulation law that persist to this day. First, when parents sought to regain custody of children, they won rulings that courts could order children released over institutions’ objections, but that still granted trial courts wide discretion to determine whether and when to reunify families—discretion often used to deny parents’ requests. (Pp. 34-38.)
These cases also exposed the family regulation system’s predominant focus on poor families. The 19th century cases challenged the common law rule that parental poverty abrogated parental rights, leading courts to draw a line between mere poverty and neglect and delinquency. (Pp. 30-31.) That line later informed legislation in some states. (Pp. 53-54.) While these rules establish an important principle—poverty alone cannot justify separating a family—they failed to establish meaningful legal tests for distinguishing poverty from the often-amorphous concept of neglect. More optimistically, Savarese credits 19th century habeas litigation with helping inspire the social safety net expansion via early 20th century Progressive reforms; if poverty could lead to family separations, the state should help alleviate the most extreme forms of poverty.
Finally, these habeas cases indirectly led to the development of a pro-termination of parental rights (TPR) ideology. Some cases challenged the institutions’ efforts to place children for adoption and thereby terminate children’s relationship with their parents. Courts split, with some insisting that parents were entitled to due process before an adoption and others treating parents as obstacles to their children’s interests and upholding adoptions without so much as notice to parents of the adoption proceeding. (P. 48.) As a matter of due process, the former view has largely won out in the modern era. But Savarese aptly notes that the 19th century cases catalyzed the argument that once children are separated from parents, parents’ rights “frustrated efforts to place needy children in new homes” and were harmful to children. Savarese finds that view echoed in the much-criticized Adoption and Safe Families’ Act of 1997’s requirement that CPS agencies seek terminations on an expedited timeline, which has led to tens of thousands of TPRs annually. (Pp. 54-56.)
Savarese’s history also sheds light on two other doctrinal questions that resonate in the 2020s. First, establishing how 19th century courts widely respected parental rights helps explain why parental rights should remain secure post-Dobbs v. Jackson Women’s Health Organization. These “unenumerated family rights” (P. 50) are justified not only out of respect for the Supreme Court’s 1920s precedents (and those that followed) but because they can trace their origins more deeply into history and tradition. (This point builds on other scholarship, including Peggy Cooper Davis’s history of family integrity’s centrality to the 14th Amendment and Christine Gottlieb’s exploration of the “enduring vitality of Meyer and Pierce” post-Dobbs).
Second, Savarese explains how the 19th century cases recognized children’s right to liberty from institutional custody and to live with their parents, a formulation that presents children’s rights as reciprocal versions of parental rights. (P. 24.) Savarese thus provides strong doctrinal and historical support for a key principle: that children’s rights are not in tension with parental rights because the most fundamental children’s right is to be with their parents, supporting more contemporary arguments about children’s right to family integrity and contrary to efforts to use children’s rights rhetoric to drive a wedge between family members. (Pp. 51-52.)
Cite as: Josh Gupta-Kagan,
Before Meyer and Pierce, JOTWELL
(December 15, 2025) (reviewing Laura Savarese,
The Origins of Family Rights and Family Regulation: A Dual History, 78
Stan. L. Rev. __ (forthcoming, 2026), available at SSRN),
https://family.jotwell.com/before-meyer-and-pierce/.
Nov 17, 2025 Philomila Tsoukala
A mother sits at a Child Protective Services office, surrounded by the scents of coffee and nicotine gum. Notices about food aid, housing forms, and a chart of deadlines blur as she struggles to focus. She is unemployed—not addicted or pathologically unstable—simply unable to find stability without family support and public aid. Her fraught relationship with her mother-in-law, who has provided childcare and now serves as kin care under Kentucky’s child protection system, has shifted. The caseworker explains that the grandmother may be recognized as a de facto parent, which would allow the state to close the neglect case, cease reunification services for the mother and foster care training and resources for the grandmother.
This grandmother’s bureaucratic pivot from helpful kin to potential legal parent provides the starting point for Rama Hyeweon Kim’s analysis in Parents, Kin, and the State: Family and Households Between Functional Parenthood and Child Protection. Kim begins by noticing that much of the literature on LGBTQ families and assisted reproductive technologies advocates for the recognition of functional parenthood as a normative good, without much engagement with the potential downsides of such a development. (P. 5.) Her article provides precisely such an in-depth engagement. Kim suggests that the costs of this model are real and uneven. Specifically, functional parenthood can burden parent–child relationships in poor and racialized communities, often plagued by higher-than-average rates of parental incarceration and substance abuse, which she calls “peripheral families” (P. 11), by reshaping power within the family under state oversight. Thus, her core claim is not that functional recognition is always wrong, but rather that its use in child-protection contexts brings distributional consequences that much of the reform literature has not fully considered, “including potentially severe and negative impacts on parent–child relationships.” (P. 1.)
Building on this critique, Kim maps the intersection of functional parenthood with kinship care under child protective services in subsequent sections. Section I outlines the doctrinal field of kinship care, highlighting two domains that are often treated separately: private custody and parentage law on the one hand, and public child protection on the other. While the map is descriptive, it also illustrates the transmission of concepts. Here, functional parenthood—initially designed for private disputes—now crosses the boundary and shapes administrative child-welfare practice. Recognizing this crossing reframes the question: it is not whether functional recognition is good in the abstract, but how it operates when the state is already involved and kin care is part of an ongoing public case.
With this theoretical foundation, Part II shifts focus to Kentucky and provides the article’s empirical and doctrinal core. Kim reviewed 79 appellate cases from 2019 and 2023 where functional custody law was applied and conducted thirteen interviews with attorneys, judges, child protection agents, and policy advocates. (P. 12.) Kentucky’s de facto custodian statute gives a kin caregiver standing equal to a parent once a court finds clear and convincing evidence that the caregiver has been the child’s primary provider of care and financial support for a set period. (P. 34.) On paper, this pathway stabilizes existing placements. In practice, Kim shows, it often arises within or alongside neglect proceedings. CPS increasingly relies on kin as first-line placements through voluntary safety plans or informal diversions from formal foster care. This reliance, together with administrative pressure to achieve permanency and close cases, creates incentives to convert provisional kin roles into legal custody through a private-law route. The file closes, the child stays with kin, and the state withdraws, without the full support, oversight, or reunification services that formal foster care would have provided.
The case study documents this dynamic in appellate decisions and practice accounts, showing the two-way traffic between private and public systems. Voluntary kin placements can lead to private petitions for de facto custodian status, while private suits reshape or interrupt ongoing CPS cases. The agency’s search for kin resources also shifts family bargaining. Parents and kin negotiate under the threat of possible state action, while lawyers and judges frame stability in terms of functional caregiving that can be quickly formalized. The result is not a clear victory for anyone. Children may gain continuity; kin may take on long-term obligations with limited support; parents may see their legal position weakened without the protections and services that come with formal dependency cases.
After tracing the mechanics of these processes, Kim turns to the normative terrain in Part III. Here, she develops a complex account that resists easy resolutions. Functional recognition in child protection, she suggests, can take four distinct paths. It can deliver benefits by stabilizing a child’s home with a caregiver already performing the role. Second, it can impede reunification by formalizing custody before a parent has had a fair chance at services. It can amplify harm by legalizing intra-kin conflict and rendering temporary measures difficult to reverse once formalized as parentage. Finally, it can also mitigate harm by checking agency placements that might otherwise occur without adequate scrutiny. Which path ultimately emerges, Kim emphasizes, depends less on doctrinal language than on local practice, fiscal pressures, and agency incentives. Her point, then, is not to condemn functional parenthood, but to issue a warning about the importance of design and context.
Kim’s analysis builds on and extends two classic frameworks that have shaped the study of family law and poverty. If Jacobus tenBroek revealed the duality of family law—protective for the middle class, punitive for the poor—and Tonya Brito charted the “welfarization” of family law, Kim asks us to see the reverse: a familialization of welfare policy, where the state retreats by delegating its duties to kin networks, placing family responsibility where public support should be. This insight connects doctrinal observation to institutional critique: what appears as empowerment at the micro level may signal withdrawal at the macro level.
From this normative analysis, Kim articulates a concrete reform horizon, even as the article remains primarily descriptive. She suggests narrowing the circumstances in which functional claims can be used in neglect cases, particularly where the parent has not been found unfit and has not received adequate services. To address risks, she proposes tying functional recognition used to close child-protection files to obligations for reunification supports, kinship subsidies, and meaningful judicial oversight. She further urges the creation of exit ramps—such as time-limited orders and periodic review—to prevent administrative closure from resulting in long-term parental loss and to ensure that improvements in parental capacity are taken seriously.
In this important contribution, Kim reminds us that the future of family justice depends not only on recognizing care, but on deciding whose care counts and on what terms.
Sep 17, 2025 Aníbal Rosario-Lebrón
Clare Ryan,
The Public/Private Home,
110 Cornell L. Rev. __ (forthcoming 2025), available at
SSRN (August 10, 2024).
This past June, when the Supreme Court delivered its opinions in United States v. Skrmetti and Mahmoud v. Taylor, it entered a new era in the weaponization of rights against sex, sexual orientation, and gender identity and expression (SSOGIE) equality. In this new era, the Court is advancing its anti-equality agenda by co-opting parental rights to the detriment of minors’ wellbeing and autonomy. It did so by ruling on parental rights in Mahmoud while pointedly refusing to engage them in Skrmetti, thereby reinforcing the law’s entrenched treatment of children as property. To understand how this new weaponization emerged, how its advancement can be halted, and how children’s rights can be advanced, it is indispensable to examine the theoretical foundations and shifts in the doctrine of parental rights that have led to its current form. Clare Ryan’s The Public/Private Home precisely provides such a framework.
Ryan’s forthcoming piece in the Cornell Law Review calls for reexamining the concept of family autonomy and privacy and its derivative doctrine of parental rights in light of the profound transformations in contemporary family life. She argues that the assumptions underpinning the public/private divide that shaped these doctrines no longer hold as they do not reflect lived reality. Ryan highlights that the law’s assumptions regarding where the provision of public goods falls on the family/public dichotomy have been subverted by family practices that have moved many activities, such as work, schooling, and healthcare, into what the law still considers the private sphere and vice versa. For instance, on the other side of the spectrum, through social media platforms, homes have become sites of intense surveillance, data collection, and profit by making private life more visible to the public, including the state. Such transformations, Ryan contends, have profound implications for the doctrine of parental rights.
To prove her point, she establishes how the construct of private home life has informed courts’ rationales about family formation and family autonomy. That framework has inevitably led to a conception of parental rights tethered to the private home and akin to a property rights regime in which parents exercise property-like control over children.
Ryan identifies three core doctrinal assumptions of family autonomy and privacy. The first is that the home is a sanctuary protected from external scrutiny. The second is that home is distinct from the market, where care and domestic labor occur outside market regulation, and where no work activity happens. And the last one is that public goods, such as education and health services, are delivered externally, not inside the home. She argues that these premises no longer reflect lived reality, undermining legal coherence and perpetuating and exacerbating children’s inequality and subordination.
Ryan discusses how remote schooling, telemedicine, work-from-home arrangements, and the momfluencer industry have blurred the boundaries between private and public spheres in the home, making the home simultaneously more public and private than ever before. She then critiques, with particular focus on the parent–child legal relationship, how this dual shift has created doctrinal misfits that contribute to systemic inequality and unjust legal outcomes.
Although Ryan concerns herself in the article with harms such as the lack of surveillance from doctors or teachers on children’s possible abuse or neglect because of remote schooling and telemedicine or with child exploitation in social media platforms, I could not stop thinking about how her theory could help explain the Court’s current framework of parental rights and its weaponization in Mahmoud and Skrmetti. In Mahmoud, the Court held that the government’s establishment of an inclusive LGBTQ curriculum violates the free exercise clause, as it substantially interferes with parents’ ability to raise their children in accordance with their religious beliefs, even if alternatives like private or homeschooling exist. Although framed as a general free exercise issue, the decision hinges on parental rights and not on the children’s own free exercise rights or the right to receive an inclusive education. It does not even acknowledge that minors possess such rights. Similarly, the Court dismisses the state’s interest in promoting equality through public education, subordinating it entirely to parental authority.
These outcomes favoring parental rights over recognizing minors as rightholders and subordinating the state’s interests in promoting an egalitarian society to parental will can easily be explained by the phenomenon Ryan aptly points out in her article. By conceptually privatizing the public good of education based on the family home experience of homeschooling or remote education, the Court increasingly augments the scope of parental rights, effectively forcing the state to abdicate its responsibility to ensure equal treatment and inclusive education for all citizens.
This phenomenon also applies to the Court’s decision in Skrmetti denying review to Tennessee’s ban on gender affirming care for minors based on parental rights, but granting certiorari on equal protection grounds. The Court declined to review the parental rights argument raised by the transgender minors, their parents, and their doctor because otherwise it would have been forced to veer from its anti-equality agenda. If the Court had reviewed the rights of parents to choose appropriate medical care for their children, any consistent application of its parental rights doctrine would have demanded that such a right supersede the scientifically unsubstantiated interest of the state in preventing gender affirming care for minors. In a world where the Court privatizes traditionally-defined public goods such as education, then surely health decisions, in a country with no positive constitutional obligation to provide sanitary services, must logically fall under the umbrella of parental rights. Thus, contrary to the actual Court’s decision, a consistent application of the Court’s parental rights doctrine would have resulted in a victory for parents seeking gender affirming care for their children, as the state’s interest would have had to yield to parental will.
Yet, this positive result would have been at the expense of recognizing children’s autonomy. Even though the outcome would have been for minors to continue with their gender affirming care as they desired, their choice in doing so would have been contingent on their parents’ will. Such a rationale reifies the property-like control of parents over children.
This reluctance or incapacity within the legal system to affirm children’s autonomy, even when advancing egalitarian agendas, underscores the need for a conceptual shift, one that Ryan compellingly illuminates. Based on her discussion on the transformation of the public/private home, Ryan proposes to untether parental rights from the private home and reframe them not as entitlements tied to the children and the location of the activity, but as responsibilities to protect a child’s wellbeing regardless of whether activities occur inside or outside the home.
Ryan’s theoretical intervention adds a compelling new voice to the growing chorus advocating for minors’ autonomy. Her work enriches the scholarly movement to bring children out from under parental control and into public and political life advanced by scholars such as Anne Dailey, Catherine Smith, and Laura A. Rosenbury, and reflected in litigation efforts like Genesis v. EPA. Ryan offers a promising path to reducing disparities and challenging the entrenched subordination of children in the legal family structure. As she notes, realizing this vision will require substantial future practical work. I am eager to contribute to that effort and to incorporate her insights into my forthcoming scholarship on minors’ rights to bodily autonomy and self-determination.
Aug 7, 2025 Rachel Rebouché
Yvonne Lindgren & Michelle Oberman,
Recalibrating Risk Under Dobbs, available at
SSRN (November 5, 2024).
Readers familiar with the popular South Korean television program, Squid Game, will appreciate the Jot title’s reference to a child’s game turned into a fictional life-or-death contest. When a light is green, players are free to advance across a field toward a finish line. When the light is red, players must freeze in their positions, as one movement leads to “elimination” from the game.
In their important and novel article, Professors Lindgren and Oberman deploy the terms “green light” and “red light” to help describe physician decision-making with respect to pregnant patients in states that ban almost all abortion – green light decisions are those that are legal; red light decisions are those that would fall afoul of the law. The consequences of acting in “the red,” according to ban states’ laws, can include prison sentences, hefty fines, and loss of professional license. Though not death, as in the program Squid Game, contravening an abortion ban can have severe consequences.
Those potential consequences, in combination with vague statutory language, have triggered a retreat from the previous standard of care when treating pregnant patients. Lindgren and Oberman focus their attention on what they term “yellow light cases” – the care doctors routinely provided to pregnant patients prior to Dobbs, particularly in managing pregnancy complications, that seems risky today because its legality can be difficult to ascertain. This retreat has led to patients’ injuries and deaths that have been the subject of headlines but have not resulted in either patient compensation or provider punishment.
Abortion opponents have argued that the language of bans is clear and that the problem is that doctors refuse to provide care, hiding behind claims of legal ambiguity. Instead of revising the bans, some contend that doctors should be sued for medical malpractice. Tort theory suggests that medical malpractice lawsuits can play a public law function by clarifying the vagueness of law, or shrinking the yellow zone, when lawmakers will not intervene. Can the problem of delayed and denied care be remedied by suing doctors? Recalibrating Risk asks and answers that question with a decisive no. The authors explain that malpractice lawsuits will not solve the problems of delayed or denied care and may exacerbate patients’ ability to gain access to quality, appropriate care. Instead, they suggest strategies that depend on hospitals, health systems, and professional associations to guide providers on providing evidence-based, ethical care.
In this vein, Recalibrating Risk is the first law review article to ask how medical malpractice might address yellow light decisions about abortion care when physician action is likely legal but not clearly so. As the authors note, this inquiry is made against the backdrop of the profession’s aversion to liability, which manifests in many contexts as “defensive” medicine (or providing more care than necessary to avoid liability). In the current abortion context, doctors practice “hesitant” medicine, providing less care than may be optimal to avoid civil liability as well as criminal punishment. Such an aversion is heightened for the healthcare providers, like ER doctors, who do not typically have the same experience and training as obstetricians in abortion or miscarriage care.
The authors make clear that apprehension and hesitation are warranted. Medical professionals are under stress, particularly in ban states, and responding to risk under current abortion laws will have profound downstream effects. Since Dobbs, there have been decreases in applications to residency programs in ban states, as well as movement of physicians from ban states or from the field. I wrote about the changes in medical training, specifically residency training for OB/GYNs and family medicine providers, and how educational shifts post Dobbs could shape the future of care. It may be too soon to understand the connection between residency education provided today, providers’ navigation of abortion bans exceptions, and what that might mean for care deserts, provider liability, and the standard of care. Despite this uncertainty, the concern remains that there may not only be hesitation to deliver abortion care but also no one in a hospital (not to mention in an ER) who is trained to do so.
The article thus seeks to explain whether law and policy, including medical malpractice actions, can reduce the risk of making yellow light decisions. For one, the authors assess the likelihood of exposure to civil or criminal liability. They conclude that yellow light cases would not be the kind lawyers or prosecutors pursue, potentially even in the most-restrictive abortion states. On the civil side, the combination of tort reform caps on damages and the nature of contingency fees mean that few lawyers will take cases against doctors for making legally ambiguous, but likely justifiable, decisions. Litigation is too costly, and the payoff is too small. On the criminal side, prosecutors may be unlikely to pursue a case given that judges and juries will be sympathetic to the mistaken, but not negligent or willfully unlawful, doctor. The authors assert that prosecutions of physicians who perform abortions when a pregnant patient’s life or health is in danger, for instance, “would be legal longshots, and might also be controversial and politically unwise.” (P. 5.)
That said, the possibility that healthcare professionals will not face punishment may not be enough to change the hesitant practice of medicine. For Lindgren and Oberman, change could be the responsibility of healthcare institutions and professional organizations, issuing more guidance or information, as well as the result of litigation against those institutions but not healthcare providers. The authors offer examples (and counterexamples) of when guidance empowers health care professionals to determine what is lawful even if potentially unclear. For example, relaying information to patients about seeking legal abortions out of state is not a yellow-light situation; often, healthcare professionals perceive that law makes such disclosure risky when it in fact does not. (P. 12.) A few issues, however, remain for future thought.
One possibility is that institutions will issue protocols and guidance that constrict rather than expand the care offered. Many abortion bans, as written, do not match the medically accepted standard of care, as has been apparent in emergency situations. And here is a dilemma of the paper. If protocols and guidance are to track the current standard of care, then that advice might run afoul of state law. Though physicians are bound by both ethical or legal duties, the sanctions that result differ markedly, with violation of the law potentially resulting in fines or jail time. Because of these consequences, there is reason to believe that were hospitals and healthcare entities to issue guidance, they would draw lines to increase red light, not green light, decision-making to minimize the chance of legal liability.
The end goal may not be just “uniformity and predictability,” (P. 36) but to change what matters to the organizations issuing guidance. To that end, the authors contemplate corporate negligence claims against healthcare institutions or new emergency adjudicatory processes. Liability for the failure to meet an institution’s duty to provide adequate care or exposure to court hearings to determine legality on an expedited basis (like a judicial bypass hearing for minors seeking abortions without parental involvement) might be two avenues. But they will, of course, incur their own costs, which could be passed to patients either directly or indirectly.
I find promise in the authors’ description of “quiet systems,” such as helplines and networks working on the ground, to clarify an evidence-based standard of care and to reassure providers of best practices. (P. 43.) As the authors convincingly show, although the medical malpractice system will not disappear, it is a mistake to believe it will fill the void of legislative reform and institutional accountability. But, to meet this moment, diverse levers of influence need to be pulled both to shape post-Dobbs practice as well as providers’ perception of and tolerance for risk.
Jul 14, 2025 Dara E. Purvis
In June of 2025, Secretary of Health and Human Services Robert F. Kennedy, Jr. told a legislative committee that his agency would be working towards a goal of every American wearing a device tracking information about the wearer’s body and health within four years.
One assumption underlying RFK Jr.’s campaign is that more information is always helpful – but what if the health information you learn warns of elevated risks that you can do nothing to prevent? Even further, what if you never asked for the information at all? In Poked, Prodded, and Privacy: Parents, Children, and Pediatric Genetic Testing, Allison M. Whelan incisively explores these questions in the context of genetic testing, explaining multiple ways that the privacy rights of children can be violated if their parents consent to genetic testing on their behalf. Professor Whelan’s analysis also illuminates broader dilemmas about the rights of children and authority of parents playing out in multiple troubling ways, including denials of gender affirming care to transgender youth.
It has never been easier to get medical information about yourself, whether it is through the “wearables” HHS will apparently be advertising or genetic testing that can help to identify future health risks. Professor Whelan begins her article with a well-known example of genetic testing that can alert the patient to future risks they may be able to avoid: Angelina Jolie’s genetic testing that revealed a genetic mutation indicating an extremely high risk that she would someday develop breast or ovarian cancer. In response, over the next few years Jolie had a preventative double mastectomy and hysterectomy. Jolie, who had already lost her mother and other close female relatives to breast and ovarian cancer, understood the significance of her test results and was able to take action in response.
Professor Whelan focuses, however, on patients in a very different position: children who undergo pediatric predisposition genetic testing (PPGT) revealing information that they cannot act on in childhood. Such testing indicates one of two things. First, a child has a genetic mutation that means they are certain to or are at a much higher risk of developing an adult-onset disease with no means of prevention or treatment. Professor Whelan uses Huntington’s disease as an example: genetic testing reveals whether a person carries the single genetic abnormality that causes the disease. There is currently no treatment that prevents or slows the progression of Huntington’s, only some treatment that may lessen the severity of symptoms once they appear. Second, PPGT could reveal a risk (but not a certainty) that the patient may develop an adult-onset disease that has treatment options, such as Jolie’s greater cancer risk. Parents consenting to such testing may hope that having information early means that their child will take preventative measures like Jolie’s mastectomy very early in adulthood, hope that other health choices in childhood might delay the onset of a disease, or simply believe that knowing risks earlier would allow their child to mentally and emotionally prepare for future health changes. But the information drawn from PPGT that Professor Whelan focuses on does not indicate any medical treatments or specific behaviors that the parents would direct while their child was still a minor.
The center of Professor Whelan’s concern is the pediatric aspect. Although it is routine for parents to consent to medical care for children, PPGT has extremely limited utility and significant risk, particularly to the privacy rights of the child, including rights against compelled disclosure of private information, unreasonable search and seizure, and bodily autonomy. The right of parents to direct the care of children has been vindicated in a number of Supreme Court cases, as Professor Whelan traces. Furthermore, she highlights that particularly in early cases, the Court largely dismissed any rights held by the child in favor of focusing on the conflict between the parent’s authority and the state’s justification in intervening on behalf of the child. In a few limited contexts, however, the Court has at least hinted at the child’s interests. In Elk Grove Unified School District v. Newdow, for example, the Supreme Court noted that a student whose father objected to her reciting the Pledge of Allegiance in school had “constitutionally protectible interests” that might be in conflict with the interests of her father.
Professor Whelan combines this implication of at least some rights held by the child with the Court’s reasoning in Cruzan v. Missouri Department of Health. There, the patient was an adult, but one incapable of directing her own medical care because she was in a persistent vegetative state. The Supreme Court affirmed the Missouri State Supreme Court’s decision refusing to allow her parents to remove life-sustaining measures, but not because no decision-makers on behalf of an incapacitated person could ever withhold treatment. Rather, the Court held that even assuming that the liberty right includes a decision to decline life-sustaining medical treatment, Missouri’s statute requiring clear and convincing evidence that the incapacitated patient would make such a decision if they were competent to do so did not violate the liberty right. Professor Whelan argues that this perspective has a corollary in the context of PPGT – where the Cruzan Court looked backward to ask what the previously-expressed preferences of the incapacitated person were, any use of PPGT should look forward to ask whether the parents can know whether their child would consent to such genetic testing in the future. Just as the Cruzan court concluded that the patient’s parents could not consent to removing life support because they weren’t sure enough of the patient’s preferences, Professor Whelan concludes that because parents cannot be sure of their child’s future choices around genetic predisposition testing, they should not be able to consent to PPGT.
In the rest of the article, Professor Whelan builds out how a right to future privacy could help guide such a forward-looking decision. Because minors themselves “should possess the primary right to control (1) whether they receive PPGT, (2) whether and how they act on the results, and (3) whether they share the results and with whom,” (P. 1270) any decision to undergo PPGT should not be made by a child’s parents. She argues that the harm of knowing and sharing the results of PPGT cannot be undone – once disclosed, the bell of test results cannot be un-rung. By contrast, because no actions can or should be immediately taken in response to PPGT results, no utility or urgency outweighs the harms to informational and decisional privacy. Given this imbalance, Professor Whelan argues that consent to PPGT should only be given by the child themselves once they are capable of directing their own medical care. Her analysis is admirably nuanced, acknowledging the potential misuses of such a right to future privacy and how the balancing would shift if further medical innovations indicate that preventative steps could be taken during childhood.
Professor Whelan intends her article to lay conceptual groundwork and begin, rather than end, discussion. It is this sparking and reframing of debates in other contexts that may be most valuable – PPGT, while a fascinating jumping-off point for her normative arguments, is, as she acknowledges, a moving target as medicine and technology develop and make such tests more available and more comprehensive in their results. Her articulation of the right to future privacy, however, is useful in a variety of scenarios in which a child’s interests potentially diverge from their parents as well as their state government. Professor Whelan uses the example of gender affirming care for transgender children in a few places in the article to illustrate how current law frames medical care through a lens of parent, child, and state as potential decisionmakers who sometimes come into conflict, a subject I have previously written about. We share a concern for the absence of claims brought squarely on behalf of the children, rather than their parents or doctors. The right to future privacy can be extended further than Professor Whelan’s discussions within this article, moreover, to help illuminate a particular harm of statutes that deny gender affirming care, particularly the denial of puberty blockers: the privacy of that child later in life.
It is not the goal of every transgender and nonbinary person to “pass” as a cisgender person, nor should it be. But it is the goal of some transgender people that their physical body express their gender identity, and puberty blockers make that goal more attainable. The impact goes beyond the copious evidence that trans youth who have access to puberty blockers have better mental health outcomes, as well as the greater risks of harassment and violence to which trans people (particularly women of color) are subjected. Trans children know what puberty blockers are, know what they do, and know that if denied that care, their bodies will undergo permanent changes during puberty that they do not want. As Leelah Alcorn, a transgender girl who tragically died by suicide in 2015, wrote in a Tumblr post scheduled to go online after her death, “The longer you wait, the harder it is to transition. I felt hopeless, that I was just going to look like a man in drag for the rest of my life.” Denial of puberty blockers is a harm that transgender youth may not be able to remedy even if they are able to access gender affirming care after they are adults.
The result, as Leelah Alcorn described it, is a worry that their body will never represent their gender identity. And growing up in the current political climate, it is natural that transgender youth would view public identification of themselves as trans as negative, even dangerous. The harm of denying gender affirming care thus includes a dimension of Professor Whelan’s right to future privacy: a right to choose whether or not to disclose one’s transgender identity in the future.
This brief review obviously only scratches the surface of one implication of Professor Whelan’s article, but demonstrates the rich analysis that her groundwork supports. Not only does she educate the reader about PPGT specifically, but her conceptual work explaining the right to future privacy is one that could help inform discussion of children’s rights at a time that novel approaches are particularly needed.
Cite as: Dara E. Purvis,
The Right to Children’s Future Privacy, JOTWELL
(July 14, 2025) (reviewing Allison M. Whelan,
Poked, Prodded, and Privacy: Parents, Children, and Pediatric Genetic Testing, 109
Iowa L. Rev. 1219 (2024)),
https://family.jotwell.com/the-right-to-childrens-future-privacy/.
Jun 6, 2025 Naomi R. Cahn
Shanta Trivedi,
The Hidden Pain of Family Policing, available at
SSRN. (February 6, 2024).
In one of my first jobs after law school, I worked in a legal services office, representing parents who had been accused of abuse and neglect. Throughout my time, I witnessed their struggle to navigate the complexities of legal proceedings, the inability of the public welfare system to provide the requisite support to the entire family, the pain that my clients experienced in losing their children, and the overall trauma inflicted on parents by a system that claimed to protect their children.
When I read Shanta Trivedi’s The Hidden Pain of Family Policing, I found it to be a powerful intervention in ongoing conversations about, and critiques of, family regulation, justice, and systemic reform precisely because of the article’s focus on parents. Others have argued that, as currently structured, the child welfare system (or what is now frequently labelled the “family policing system”) functions less as a protector of children and more as a carceral technique for surveillance and separation of marginalized families. Trivedi observes that the system relies on an overly simplistic demonization of parents. She calls for a radical rethinking of this system to change attitudes towards parents, emphasizing community-based support, the importance of meeting basic material needs for families, and the adoption of alternative perspectives, including transformative justice and abolition. (P. 51.) Trivedi achieves the article’s goal to “comprehensively examine the wide-ranging effects that family policing intervention can have” by examining “the behavioral, emotional, mental, physical, and social health of parents.” (P. 7.)
At the heart of the article is a critical and often overlooked insight: the family policing system, while purportedly designed to protect children, inflicts profound and lasting harm not just on the very families it targets but specifically on parents. Trivedi uses the term “hidden pain” to describe the psychological, emotional, physical, and social consequences experienced by parents whose lives are disrupted, and often devastated, by state intervention that is justified as protecting their children. These consequences—ranging from mental health deterioration and emotional trauma to stigma, housing instability, and loss of employment—are rarely acknowledged in public discourse or legal proceedings.
The article is nicely organized around this central theme. Part I documents this otherwise-hidden pain, showing the impact on parents from state surveillance of their families. Part II explores the potential explanations for the comparative lack of scholarly focus on parents, suggesting that one reason is “because of who society perceives them to be,” while another is because the child welfare system is focused on protecting children, not their parents. (P. 32.) It discusses – and then undermines – the stereotypes about such parents. And it shows the ironic nature of the conflict between “the idea that children need to be saved from their parents” and the jurisprudential deference typically given to parental decisionmaking. (P. 47) That savior mentality, however, means that children are removed not necessarily because they are unsafe but because state officials fear harm to the children, even though that means “parents are left to suffer as a result.” (P. 49.)
In this Part, Trivedi is particularly effective in demonstrating how this binary conception of “good” versus “bad” parents serves to rationalize the system. Drawing from both case law and anecdotal accounts, she argues that this reductive framing allows the law to ignore or dismiss the suffering of parents, especially those who are low-income, Black, Indigenous, or otherwise marginalized. These parents are often presumed unfit not because of specific harm they have caused, but because they are burdened by “additional stereotypes in a world obsessed with white, upper, middle-class notions of parenting.” (P. 32.)
What sets this article apart is not just its critical review of the harms to parents, but also the humanity which Trivedi brings to the topic. Trivedi forefronts the voices of impacted parents, using stories collected from a variety of sources to highlight the structural violence of the system. For example, she quotes one mother who wonders, “‘Am I still a parent. . . . People who don’t know the situation are like, ‘Have you got any children? Sometimes I choose to say no . . . .’” (P. 18.) Another ponders how to move forward when “‘[her] whole life has been about raising these kids and being there for my kids.’” (Id.) These narratives are not presented as isolated incidents, but as representative of a broader, patterned injustice perpetuated by a system that surveils and punishes rather than supports and nurtures. The inclusion of these personal accounts bridges the gap between academic discourse and lived experience.
In the final part of the article, Trivedi explains that to reduce the overall harm of the family policing system requires not just policy changes that recognize the injuries that the system inflicts on parents (as well as children) but also that rewrite the dominant legal and cultural narratives around parenting, state surveillance, and the meaning of child welfare. Her proposals include limiting unnecessary investigations by replacing mandated reporting with mandatory supportive measures for parents and children (P. 55), recognizing the relationship between poverty and neglect, reducing family separations, enhancing procedural protections for parents, and investing in community-based support systems that address poverty and structural inequality rather than punishing it. She argues convincingly that these reforms are not only legally and ethically necessary, but also essential to restoring trust and justice in communities that have long been over-surveilled. In centering parents’ voices, the article provides an alternative perspective on family protection and emphasizes the real-world impact that policy decisions seemingly focused on children also have on parents.
Ultimately, The Hidden Pain of Family Policing challenges legal professionals, policymakers, and scholars to rethink how we protect children and support families by putting the parent back into the family protection system. To accomplish this goal, Trivedi emphasizes the need for a paradigm shift away from a carceral mindset and towards a narrative that does not rely on dismissive stereotypes about parents but instead respects their autonomy and dignity. Trivedi argues that a narrative change could affect the approaches of workers within the system, lawyers, and judges. Appreciation of context could help judges deciding whether a parent has fulfilled the elements of a reunification plan to contextualize “the effects of separation on a parent that may have hindered their ability to comply.” (P. 65.)
To be sure, the article might have offered even more specificity about the pragmatic and political difficulties of changing the narratives and advocating for consideration of parental interests. But by showing how foregrounding the interests and vulnerabilities of parents can redirect child protection, Trivedi provides a critically important perspective on fundamental flaws in the existing system and opens up space for a more holistic and just approach to family well-being.
May 8, 2025 Albertina Antognini
Laura Portuondo,
Gendered Liberty, 113
Geo. L. J. __ (forthcoming), available at
SSRN (Mar. 11, 2024).
The family law canon is in flux. Much of the conversation has rightly focused on Dobbs v. Jackson Women’s Health Org., 597 U.S. 215 (2022), which narrowed the scope of substantive due process to exclude the right to obtain an abortion. But there is also Fulton v. City of Philadelphia, 593 U.S. 522 (2021), where the Supreme Court found that the city’s decision to terminate its contract with a religious agency for not certifying same-sex parents as foster parents violated the agency’s free exercise rights. And 303 Creative v. Elenis, 600 U.S. 570 (2023), which interpreted the First Amendment’s freedom of expression to protect the religious beliefs of a website designer who refused to create wedding websites for same-sex couples, overriding a state public accommodations law in the process.
These various cases addressing different clauses of the Constitution are broadly united insofar as they portend the Court’s conservative turn in family law and beyond. Yet Laura Portuondo’s forthcoming piece, Gendered Liberty, shows that these cases are more than fellow ideological travelers—rather, they reflect the Supreme Court’s specific and singular understanding of gender. What Dobbs, Fulton, 303 Creative, and others do, is “consistently ensure protections for conduct that enforces traditional gender norms and actively undermine statutory conduct that resists them.” (P. 4.)
It has been obvious for some time now that the Court is expanding First Amendment protections for free exercise and free speech; it is also pulling back from a more robust interpretation of the Fourteenth Amendment. Portuondo’s novel claim, and core contribution, is to argue that this expansion and contraction are related: “[t]hese doctrines work together to affirmatively and artificially subordinate the autonomy and self-determination of those who would defy gender stereotypes to that of those who wish to enforce those stereotypes.” (P. 7.) Thus, the Court’s interpretation of the First Amendment enforces gender conformity by providing protection to those who believe in traditional gender norms, while its interpretation of the Fourteenth Amendment denies constitutional protection to those who engage in gender-nonconforming conduct. Moreover, these doctrines work in conjunction to erase gender altogether, “to launder controversial judgments about the value of gender conformity into seemingly neutral narratives about constitutional liberty.” (P. 7.)
Portuondo offers up the notion of “gendered conduct,” or “conduct linked to a person’s gender identity” (P. 6), which the Court mostly fails to protect, as a parallel to conscientious conduct, or “conduct linked to a person’s religious or moral identity” (P. 9), which the Court zealously safeguards. This direct comparison helps to emphasize the extent of the Supreme Court’s differential treatment. So what exactly constitutes gendered conduct? Portuondo defines it by reference to regulations that “enforce social stereotypes about people . . . with a particular gender identity” or that “disparately harm people . . . with a particular gender identity.” (P. 6.) Gendered conduct can therefore include “pregnancy, abortion, same-sex intimacy, motherhood, gender transition, or something else.” (P. 6.)
By focusing on conduct, Portuondo effectively inures herself to criticism that her argument essentializes gender, or presumes that certain characteristics are innate or inherent to any gender. She understands gender identity to gain meaning from performance and to depend on socially sanctioned scripts, or their subversion, for significance. Throughout her piece, Portuondo calls on pregnancy as paradigmatic of gendered conduct. It is a generative example in more ways than one. Pregnancy is a physiological process, which easily lends itself to biological essentialist arguments that equate pregnancy with gender, or that treat pregnancy as a real difference that warrants differential treatment. The Court in Muller v. Oregon, 208 U.S. 412, 421 (1908), does both, relying on “matters of general knowledge” to reason that “woman’s physical structure and performance of maternal functions place her at a disadvantage in the struggle for subsistence.”
Pregnancy, however, is not so straightforward. It carries varied meanings depending on whether it is performed, how, and by whom. As memoirist and cultural critic Maggie Nelson has submitted: “How can an experience so profoundly strange and wild and transformative also symbolize or enact the ultimate conformity?” Is there not “something inherently queer about pregnancy itself, insofar as it profoundly alters one’s ‘normal’ state, and occasions a radical intimacy with—and radical alienation from—one’s body?” What matters to Portuondo is identifying the ways that law limits who gets to choose pregnancy and under what conditions. It predictably fails to protect, or even to register, inter alia, white women who seek to end their pregnancies, transgender men who are pregnant, black women who want to be mothers, or anyone who inhabits more than one of these identities. (Pp. 33-34.) In Muller, it was not pregnancy itself, but the Court’s assumption that all women were or would become pregnant that made it so that they were “at a disadvantage in the struggle for subsistence”—by upholding a state law limiting their ability to work on the same terms as men.
Because Portuondo delegates the definition of gendered conduct to external sources of law and social meaning, she has to make a case for how such conduct is also important to one’s internal, subjective sense of self. (P. 38.) Portuondo argues that protecting gendered conduct—like the Court currently protects conscientious conduct—would promote individual liberty for everyone, especially for those with marginalized identities. (P. 39.) The payoff of setting up this tight analogy is that it compellingly shows how the principles of liberty and autonomy the Court embraces for conscientious conduct are also at stake for gendered conduct. Portuondo details the many ways the Court has strengthened its support of conscientious conduct by, for instance, holding laws unconstitutional that “devalue” religion (instead of engaging in a discriminatory purpose determination) (P. 13), or finding that such laws automatically fail under a “strictest scrutiny” standard. (P. 16.) Adopting this more expansive read would mean that laws that “devalue” the interests of individuals with a given gender identity, as laws that restrict abortion do, would also be unconstitutional. (Pp. 35-36.) That the Court fails to reason in its Fourteenth Amendment decisions as it does in its First Amendment opinions is that much more egregious.
I am curious, however, to what extent Portuondo’s argument that gendered conduct merits constitutional recognition depends on conscientious conduct being granted such sweeping immunity. Do we need to accept the latter as is, in order to acknowledge the former? Or can criticisms of the Court’s First Amendment jurisprudence coexist with Portuondo’s proffers to shore up the Fourteenth Amendment by relying on it as a template? These questions might just be the inevitable result of a project that both critiques current First Amendment jurisprudence and relies on it as a potential alternative framework of analysis.
Portuondo’s aim to render visible—and legible under the Supreme Court’s own reasoning—the ways that liberty is implicated for gender-nonconforming individuals is crucial, even if “the Supreme Court may be unwilling to listen.” (P. 55.) Although Portuondo’s vision of the Fourteenth Amendment might never materialize, she has articulated exactly why—because of the Court’s one-sided protection of traditional gender norms. Her piece ably shows that this conclusion is anything but natural, or neutral. What the Supreme Court has fashioned is a “gendered liberty” which “recognizes the enforcement of gender norms as a fundamental freedom and denies that defiance of such gender norms has anything to do with freedom at all.” (P. 53.) In reading gender back into the Court’s opinions, Portuondo’s article shows how the law actively enforces a contestable yet consistent definition of liberty—by limiting who gets to claim it.
Cite as: Albertina Antognini,
Whose Liberty?, JOTWELL
(May 8, 2025) (reviewing Laura Portuondo,
Gendered Liberty, 113
Geo. L. J. __ (forthcoming), available at SSRN (Mar. 11, 2024)),
https://family.jotwell.com/whose-liberty/.
