Meghan Boone, Lactation Law
, ___ Calif. L. Rev.
___ (forthcoming 2018), available at SSRN
If one reason that women have been held back in the workforce is difficulty reconciling caregiving responsibilities and work-related duties, then one obvious method of reform should be to require employers to accommodate caregiving, particularly those forms of caregiving that are disproportionately or exclusively fulfilled by women. For example, because a typical full-time work schedule is not conducive to a new mother’s schedule of breastfeeding or pumping breast milk, many women are forced to prioritize work over breastfeeding. In response, both state and federal laws require employers of a certain size to accommodate new mothers returning from maternity leave by providing them with breaks and a suitably private area in the workplace to pump breast milk, allowing them to return to work and continue to feed their babies breast milk. Surely a win for feminism and facilitating women’s employment choices, right?
In her forthcoming article Lactation Law, Meghan Boone answers no, at least as such statutes are currently written. From the opening paragraphs, she poses a startlingly counterintuitive example of a Maine teacher whose child was stillborn. In the following days, she began lactating, an understandably traumatic process for someone mourning a stillbirth. As she grieved, she learned of nonprofit organizations that collected donated breast milk and distributed it to babies who would otherwise not be fed breast milk and decided to participate. The school where she worked, however, refused to accommodate her pumping breast milk because the Maine statute that required employers to accommodate lactation only applied to mothers nursing or pumping milk for their own children. Because the teacher’s breast milk would be donated to other babies, the school was not required to accommodate her desire to pump breast milk while she was at work.
From this difficult puzzle, Boone identifies a troubling feature of statutes protecting the right to pump breast milk at work or breastfeed in public: such laws do not protect women qua women. They protect infants, justified by the current medical opinion that infants fed breast milk enjoy health advantages that are not available to formula-fed infants. The significance of breastfeeding and pumping breast milk, in other words, has little to do with the lactating woman. Rather, lactation is a service that a mother provides to her child.
This may seem like a distinction without a difference, but Boone persuasively outlines how legal protections for lactation reject decisions that characterize breastfeeding as an autonomy interest that shapes women’s decisions about how to mother, and instead underscore societal perceptions of what mothers should be. Employers need only accommodate women who wish to pump breast milk for the benefit of their own infant children, ignoring a small but conceptually significant group of women who want to donate breast milk, hope to pump breast milk for the benefit of an adopted child, or want to feed their child breast milk beyond infancy.
Similarly, statutes protecting the right of mothers to breastfeed in public often specify that the woman must be breastfeeding her own infant. Even further, the laws that supposedly support breastfeeding contain implicit judgment of how women breastfeed in public, noting that the act of breastfeeding must be undertaken “with discretion.” Fifteen states attempt to accommodate lactating mothers by exempting them from jury duty rather than actually facilitating lactating mothers serving this critical role within American civic life. (And even when such accommodations are available, they are often stronger in theory than in practice. Earlier this year, Professor Judith Miller sued Chicago’s Daley Center for telling her to use the men’s restroom to pump breast milk when she appeared for jury service.)
Boone argues that these regulations make the benefits of breastfeeding accommodations contingent on compliance with cultural and societal expectations of motherhood: a new mother who hopes to discreetly breastfeed or pump breast milk for the benefit of her own infant child might be accommodated, but other women with other needs will be unprotected. Society will accept only a narrow conception of breastfeeding, and only for the benefit of a biologically-related infant child. It is not the woman’s choices that are accommodated, but the perceived interests of the infant. Boone’s point was starkly illustrated when I saw her present an earlier draft of the paper at a legal conference. After her presentation, a series of male professors argued that if lactation laws were more protective of female employees wishing to lactate, women would use such laws as an excuse to shirk work duties for extended periods of time, or when they were not actually new mothers. In this view, lactation laws must be narrowly proscribed for only the most compelling benefits to infants, lest female employees throughout the workforce take advantage of a special right to get extra breaks at work.
On this reading, Boone argues, the current state of lactation law further entrenches gendered expectations, which, at least in some respects, is worse than having no lactation law at all. Existing statutes reinforce the idea of breastfeeding as something that women should do if they are the right kind of mother, but not for too long, and not in ways that fall outside of the norm. Boone proposes fundamental changes to lactation law: focusing on the physiological experience of lactation rather than a maternal relationship, removing the justification tied to an infant biologically related to the lactating woman, and recognizing that promoting women’s health is also a public goal supported by lactation law. Her reforms are a thoughtful and comprehensive solution to the deep-rooted issues with current flawed protections of lactating women. My only quandary is that Boone’s demonstration of the gender and maternal stereotypes embodied in lactation law is so thoroughly persuasive that it makes the prospect of reform seem very unlikely.
Political polarization is so endemic in the United States today that we are all becoming experts in it. The compilation of moral, strategic, and tactical weaponry on either side of a deeply polarized issue is an art form in its own right. Once more or less limited to the “culture wars” issues of family and sexuality—the bread and butter of this Jotwell page—the right/left polarization of U.S. political culture has exploded into every issue touched by a hyper-active president who thrives on conflict. Maintaining a taste for critical engagement, while staying morally alive and strategically and tactically mobile, has gotten a lot harder since November 8, 2016.
Now comes Carol Sanger with a book about the premier culture wars issue—abortion—in which she strives to engage the polemics that beset the topic without being spoken by them. Sanger’s own “position on the issue” is clearly pro-choice, and she is sometimes willing to call out the other side when she thinks they are being cruel or acting in bad faith. But About Abortion: Terminating Pregnancy in Twenty-First Century America repeatedly pushes beyond its own polemical moments to engage dimensions of pregnancy and abortion so complex and surprising that they defy classification in the settled pro and con camps. “Pro-choice people are not murderers and pro-life people are not idiots.” (P. xiv.)
Thus, the first chapter offers one of Sanger’s most hopeful visions for the pro-choice cause: that the secrecy with which so many women guard their abortion history might melt away, allowing the debate to be conducted without the deeply distorting consequences of their massive silence. Sanger argues that the legal privacy of abortion law has morphed, in our culture, into secrecy that is often motivated by a recoil from the shame and stigma that attach to many women whose abortions are disclosed. She returns to the issue in the last chapter, where she compares this abortion silence with the crucial role that coming out played in the struggle for breast cancer treatment, for AIDS and HIV prevention and response, and for LGBT liberation. From there, she segues to reflections on Gordon Allport’s studies showing that racial integration—provided that racial characteristics were visible—reduced racial prejudice and stigma; and then travels to recent studies showing that women were more likely to disclose their miscarriages than their abortions, and more likely to disclose their abortion history to people expected to be supportive rather than to those who could be expected to react with judgment.
Sanger then reports that disclosing one’s abortion history can provide abortion opponents with a more nuanced understanding of why someone would choose an abortion. As these same studies determined, people to whom abortion secrets had been disclosed had a more accurate idea of the number and characteristics of women who have had abortions. For instance, they knew that many women who have had abortions are already mothers and/or identify themselves as religiously affiliated, defying the stereotypes of the “godless” woman and the woman who doesn’t like children. Accordingly, the final chapter ends with a rising tide of hope that the growing practices of abortion disclosure can transform the political atmosphere in which the abortion controversy resides, just as gay men and lesbians’ coming out one by one, but eventually en masse, transformed the possibility for their partial emancipation.
But Sanger is ever-attentive to the costs of this pathway. She wonders whether it is right to ask women to shoulder this burden; remembers that pro-gay outing campaigns applied moral and political pressure that overrode some people’s very deep and value-laden motives for living in the closet; acknowledges that visibility campaigns typically valorize only some of the invisible group, implicitly accepting continuing stigma for other group members; and examines the complex intermediate effects of an “open secrets” regime in which knowledge is both widely dispersed and persistently disavowed. En route to considering the downsides of her own most hopeful prescription, Sanger manages to expose the sheer complexity of abortion as a practice and as a controversy. Sanger’s goal is to attenuate the stigma not so that abortion will be evacuated of moral complexity, but so that the real moral struggle can take place in the open.
My favorite chapter—You Had Body, You Died—is a meditation on the ultrasound image of a woman’s fetus. Many states require women seeking an abortion to undergo an ultrasound first, and some go further to require the woman to listen to a description of fetal anatomy and gestational age delivered by a physician or technician. Ultrasounds are thus not only a medical but a legal technology. They have “law in action” legality also, as judges hearing judicial bypass petitions often consider a minor applicant’s willingness to examine the ultrasound image to be a sign that she is sufficiently mature to make the abortion decision for herself, so minors’ lawyers advise them to do it, and so they often do.
Ultrasounds provide Sanger with the opening to reflect on one of the pro-choice movement’s most resented passages in the Supreme Court’s abortion decision-making, found in Justice Kennedy’s rationale for his majority decision in Gonzales v. Carhart. That case upheld the federal Partial-Birth Abortion Ban Act of 2003, which banned intact dilation and extraction abortions. Kennedy justified that outcome, in part, because, “[w]hile we find no reliable data to measure the phenomenon, it seems unexceptional to conclude some women come to regret their choice to abort the infant life they once created and sustained” when they later learn precisely how that abortion was performed.
While Justice Kennedy’s term “regret” predetermines moral condemnation of abortion, Sanger argues that the term “loss” might go further to explain the complicated interaction between the visual representation of the fetus and a woman’s decision to terminate a pregnancy. As Sanger explains, the ultrasound image of a soon-to-be aborted fetus becomes a particular kind of “family portrait”: a “family photograph relating to extinction.” She compares the experience of viewing the ultrasound to looking at wartime photographs of troops who, we know, were soon to die, and at secretly taken photographs of the inmates of Cambodia’s Tuol Sleng Prison just before their execution by the Khmer Rouge. She also compares the ultrasounds—more in line with the “family portrait” genre—to nineteenth-century photographs of parents posed with their very recently deceased children and “spirit photography” in which the spirit of a deceased loved one was represented by a shadowy figure—often derived from a photograph taken while that person was still alive—standing next to the bereaved. (“Post-mortem photographs” trended when portrait photography was an expensive studio practice; it provided a way of capturing a family portrait of a child who died too young and too fast to be included in a less grief-saturated tableau.)
These reflections on parental loss and grief, and on how photographs mediate strong emotions, concede that some abortions are deeply mourned. They lead Sanger to consider ultrasounds that disclose severe fetal anomalies—that jump in a diagnostic heartbeat from a joyful family portrait to a portrait of loss, sometimes all the way to the loss produced by abortion itself. And she proceeds from there to abortion patients who want to see or hold the aborted fetus, to mourn its death by tenderly holding onto its embodiment. Some, she tells us, even requested the intact dilation and extraction abortion procedure precisely so that they could mourn this way over a mostly-intact body.
None of this is in the polarization playbook. There, those who defend the right to an abortion warn against conceding an inch to Justice Kennedy’s projection of regret onto women seeking abortions and his assumption that the fetus is an “infant life.” Sanger has taken heat for calling pro-lifers by their preferred name (rather than anti-abortion or anti-woman), but she does so because she takes it as axiomatic that many of them are precisely that: pro-life.
Readers will want to decide whether Sanger withholds her will to see, and indeed to feel, the weight of pro-life sub-arguments in the right places. The chapter that levies stern moral judgments at pro-life legislation most liberally is titled Sending Pregnant Teenagers to Court. She follows teenage girls through the process of deciding whether they want abortions, deciding they cannot get—or can’t risk trying to obtain—parental permission, and facing the judicial bypass procedure. She’s deep in the cases. The details she brings to the surface are indeed disturbing: judges dismissing girls’ fear of parental punishment and violence, rejecting their decisions because they talk like teenagers or omit some surprise element that the judge deems to be essential to a mature consideration, condescending and preaching to them as if they are entitled to serve in loco parentis.
But Sanger’s argument is targeted not at denials in the judicial bypass process but at the procedure itself, which, she argues, often hides behind the best interests of the child standard to obscure a legislative and/or judicial will to preserve fetal life no matter what the cost to particular girls. She detects a will not only to control but to punish girls seeking judicial sign-off (P. 158, 181); a plan to humiliate and degrade them no matter what the outcome in their particular cases (P. 160-61): the process is “maddening” and “mean-spirited.” (Pp. 172, 179.) Above all, no matter what the intent, it is harmful: it does humiliate, degrade, frighten, expose, and stigmatize young people seeking, after all, to exercise a constitutional right.
At least some of Sanger’s opponents would say, in response, that they are saving fetal lives and that some costs imposed on the girls determined to terminate them are well worth it. This might be harsh; people with different views about the morality of abortion might not go so far; but it’s not hypocritical.
But even here Sanger’s cool lawyerly self is at the helm. She reminds her reader that, though the Supreme Court has required some process by which minors can access abortions besides parental consent or notice, that process does not have to be a judicial bypass. (P. 182.) Other means of making sure that minors have given serious and informed consideration to their decision—means that are not alienating, frightening, humiliating, sometimes predetermined to be futile, and literally judgy—could also satisfy the Court’s requirement that there must be a substitute for parental consent. And she suggests several: foster parents, de facto parents, other relatives, designated mental health professionals. She does not object to statutes in Maine and Delaware that require these delegates to make sure the minor knows the alternatives to abortion and the support and services, however meager, available on those alternative pathways. Sanger refuses to be driven to a position she does not endorse—that minors should have the identical right-to-decide as adults. It’s a subtle performance, and convincing to me. You could call it an offer to compromise with the more moderate elements of the pro-life movement.
About Abortion presents a complex picture of a practice that actual women experience in a vast array of ways. Sanger probably won’t get the more human and attentive conversation about abortion that she is seeking—not anytime soon, at any rate—but this richly learned and beautifully voiced book is a genuinely critical engagement of a kind I believe we need more of right now.
Professor Douglas NeJaime’s article, The Nature of Parenthood, unites concepts, ideas, bodies of law, and legal subjects that have largely been viewed in isolation—until now. The “first comprehensive account of contemporary regulation of parental recognition in the context of ART [alternative reproductive technologies],” (p. 2270) The Nature of Parenthood brings into focus the similarities, connections, and dynamic relationships between and among things that scholars often consider separately: ART law and the law of unwed fatherhood; non-biological mothers in opposite-sex relationships and non-biological fathers in same-sex relationships; intended genetic mothers and unwed biological fathers; family law and constitutional law; past and present. Equal parts legal history, doctrinal and constitutional analysis, and legal reform, The Nature of Parenthood is a beautifully executed and orchestrated work that above all else spins an absorbing narrative of parenthood in the United States—one that defies clear distinctions among beginning, middle, and end.
Professor NeJaime’s principal objectives in The Nature of Parenthood are threefold: (1) to show that modern parentage law has “carri[ed] forward” (p. 2289) the past in ways that continue to exclude traditionally marginalized groups and to underappreciate parenthood’s social dimension; (2) to argue that the “legacies of exclusion embedded” (p. 2268) in modern parentage law are in conflict with many of the norms that have emerged from recent constitutional law and family law jurisprudence; and (3) to suggest reforms to family law and constitutional law (relating mainly to parentage) that better align both bodies of law with the values that have materialized from each, in fits and starts, over the last fifty to sixty years.
The Nature of Parenthood accomplishes these objectives by providing an exhaustive and engrossing narrative of parentage law in the United States, beginning in Part I with the past, specifically, with the law’s historic privileging of marital, biological, and gender-differentiated parenthood through mechanisms like the marital presumption and the constitutional jurisprudence of unwed fathers. Among his other observations in Part I, NeJaime here illuminates the law’s use of biology at once to liberalize parenthood (from the constraints of marriage) and to limit parenthood (within the constraints of reproductive difference). In so doing, he nicely sets the stage for Part II, which provides an even more elaborate account of simultaneous progress and regress in parentage law.
Part II is in many ways the heart of NeJaime’s article. In it, NeJaime moves from the past to the present as well as from a broad overview of legal history to a meticulous doctrinal and legal analysis of contemporary law. He takes a deep dive into modern American parentage regulation as it applies to many different kinds of families (single, marital, same-sex, opposite-sex) and to many different forms of ART (donor insemination, egg donation, gestational surrogacy), and emerges to tell a fascinating story about the law’s continued privileging of the traditional family in its approach to non-traditional parenthood.
For instance, NeJaime shows that the law in many states continues to prioritize marital parenthood by rendering the legal status of sperm donors who donate to single women uncertain and by making marriage the exclusive path to legal parenthood for certain classes of parents, like non-biological mothers in same-sex relationships. More interestingly, he reveals that the law in most states continues to prioritize not just biology but biological maternity specifically over both biological paternity and non-biological maternity by only recognizing surrogacy agreements when the intended mothers—but not the intended fathers—of such agreements use their own gametes to create the child. (These are the many jurisdictions that require genetic maternity but not genetic paternity for surrogacy agreements to be valid, not the few jurisdictions that require both intended parents to use their own gametes for surrogacy agreements to be valid. (See pp. 2376-81 (listing states with the latter requirement).)) In so doing, NeJaime suggests, contemporary parentage law continues to view the family as an institution that springs from a woman rather than from a man, and from a woman who, unlike a man, must, and need only, have a biological connection of some kind to her children. Indeed, he shows that contemporary parentage law remains tethered to the traditional family and its defining features—even as that law has evolved to partially accommodate the non-traditional family and even though that law offers the possibility of upending the same gender-differentiated, reproductive logic on which it rests.
Parts III and IV of The Nature of Parenthood turn, respectively, to the material and dignitary harms that contemporary parentage law inflicts on non-traditional parents and to NeJaime’s recommended reforms of state parentage law and federal constitutional law relating primarily to parentage. Here, NeJaime discusses the few cases that have applied parentage rules like marital presumption in gender neutral ways and argues that those cases hold the potential for displacing biological maternity as the exclusive generator of the legally-recognized family. He also gestures toward the future, envisioning what a state parentage regime more closely aligned with contemporary constitutional norms might look like and considering how constitutional understandings of sex and gender discrimination themselves might transform in response to states’ recognition of non-traditional parenthood—much in the same way that the constitutional law on marriage transformed in response to states’ recognition of same-sex marriage.
NeJaime’s The Nature of Parenthood makes numerous contributions to legal history, family law, and constitutional law—far too numerous to summarize in this necessarily abridged forum. It showcases the gravitational pull of biological maternity even in an alternative reproductive era that permits non-biological mothers and same-sex male couples to have children. It prompts us to consider what the persistence of biological maternity might mean for the future, when science could permit two men to create a child with their own gametes manufactured through skin cells. ((See generally Henry Greely, The End of Sex and the Future of Human Reproduction (2016) (discussing this possibility).)) It envisions the possibility of a world where the family springs from paternity no less than from maternity and from multiple parents no less than from the paradigmatic two.
Most provocatively, though, The Nature of Parenthood offers a fascinating story of parenthood in the United States, one that illuminates the progressive potential of even regressive tendencies in the law—a potential that conventional progress and regress narratives tend to obscure. NeJaime does this when he reminds us that the marital presumption has always recognized the social dimensions of parenthood, even when it overtly underwrote the gender-differentiated family. He does this when he suggests that ART law’s recognition and protection of genetic motherhood at once fetishizes biological maternity and renders unstable the logic of reproductive difference that has long shaped parentage law. And he does this when he concludes his article by suggesting that parentage regimes rooted in marriage and biology could ultimately unsettle the marital and biological logic on which those regimes rest. Just as he has with the trajectory of marriage recognition in the United States, ((See Douglas NeJaime, Marriage Equality and the New Parenthood, 129 Harv. L. Rev. 1185 (2016); Douglas NeJaime, Before Marriage: The Unexplored History of Nonmarital Recognition and Its Relationship to Marriage, 102 Calif. L. Rev. 87 (2014).)) NeJaime shows us that the trajectory of parentage recognition in the United States is not a simple matter of progression or regression. Rather, like the article that bears that title, the nature of parenthood is Janus-faced, simultaneously looking back and gazing beyond.
For decades, scholars have heaped scorn on family law’s open-ended legal standards like “equitable” distribution or the “best interests” of the child. The prevailing view is that such standards are indeterminate because they call on judges to weigh competing values in the absence of social consensus or to make impossible predictions. They therefore invite—in fact, require—judges to make decisions that resonate with their personal preferences or experiences. Laypeople appear to be in full agreement. Virtually every person I’ve known who has gone through a divorce has a story about the trial judge who “screwed” him or her by imposing values inconsistent with that person’s own.
But despite this virtually universal dissatisfaction, attempts to replace these standards with clearer rules or guidelines have largely failed. Scholars have offered convincing explanations for why this failure has been inevitable: people simply do not agree on the values that family law doctrines should reflect; state legislators shy away from controversial substantive positions on family law matters; and interest-group mobilization makes it easier to defeat, rather than to pass, proposed legislation.
This hostile environment is the setting for Sean Hannon Williams’s provocative article, Divorce All the Way Down: Local Voice and Family Law’s Democratic Deficit. Rather than fight the same losing battles, Williams identifies two key insights that gesture toward greater success in the field: first, we should focus on local rather than statewide reforms; and second, instead of bright-line rules or presumptions, we should encourage the development of “rules of thumb”—advice that would kick in when a totality of the circumstances test is inconclusive. These rules of thumb would help to answer questions like, “When determining custody, should judges favor the parent who believes in the importance of school or the parent who believes in the importance of church? When deciding how much each spouse contributed to the marital property, how should the court weigh the efforts of a stay-at-home parent?,” (p. 590) providing some guidance for decisions that are usually bundled into the opaque exercise of judicial discretion.
Williams’s turn to local solutions—which may come from city governments, school boards, or groups of local trial court judges (p. 582)—is partially motivated by practical considerations. Local governments are both smaller and more homogenous politically and demographically than states. While this may trouble us for other reasons, this lack of diversity may help localities to arrive at a consensus about questions like spousal support guidelines. (P. 621.) Moreover, the sheer number of localities may make it harder for interest groups, like fathers’ rights groups, to mobilize opposition to reforms. The relatively benign nature of rules of thumb—only exerting influence within a set of reasonable outcomes—may further diminish incentives for opposition.
But underlying the proposal is a normative critique of family law’s open-ended standards that differs from those that have previously been heard. To my mind, the most common critiques of family law’s broad standards cluster around concerns about fairness. The judgment may favor one or the other party without substantial justification, or uncertainty may cause the more risk-averse party to settle for less than what he or she might otherwise be entitled. The result is therefore different than what it should ideally be. Another common critique is that these standards undermine the legitimacy of the judicial system by producing outcomes through a seemingly opaque and arbitrary process.
Williams, in contrast, avoids these traditional critiques, instead depicting open-ended standards as an affront to democratic values. He argues that the ongoing critique of family law as elitist and out of touch with all families arises, at least in part, from the fact that judges often do not reflect the communities they represent. (P. 615.) Moreover, although many judges theoretically stand for election or re-election, most elections are not seriously contested and voters usually lack basic information about the candidates. (Pp. 609-10.) When judges rely on the opinions of private actors like custody evaluators, they invite even less democratically accountable actors to influence the decision-making process. (P. 597.) These decisions are therefore less likely to reflect community values. Just as problematically, the lack of transparency deters community participation and open debate. Encouraging local actors to articulate rules of thumb, either through the legislative process or through the adoption of rules of court, would encourage public participation and allow beneficial innovations to percolate up to the state level. In this regard, local rules of thumb would perform a democracy-forcing function.
Williams addresses a wide range of objections to his proposal, but he devotes the bulk of his attention to the fear that local authorities will adopt either wrongheaded or oppressive rules of thumb. What happens, for example, when local officials discriminate against same-sex parents by adopting a rule that those parents have to go through invasive custody evaluations? (P. 645.) It may be the case, as Williams argues, that most of these attempts would fail because of state and federal antidiscrimination laws or constitutional constraints. But Williams’s focus on this concern highlights a deeper uncertainty about the value of democracy in family law. Certain types of value judgments—like how zealously to expose one’s child to religion or whether wives should be encouraged to work outside the home—are thought to be central to family autonomy. The idea that the answers should be subject to the preferences of others, even if reflective of the surrounding community, is disquieting.
Williams’s proposal puts us to a choice: would we rather have the resolution of family disputes depend on community values or the preferences of democratically unaccountable individuals? The article provides a strong normative case for local experimentation that is already ongoing and shows that many fears about local rules of thumb would be overblown. That said, by setting up a conflict between democratic values and individual autonomy, Williams’s article left me surprisingly more uncertain about the elimination of open-ended standards than I was at the outset. But this discomfort is the article’s greatest success, injecting new energy into a stale but essential debate.
The Supreme Court’s 2016 decision in Whole Women’s Health v. Hellerstedt has been widely heralded as a victory for reproductive rights. There, a 5-3 majority of the Court struck down two provisions of H.B. 2, the abortion bill that then-Senator Wendy Davis famously tried to filibuster in 2013. One of the challenged provisions required abortion providers to have admitting privileges at local hospitals, while the other required abortion clinics to be outfitted as ambulatory surgical centers. According to H.B. 2’s proponents, both measures were designed to protect women’s health. Opponents of the bill countered that the two measures would effectively shutter the majority of abortion clinics in Texas, which has roughly 5.4 million women of reproductive age.
In the end, Hellerstedt did not prevent the closure of the clinics. Indeed, when the admitting privileges provision went into effect, it caused more than half of the clinics in the state to close. Instead, Hellerstedt is seen as a victory because the Court affirmed a woman’s constitutional right to choose an abortion, and in so doing, provided more guidance for determining whether and how that right has been unconstitutionally infringed. Under the undue burden standard announced in 1992’s Planned Parenthood v. Casey, lawmakers bear the burden of showing that a challenged abortion regulation does not unduly burden the right to abortion by placing a substantial obstacle in the path of women seeking to terminate their pregnancies. As the Court explained in Casey, “the means chosen by the State to further the interest in potential life must be calculated to inform the woman’s free choice, not hinder it.”
As Professor Leah Litman notes in her recent article, Unduly Burdening Women’s Health: How Lower Courts are Undermining Whole Woman’s Health v. Hellerstedt, for years, lower courts have struggled to apply the undue burden test, questioning whether––or how deeply––it requires judges to delve beyond the stated purposes of a law to assess its actual impact on women seeking abortions. Indeed, the Fifth Circuit, the intermediate appellate court that reviewed the Hellerstedt case before it proceeded to the Supreme Court, adopted a more deferential posture, accepting without further scrutiny the legislature’s claims that the regulations were intended to secure women’s health and dismissing concerns that the regulations unduly limited abortion access without actually delivering improved health outcomes.
Hellerstedt, however, attempted to resolve these issues, providing much-needed clarity as to the appropriate standard. According to the Court, reviewing courts must consider “the burdens a law imposes on abortion access together with the benefits” when determining if an abortion restriction imposes an undue burden. As importantly, the Court made clear that the standard requires reviewing courts to independently assess whether an abortion restriction furthers a valid purpose rather than blindly deferring to any justification that the state claims is reasonable.
Abortion rights advocates praised Hellerstedt for settling, once and for all, a contentious debate about the appropriate level of scrutiny and judicial review for abortion regulations. However, “states and the federal courts of appeals do not seem to have gotten the message.” (P. 51.) As Litman explains in her timely article, states and courts of appeals have relied on various approaches, including recycling arguments the Court rejected in Hellerstedt, to limit the decision’s force. Specifically, state legislatures have defended new abortion restrictions on the ground that the new laws aim to protect fetal life, as opposed to maternal health. Hellerstedt, they argue, applies only to abortion restrictions legislated in the interest of protecting women’s health. Abortion restrictions that are premised on other grounds, they maintain, are outside of Hellerstedt’s ambit. This narrow interpretation of Hellerstedt, Litman notes, is utterly inconsistent with both Hellerstedt and Casey. After all, Casey applied the undue burden standard to invalidate a range of abortion restrictions, including restrictions that purported to promote fetal life as well as those that were aimed at promoting maternal health and safety. (Pp. 51-53.)
But it is not just that lower courts have narrowly interpreted Hellerstedt’s mandate to apply only to those measures aimed at promoting maternal health; lower courts have also interpreted the decision to require courts to engage in extensive—and quite specific—fact-finding before invalidating—or even enjoining—a challenged restriction. Litman cites a recent decision, Planned Parenthood of Arkansas & Eastern Oklahoma v. Jegley, as an example of this impulse. (Pp. 53-55.) There, the Arkansas legislature passed a law requiring medication-abortion providers to have a contract with a physician with hospital admitting privileges. Days before the provision was to take effect, Planned Parenthood filed suit seeking to enjoin enforcement of the law. Focusing, as the Hellerstedt Court had, on the restriction’s likely impact on access to and availability of abortion services, the federal district court below issued a preliminary injunction preventing the state from enforcing the restriction. The district court noted that, like Texas admitting the privileges requirement invalidated in Hellerstedt, the Arkansas restriction, if it were to take effect, would result in the shuttering of abortion clinics in that state. As Litman notes, the district court found “little evidence of the requirement’s benefits but considerable evidence of the extent of its burdens” on abortion access.
Nevertheless, on appeal, the Eighth Circuit vacated the preliminary injunction on the ground that the district court “did not define or estimate the number of women who would be unduly burdened” by the requirement because it “did not determine how many women would face increased travel distances.” Further, the district court failed to “estimate the number of women who would forgo abortions” or “estimate the number of women who would postpone their abortions” because of the restriction. As Litman explains, the Hellerstedt Court did not undertake—nor did it require—such detailed and extensive fact-finding, relying instead on evidence of “the number of abortions that were performed in the state, the number of clinics that would be left in the state to perform them, and the location of the clinics” in order to determine that the challenged provisions posed an undue burden. (P. 54.)
In addition to employing interpretive tactics designed to limit Hellerstedt’s reach, Litman notes, some lower courts have been more upfront about their opposition to Hellerstedt. Recently, she writes, the Eighth Circuit invalidated a law that would have prohibited physicians from performing abortions when the physician could detect a fetal heartbeat. Although the court acknowledged that “controlling Supreme Court precedent dictate[d] the outcome,” it nonetheless expressed its strong reservations, urging the Supreme Court to “reevaluate” its abortion jurisprudence. (P. 58.)
The landscape that Litman sketches is discomfiting, but not entirely unsurprising. Supreme Court decisions recognizing rights in contested fields often prompt some degree of pushback—or even confusion—from lower courts charged with following new precedents. The aftermath of Lawrence v. Texas is instructive on this point. There, the Court struck down a Texas statute criminalizing same-sex sodomy. In doing so, the Court gestured toward a broader commitment to LGBT equality and civil rights—a commitment that LGBT rights advocates then used to challenge other laws that discriminated on the basis of sexual orientation. In reviewing these challenges, many state and lower courts sought to limit Lawrence’s reach. To do so, they relied on many of the same interpretive techniques that Litman documents in her assessment of the post-Hellerstedt landscape. They insisted that Lawrence was strictly limited to anti-sodomy prohibitions and only protected private sexual activity between consenting adults. As such, it could not be applied to protect gays and lesbians seeking to adopt or to foster children, nor did it preclude state regulation of “obscene material” being sold in a commercial setting. And even as the Supreme Court built upon Lawrence to extend the right to marry to same-sex couples in Obergefell v. Hodges, this development was also marked by an effort to limit that decision’s reach. While lower courts acknowledged that Obergefell legalized same-sex marriage, they expressed doubt that the decision went so far as to guarantee married same-sex couples access to public benefits and parental recognition. Like the multi-headed hydra of myth, from each victory springs a new effort to restrict these gains. For example, In June 2017, Texas Governor Greg Abbott, signed into law S.B. 8, which bans the dilation and evacuation abortion procedure (“D & E”), the safest and most common method of abortion after approximately 15 weeks of pregnancy, with no exception for rape or incest. S.B. 8 also bans fetal tissue donation, and requires that all tissue obtained during an abortion be buried or cremated.
Although Litman does not advert directly to this recent history, it looms large as she identifies the implications of the current effort to cabin Hellerstedt’s reach. As she explains, “[e]ven if the current Supreme Court were to step in and correct the courts of appeals and states’ resistance to Hellerstedt, there’s no guarantee the harmful effects of these laws would be reversed.” (P. 59.) When allowed to take effect, she argues, many of the restrictions upheld under narrow interpretations of Hellerstedt will “result in the closure of clinics, and when a clinic closes, there’s the possibility that it will not reopen, even if the restriction that led to its closure is subsequently invalidated.” (P. 59.) More ominously, “[s]everal of the judges on President Trump’s list of potential nominees to the Supreme Court authored or joined the opinions that wrote off Hellerstedt as all but limited to its facts.” (P. 60.) If elevated to the high court, these jurists will not only have the opportunity to cabin Hellerstedt’s reach—they will have the opportunity to overrule it altogether.
On this account, although Hellerstedt has been viewed as a monumental victory for reproductive rights, Litman warns us that the devil is in the details. In the hands of those resistant to the project of reproductive rights, Hellerstedt is a paper victory—and perhaps even a defeat.
Cite as: Melissa Murray, Undoing Hellerstedt
(April 27, 2018) (reviewing Leah Litman, Unduly Burdening Women’s Health: How Lower Courts are Undermining
Whole Women’s Health v. Hellerstedt, 116 Mich. L. Rev. Online
50 (2017)), https://family.jotwell.com/undoing-hellerstedt/
The slippery relationship between status and conduct has preoccupied scholars, activists, and courts for many years. At various points, state and private actors have avoided claims of unlawful discrimination by disaggregating status from conduct—claiming that they have singled out individuals for unfavorable treatment based not on protected identity but rather on objectionable and unprotected acts. In Intimate Liberties and Antidiscrimination Law, Deborah Widiss uncovers the extensive reach of this status-conduct argument, persuasively urges actors in the legal system to abandon it, and elaborates the implications of that abandonment for current conflicts over the scope of antidiscrimination law.
Perhaps nowhere has the status-conduct distinction been more prominent than in the realm of sexual orientation. In Bowers v. Hardwick, the 1986 decision upholding anti-sodomy laws against constitutional challenge, the U.S. Supreme Court refused to identify “homosexual conduct” as a protected liberty. After Bowers, LGBT rights advocates attempted to disaggregate conduct from status, even though they understood same-sex sex as inextricably linked to lesbian and gay identity. Advocates would contend that even though the government could criminalize the underlying conduct, it should not be permitted to discriminate against people based on their status as lesbian or gay. This strategy yielded mixed results. As the D.C. Circuit reasoned in 1987, “If the Court was unwilling to object to state laws that criminalize the behavior that defines the class, it is hardly open to a lower court to conclude that state sponsored discrimination against the class is invidious.”
In 2003, in Lawrence v. Texas, the Court repudiated Bowers and its status-conduct distinction, as it ruled that same-sex sex is a liberty protected by the Fourteenth Amendment’s Due Process Clause. Writing for the Court, Justice Kennedy explained how the prohibition on conduct produced substantial status-based harms: “When homosexual conduct is made criminal by the law of the State, that declaration in and of itself is an invitation to subject homosexual persons to discrimination both in the public and in the private spheres.” In a concurring opinion rooted in equal protection principles, Justice O’Connor rejected the status-conduct distinction that had hampered LGBT rights claims for many years: Because “the conduct targeted by this law is conduct that is closely correlated with being homosexual . . . , Texas’ sodomy law is targeted at more than conduct. It is instead directed toward gay persons as a class.” In its 2010 decision in Christian Legal Society v. Martinez, the Court summed up how far it had traveled, explaining that its recent decisions “have declined to distinguish between status and conduct in this context.”
While this record suggests that the status-conduct distinction that blocked LGBT progress has been relegated to the dustbin of history, Widiss’s article reveals that the status-conduct argument—with its power to disarm claims to equality—persists. Consider claims to religious exemption arising in the context of same-sex marriage. The religious claimant, Widiss shows, articulates an objection to conduct—same-sex marriage—and not status. Indeed, in Masterpiece Cakeshop v. Colorado Civil Rights Commission, currently pending before the Supreme Court, Jack Phillips argues that he does not discriminate based on sexual orientation; indeed, he would happily serve lesbian and gay individuals. It is same-sex marriage to which he objects.
This distinction between lesbian and gay identity, on one hand, and same-sex marriage, on the other hand, is in important ways an updated version of the status-conduct distinction that pervaded the era of anti-sodomy laws. As I have documented, many of the objections that have been characterized as objections to same-sex marriage have in fact included general objections to same-sex relationships, whether marital or not. From this perspective, we can understand same-sex marriages as merely a subset of same-sex relationships. And same-sex relationships represent the very enactment of lesbian or gay identity. Through this lens, the same-sex marriage objection is properly understood as an objection to status, not simply to conduct.
Widiss shows us that the status-conduct distinction that has emerged in the same-sex marriage context pervades antidiscrimination law. Indeed, she notes how the arguments in Masterpiece Cakeshop are underwritten by earlier decisions on marital status discrimination. In the closing decades of the twentieth century, some state courts “held that landlords could refuse to rent to cohabiting couples because that decision simply reflected disapproval of ‘conduct’ (i.e., non-marital intimacy), rather than impermissible marital status discrimination.” (P. 2087.) More recently, “courts have similarly reasoned that discrimination on the basis of pregnancy is illegal sex discrimination, but discrimination against a pregnant woman premised on her having engaged in non-marital sex is permissible.” (P. 2087.)
Widiss persuasively attacks the status-conduct distinction on both conceptual and doctrinal grounds. Just as “[s]exual orientation is defined by actual or desired partners for sexual intimacy,” “[m]arital status is defined by choices regarding whether and when to marry. And pregnancy, including non-marital pregnancy, is the physical manifestation of sexual intimacy and choices regarding procreation and contraception.” (P. 2088.) Not only does the status-conduct distinction miss the deep connection between identity and acts in these settings, it reads into the relevant nondiscrimination statutes an unnecessary and harmful limit. Here, Widiss argues that modern constitutional law is relevant to the interpretation and application of private antidiscrimination law. Decisions on abortion, contraception, and same-sex sex demonstrate how conduct protected as fundamental for due process purposes is deeply connected to identity. And, whereas Lawrence demonstrates that criminalization of intimate conduct can fuel private discrimination, Widiss asserts that “permitting private discrimination can undermine individuals’ freedom to exercise fundamental liberties.” (P. 2089.)
The connection between protected conduct in constitutional law and protected status in antidiscrimination law is relevant not only to interpretive considerations but also to the weight of the interest the government seeks to vindicate through the nondiscrimination mandate’s enforcement. On Widiss’s account, given that fundamental rights are at stake, shielding from discrimination those who exercise such rights should be deemed a compelling governmental interest.
These insights, in Widiss’s framework, guide resolution of contemporary claims to religious exemption from antidiscrimination law. First, courts should understand the religious objection against same-sex marriage, unmarried cohabitation, and non-marital pregnancy as a status-based objection covered by antidiscrimination mandates that include sexual orientation, marital status, and pregnancy. Second, courts should understand unencumbered enforcement of the law as necessary to further the compelling governmental interest in preventing discrimination.
In all, Intimate Liberties and Antidiscrimination Law presents both an insightful conceptual argument and a convincing doctrinal intervention. Widiss disarms the status-conduct arguments that for too long have obscured discrimination based on sexual orientation, marital status, and pregnancy. And she tightly connects the constitutional principles that animate the Court’s protection of intimate conduct to questions of interpretation and enforcement in antidiscrimination law.
Domenico Starnone, Ties
(translated by Jhumpa Lahiri, 2017).
“Happy families are all alike; every unhappy family is unhappy in its own way.”
(Come on, you know who said this)
Family law, in the limited way we have construed it over the last eighty years or so, deals almost entirely in unhappy families. When the law comes in it is separation, divorce, or restraining order time, custody determination, child support, abuse and neglect time. Happy memories are in the past, and the only thing that remains is an accounting, whose apparent aim is to make possible a—legally—bearable life in the future.
Yet family law tries to defy Tolstoy’s observations about unhappy families. It attempts to categorize and systematize types of unhappiness, put them in boxes to make them manageable by judicial or administrative fiat. The attempt, no matter how necessary, often proves to be just that, an attempt, incomplete and even incoherent. The messy incommensurability of intimate relations often forces family law to crack at the doctrinal seams, allowing infinite variations of family unhappiness to burst out without much hope of systematic categorization or containment. How else can we grapple with the “best interests of the child” standard, for example, with its grand gesture towards certainty and a concurrent knowing wink about the impossibility of predicting the future? Even the past, theoretically more knowable than the future, flickers in and out of focus in doctrinal vehicles as mysterious as “irretrievable breakdown,” which—inevitably—become the equivalent to a judicial rubber stamp on a decision already made, rather than a coherent description of a set of events in the world.
Ties, a short novel by Domenico Starnone translated from the Italian by Jhumpa Lahiri, delves deeply into the world of a seemingly irretrievable breakdown. It provides a field trip away from what sometimes feels like the fictional world of doctrine and into the real world of fiction, where the human characters of marital breakups and reconciliations reside. It challenges family law scholars to reflect upon the gap between the messy humanity entailed in private lives and the Sisyphean legal task of imposing order through doctrine. It challenges us to reflect upon the role that law plays and could be playing in the messy human process of building, destroying and rebuilding intimacies.
The story begins with a marital breakup, narrated in the first part of the novel in the powerful and commanding voice of the abandoned wife: “In case it’s slipped your mind, Dear Sir, let me remind you: I am your wife.” (P. 23.) It is the voice of a 34-year-old wife and mother of two, writing a series of letters to her philandering husband in the wake of his abandonment. The year is 1974, the place is Naples, Italy. Aldo, the 32-year-old husband has fallen in love and run off with a much younger woman and the fantasy of reinvention that she represents, leaving his wife, Vanda, alone to fend for herself and the children. Her voice grabs the reader from the very first page, the seeming victim in a crime of the heart that strikes as unnecessarily cruel in the details of its execution.
The letters, nine in total and spanning four years in time, pulse with anger, grief, vindictiveness, resignation, calculation, sadism, fear. Here she pleads: “as soon as you read this letter, come home” and “have you forgotten that I don’t have a job?”; there she threatens: “Aldo be careful. If I start to lose it, I’ll make you pay”; and further she goes for the jugular, aiming at Aldo’s faltering sense of ego: “you’ll never be what you want, just what happens by chance.” Vanda’s voice occupies the first of three short books in the novel. It is the shortest one, yet her anguish and pain reverberate through the entire novel, echoing inside the remaining two books, which are the first-person narratives of Aldo and Anna, the traumatized daughter, by the time of her intervention a struggling adult.
At the end of the first book, Vanda’s letters have left us with an indelible impression of an “irretrievable breakdown,” a wound so deep that it would by unimaginable for healing to have taken place. And yet, Aldo, in the second book, takes us through the story of the couple’s eventual reconciliation. It is a story of guilt and remorse, especially for the destruction wrought upon his children. This is not so much an openly agreed upon reconciliation, as a gradual, almost stealthy return to the architecture of marriage, which has legally remained standing despite the actual separation.
The new relationship is built on solid ground. It is not the solid ground of love or happiness, but the eventually explosive building blocks of attrition and penance, mistrust and vindictiveness. Vanda, short-tempered and impatient, can barely stand to hear from Aldo; anything he says, anything he does, provokes her and her temper explodes. Her words are packed with bitterness and resentment, her actions echoes of the pained and angry voice at the beginning of the novel. Aldo, on his part, moves like an animal in retreat, tail between his legs, running for cover at the slightest indication of trouble. Theirs is a carefully curated relationship—one that must make room for the wife’s injured ego, and exclude certain things from view, such as Aldo’s continuing love for the lover he eventually leaves behind, or Vanda’s own lack of love for the husband she has now managed to reclaim. “From the crisis of many years ago we have both learned that we need to hide a great deal from each other, and tell each other even less. It’s worked.”
The image we have of the marriage changes yet again, Rashomon like, as we hear from Anna and Sandro, the couple’s children and the two innocent bystanders who are in turn instrumentalized and made complicit in their parents’ primordial battle. “The only ties that counted for our parents were the ones they’ve tortured each other with their whole lives”, Anna hurls at her brother with a vehemence reminiscent of Vanda’s own anger. It is a brief, heartbreaking part of the novel, a glimpse into the lasting effects of trauma and the depressingly repetitive nature of learned behavior, with some redemptive glimmers of hope shining through for the two adult children.
Law makes only a few direct appearances in the book. It remains always in the background, never the center of this battle for survival, and yet provides what seems to be an important backdrop in the context of the marriage. In 1970, the Italian Parliament passed a law allowing divorce, in a move that was understood as an assault on the Catholic Church’s position in Italy. The grounds were mostly fault based, with one exception: a legal separation that lasted five years could also provide a valid basis for a final divorce. This is an option that Aldo and Vanda seem uninterested in. However, after four years, Vanda finally sues Aldo for full custody of their children, an option that was also created for the first time by the 1970 law. She wins without a problem or even a fight from him. But she lacks any independent sources of income and can’t get him to pay up regularly for the support of the children. Here we are left to wonder whether the newly established provision on maintenance is not truly enforced properly, or whether Vanda is making an emphatic choice not to use the option given to her by the 1970 divorce statute. Instead, guilt-tripping Aldo is the means she deploys to the maximum. The fact that Aldo has been allowed to get away with impoverishing his family eventually weighs heavily on his conscience. It is one of the factors that, in his own recounting, lead him back to the marriage. In this regard, the background architecture of marriage—the expectation of support for vulnerable members of the family—which has not been jettisoned, even as the couple has physically separated, provides the stage that can house a return, without open discussion of the terms, only a gradual slipping back into the fold.
How would this story have turned out if the legal landscape were different? The sweeping changes in attitude highlighted by the pro-divorce movement in Italy of the time certainly seem to influence how Aldo initially feels about leaving his unhappy marriage. Would guilt and penance, two of the protagonists in this story, have managed such a central place in a legal universe of relatively easy exit and wage garnishing? Despite the change in legal rules, it is still a relatively difficult and costly way to the marital exit. Would guilt be so prominent in a legal universe of no fault divorce? Would reconciliation have managed to garner such power in the minds of these two unhappy spouses, if it weren’t backed by the symbolic power of the legal system for which it remained the preferred happy outcome? Or would these two have chosen an entirely different script for their story? One in which they each go their own way rather than attempt to reconstruct something from the pieces of their broken relationship?
These are such compelling questions for me that I am tempted to assign the novel for class discussion at the very beginning of my family law class as a challenge and an invitation to think about the role of law in shaping intimate experience. I am even tempted to go one step further and use the storyline and characters for my regular divorce negotiation exercise. How does Vanda fare under a no-fault regime vs. a fault based one? How does Aldo fare? How does changing the background legal rules change the students’ understanding of what their “clients” might possibly want out of a potential divorce or separation negotiation? How does the world of the legally possible influence the world of the intimately felt?
Ties is a short but compelling invitation from the world of literature to contemplate the contours as well as the limits of law in shaping intimate experience.
Understood etymologically simply as “well born,” the term “eugenics” has over time evolved to take on different meanings in legal and bioethical debates surrounding reproduction. Eugenics originally referred to the set of practices that controlled—and grossly limited—reproduction during late-nineteenth and early-twentieth-century America. (Pp. 28-53.) More recently, eugenics has described the use of embryonic screening technologies by prospective parents purportedly driven by a desire to master nature and perfect procreation. (Pp. 184-93.) Historically, our understanding of eugenics focused mostly on the state’s coercive power over its citizens’ reproductive choices through nefarious practices like mandatory sterilization. By contrast, the more recent appeal to eugenics, known as “liberal eugenics” or “neoeugenics,” captured instead private procreative decision-making in a world of rapidly advancing alternative reproductive technology (ART). (P. 185.)
In The New Eugenics: Selective Breeding in an Era of Reproductive Technologies, Judith Daar argues for a different understanding of eugenics, one which, as Daar’s title suggests, she calls the “new eugenics.” The new eugenics, Daar argues, comprises the contemporary state and private practices that either actually or effectively exclude certain populations from accessing—and therefore forming families through—alternative reproductive technologies like in vitro fertilization, alternative insemination, and surrogacy. Daar’s “new eugenics” exhibits some of the aspects of the early eugenics program in the United States, representing as it does a set of practices that are “fueled” by concerns relating to science, tradition, and economics—concerns that often are “celebratory of majoritarian values, messaging that minority populations and their offspring are less deserving of access to fertility care.” (P. 52.) Moreover, Daar is careful to distinguish her conception of the “new eugenics” from neoeugenics. Critics of neoeugenics, she says, equate the voluntary procreative decision-making of prospective parents today with the coercive reproductive programs of former times. (P.185.) ((See, e.g., Michael J. Sandel, The Case Against Perfection: Ethics in the Age of Genetic Engineering 70 (2007) (arguing that “even where no coercion is involved, there is something wrong with the ambition, be it individual or collective, to determine the genetic characteristics of our progeny by deliberate design”).)) In so doing, she contends, these critics miss “the true eugenic nature of modern reproductive technologies,” namely, “the inability of a significant number of would-be parents” to access them and thereby “achieve parenthood.” (P. 185, note 1.) (Emphasis added.)
After discussing the alternative “reproductive revolution” in chapter 1 (Pp. 1-27) and situating it briefly within “our eugenics past” in chapter 2 (P. 28-53), Daar proceeds in the next four chapters of her book to catalogue and elaborate on the contemporary barriers that curtail reproductive access and that together amount to a “new eugenics” comprised of acts both state and private, formal and informal, intentional and unintentional. (P. 26.) She starts in chapter 3 with perhaps the most significant barrier to reproductive access: the cost barrier, or what she calls “the eugenics of cost.”(P. 70.) Resulting in “stratifying access to ART along socioeconomic lines,” (P. 70) the ART cost barrier is the result of state action (very few states mandate health insurance for fertility treatment, and those that do include in their laws a number of exclusions and conditions that screen many individuals out (Pp. 63-70) no less than private action (ART providers routinely turn away patients “who derive some or all of their income from public sources,” (P. 71) and some surrogacy agencies will not accept women receiving state assistance as eligible surrogates (P. 73)). The three succeeding chapters turn to formal and informal barriers to ART access that result in stratification by race and ethnicity, by marital status and sexual orientation, and by disability, respectively. Together, these forms of exclusion harm individuals as well as society more generally, depriving the former of constitutionally-guaranteed procreative liberty (Pp. 52-60) and degrading the latter by reflecting and reproducing a system that is “dangerously reminiscent of our eugenics past.” (P. 180.)
In addition to providing a comprehensive taxonomy of the myriad forms that exclusionary reproductive practices assume, Daar’s book nicely develops a eugenics lens or “trope” that helps bring into focus precisely why certain alternative reproductive regulation is harmful: because such regulation attempts to perfect procreation by restricting reproductive liberty. (P. 180.) Such a lens is useful in critiquing laws requiring intended parents in surrogacy contracts to be married, (P. 129) as those laws subject alternative procreators to a procreative ideal—marital reproduction—from which sexual procreators are exempt. ((That is, no state requires sexual procreators to be married in order to procreate—nor punishes them for procreating outside of marriage when they do.)) It is also an important vantage point for assessing fertility clinic practices that exclude same-sex couples from reproductive services, as such practices subject alternative procreators to a procreative and parenting ideal of dual-gender parenthood. Indeed, such a lens is helpful in critiquing the critique of contemporary ART as neoeugenic, as it allows us to see that arguments denouncing alternative reproduction for attempting to perfect procreation in eugenic ways themselves rest on a particular vision of what procreation ought to look like: (somewhat) random and fully accepting of the “unbidden.” ((Sandel, supra note 1, at P. 46.))
As scholars increasingly uncover the extent which traditional family norms and ideals constitute the basis for contemporary (alternative) reproductive regulation, ((See, e.g., Douglas NeJaime, The Nature of Parenthood, 126 Yale L.J. (forthcoming 2017); Melissa Murray, Family Law’s Doctrines, 163 U. Pa. L. Rev. 1985 (2015); Courtney Megan Cahill, The Oedipus Hex: Regulating Family After Marriage Equality, 49 U.C. Davis L. Rev. 183 (2015).)) Daar’s eugenics trope offers an illuminating way to appraise that regulation’s ethical and constitutional infirmities. Laws that restrict surrogacy to married couples, or fertility practices and state insurance laws that screen out individuals on the basis of cost, disability, marital status, and/or sexual orientation, raise serious ethical and constitutional concern in an era of sexual orientation equality, familial pluralism, and robust reproductive liberty—norms that emerge from recent constitutional and family law jurisprudence relating to intimate and family life. Much scholarly appraisal of alternative reproduction has criticized it for attempting to perfect procreation through technologies and practices like preimplantation genetic diagnosis, rigorous sperm and egg donor selection, and gene editing. Daar’s framework offers us a promising opportunity to shift the focus in that debate by centering on the regulation, actual and proposed, of alternative reproduction—regulation that burdens alternative procreators, and only alternative procreators, with an ambition to perfect procreation and the parent/child relationship in ways and for reasons that are uncomfortably suggestive of our nominally repudiated “eugenics past.”
Barbara A. Atwood, The New UFLAA: Providing Needed Standards for Efficiency and Fairness
, 39(4) Family Advocate
38 (2017), available at SSRN
In July 2016, the Uniform Law Commission gave final approval to the Uniform Family Law Arbitration Act (UFLAA). Barbara Atwood was the drafting committee’s Chair and Linda Elrod was its Reporter. In The New UFLAA: Providing Needed Standards for Efficiency and Fairness, Professor Atwood offers an overview of the UFLAA’s history, the problems to which it responds, and the hard choices that had to be made in its drafting.
Arbitration has a bad reputation in large segments of the legal profession and legal academy. It is associated with provisions in consumer and employment agreements—mandatory arbitration with class action waivers meant to make challenges to improper behavior both private and impractical, and there are documented instances of the process being run by private arbitration companies with suspiciously one-sided win rates for the business or employer. It is also associated with Supreme Court decisions that have read the Federal Arbitration Act in controversially broad ways, in the process making it very hard to challenge arbitration provisions in court on grounds of unconscionability, lack of consent, or related grounds. Arbitration was also recently in the news when the Republican Congress and the current President combined to overturn a Consumer Financial Protection Bureau rule that would have limited use of such provisions in financial documents. Why would anyone want to have that unpopular mess in family law?
Atwood provides a compelling explanation to the naysayers. As she explains, just as family law agreements are distinct from commercial agreements, arbitration in the family law context is different from arbitration in the commercial context. Unlike commercial arbitration, which typically arises from mass-produced, take-it-or-leave it standardized forms (the boilerplate agreements that are part and parcel of credit card applications, cell phone contracts, and low-level corporate employment), family law arbitration generally emerges out of negotiations preceding separation or divorce, or as a term in a premarital, marital, or separation agreement. There is a hope that in the family law context, arbitration can offer the advantages frequently advertised on its behalf, without the problems that have arisen in (commercial) practice.
As Atwood notes, the non-public nature of arbitration might be especially attractive to disputing couples, and the process is often quicker and cheaper than litigation. At the same time, as Atwood points out, there is at least a tension, and perhaps a distinct misfit, between arbitration and family law. Typically, arbitration is accompanied by the absence of a record and very limited opportunities for judicial review. Understandably, family courts are reluctant to follow these typical arbitration procedures—at least for decisions affecting children (custody, relocation, child support), where the courts claim a strong parens patriae power and responsibility. While some might argue that arbitration could simply be modified to suit the particularities of the family law context, this too raises questions. Under the Supreme Court’s robust reading of the Federal Arbitration Act, it is unclear whether any modification of arbitration for family law purposes will be allowed.
Nevertheless, the UFLAA is intended to address these concerns in order to reap the benefits of arbitration in the family law context. As the article indicates, under the UFLAA, pre-dispute agreements to arbitrate child-related conflicts would generally need to be reaffirmed after the dispute arises to be valid; an arbitrator is required to request a verbatim recording of the parts of an arbitration hearing concerning child-related disputes; and arbitrators in family law cases would have the power to make temporary orders or awards. For most purposes, though, the UFLAA is meant to incorporate, or at least be consistent with existing state and federal arbitration procedures and standards.
The Article provides a clear description of this emerging development in family law. Also, as Atwood observes, the growing use and recognition of arbitration in family law should be seen alongside other developments in family law processes: including greater use of mediation and new experiments in many states with “collaborative law.” And the growing pluralism in family law procedure is even more evident when one adds in the distinction between secular and religious arbitration, and a seeming increase of the use of choice of law and choice of forum provisions in premarital, marital, and separation agreements. Professor Atwood’s article offers a useful overview of a new uniform law, as well as a good introduction to the alternative dispute resolution methods that are becoming ever more important in family law.
Scholars studying assisted reproductive technologies (ART) have long recognized its power to both challenge and reinscribe norms around reproduction and the family. In-vitro fertilization and surrogacy, for example, reveal that motherhood is not an inherently unitary construct, but is instead comprised of genetic, gestational, and affective ties. Scientific breakthroughs make it likely that, not too far in the future, technicians will be able to derive eggs and sperm from induced pluripotent stem cells, allowing them to create eggs from men and sperm from women. By decoupling sexual intercourse (and potentially biological sex itself) from reproduction, these past and future developments challenge foundational assumptions about the relationship between sex and the family. They have also expanded parenthood to people outside the traditional heterosexual dyad. But at the same time, ART fulfills the specific desire to create a genetic or biological parent-child relationship. It can therefore reinforce the mainstream ideologies of biogeneticism—belief in the importance, and even superiority, of biology and genetics in creating relationships and maintaining one’s identity—and repronormativity—the conceptualization of procreation as a biological imperative rather than a cultural preference.
It is this back edge of ART’s sword that Michael Boucai focuses on in his thoughtful article, Is Assisted Procreation an LGBT Right?. Boucai sheds light on the fact that in recent years, LGBT rights advocates have consistently argued that access to ART is an LGBT rights issue. The basic premise of argument is that LGBT individuals face special forms of infertility, whether hormonal/anatomical, or due to the nature of their intimate relationships. Barriers to ART, such as bans on remunerative surrogacy, therefore disproportionately burden the LGBT population, preventing full LGBT equality in parenthood. This embrace of ART troubles Boucai for several related reasons. First, advocates have largely ignored similar structural barriers to adoption facing members of the LGBT community. Second, arguments deployed in ART-focused advocacy tend to reify biological parenthood’s inordinate prestige by presuming that biological procreation is coextensive with family formation. The narrow focus on a fundamental right to procreate “carr[ies] a constant risk of glorifying biological reproduction at the expense of adoption,” while “invite[ing] judges to ensconce a preference for biological relationships in our family law and constitutional jurisprudence.” (Pp. 1123-1124).
Given that these critiques apply equally to non-LGBT, unassisted reproduction, what justifies the focus on LGBT parenting? After all, LGBT and non-LGBT people report similar motives for using ART, including a desire to “reproduce,” have a child of “one’s own flesh and blood,” to carry on their “ancestral line,” or to strengthen their intimate relationships by “mak[ing] a baby together.” Indeed, some reasons—like a desire for companionship in old age; to fit into extended family networks (for example, by providing a grandchild for Mom and Dad); or to attain parenthood’s promise of maturity, respectability, normalcy, and acceptance—may have even greater salience for people who have experienced exclusion from valued social institutions.
Boucai answers that the LGBT community has more to lose. From its beginnings, the modern gay rights movement emphasized a different model of kinship, one that was social and functionalist as opposed to biological and essentialist. In Boucai’s beautifully rendered conceptual and historical account, this queer kinship had its roots in LGBT people’s alienation from their genetic families and/or their “exclusion from patterns of love, marriage, and children upon which the dominant culture rests.” This dissociation from the traditional family provoked intellectual and political critiques of the reproductive family, and the development of social practices focused on one’s “chosen” family. Queer kinship arrangements united friends, lovers, and children in various combinations through “symbolic demonstrations of love, shared history, material or emotional assistance, and other signs of enduring solidarity.” LGBT adults formed informal relationships with children as honorary aunts and uncles, godparents, or mentors. When they adopted, they were more likely to pursue open adoptions, pushing back against the “as-if-genealogical” secrecy of closed adoptions. And they were more likely to adopt or foster “hard to place” children: those who are older, experiencing psychological or physical issues, or not the same race as the adoptive parents. Boucai argues that this ethic—that “love does not need blood to make a family”—was not “mere acquiescence to circumstance,” but a product of “a rich history of queer resistance, both personal and political, to the ideology of biogenetic kinship.” (P. 1106).
Framed in this way, the threat ART’s biogeneticism poses to queer kinship becomes manifest. Boucai proposes two interventions to mitigate the conflict. First, he argues that the LGBT movement’s pursuit of substantive equality in parenthood must expand its current focus on biogenetic parenthood to include adoption and alternative parenting arrangements. Boucai provides a litigation roadmap for bringing a disparate impact claim, identifying various reasons that LGBT people must depend more heavily on adoption to become parents, and the numerous structural impediments to adoption that disparately impact access. Second, he argues that attempts to secure a fundamental right to procreate through ART must avoid demeaning non-biological forms of parenting. Arguments based on the “heartrending image of a couple with but one ‘hope of procreating’ inevitably trades on a preference for biological children that most readers can be presumed to share. Most judges too.” (P. 1122).
These are thoughtful and practical interventions, and advocates ought to take notice. But one wonders, after reading his account, whether ART’s biogeneticism poses merely a conditional threat to queer kinship, or if it is in fact more existential. Boucai’s proposals would go some way to achieving the laudable goal of “correct[ing] the procreation/adoption hierarchy” without “invert[ing] it.” But what is the likelihood, without abandoning pro-ART advocacy entirely, that the LGBT movement will be able to resist biogeneticism’s normative pull? Although Boucai points to studies demonstrating that LGBT people are more enthusiastic about adoption than their straight counterparts, will access to privileged forms of reproduction eventually undercut that ethic?
In raising these questions, Boucai’s wonderful article contributes to a long-running discussion within the LGBT community. Can queer kinship survive queer respectability, or will it go the way of the gay bar, the gay bookstore, and the gayborhood itself? I suspect that Boucai himself has his doubts: the sunset of dissolution illuminates his account of the queer family with the aura of nostalgia. Predictions aside, Boucai makes a compelling argument that the least we can do is try.
Editor’s note: for an earlier review, see Douglas NeJaime, Biological and Social Approaches to the LGBT Family, JOTWELL (April 26, 2017).