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Purchasing Race; or, The Pursuit of White Sperm and Eggs

Camille Gear Rich, Contracting Our Way to Inequality: Race, Reproductive Freedom and the Quest for the Perfect Child, __ Minnesota L. Rev. __ (forthcoming, 2019), available at SSRN.

“But not yet have we solved the incantation of this whiteness, and learned why it appeals with such power to the soul; and more strange and far more portentous—why, as we have seen, it is at once the most meaning symbol of spiritual things, nay, the very veil of the Christian’s Deity; and yet should be as it is, the intensifying agent in things the most appalling to mankind.” —Herman Melville1

Consider this breezy narrative published a few years ago in the New York Times: “I chose my son by clicking and unclicking a series of boxes, not unlike online dating. Some days, I’d scroll through all of the redheads. Other days, all of the Jude Law look-alikes….There was no easy way for me to choose from so many flawless (but relatively indistinguishable) men, particularly when this choice would have such a profound impact on both my life and my child’s. [¶] One of them looked like Tom Brady and had a Ph.D. I added him to my cart.”2 Stories like this are increasingly commonplace and seemingly innocuous. That is, until something goes wrong. For Jennifer Cramblett, that moment came when, already pregnant, she decided to order more sperm from a sperm bank so that, down the road, she and her partner could give their baby a biologically related sibling.3 While on the phone placing her order, she encountered a mixup regarding the donor’s identification number: did Cramblett really mean donor number 380, not 330, the receptionist asked? Did Cramblett request an African American donor? Cramblett replied, “‘No, why would I do that? My partner and I are Caucasian.’”4 As it dawned on her that she was likely pregnant with a mixed-race child, Cramblett’s “excitement and anticipation of her pregnancy was replaced with anger, disappointment and fear.”5 Cramblett ultimately sued the sperm bank alleging harms stemming from the sperm bank’s racial mistake.

Cramblett’s personal misfortune reveals an unremarked trait shared by the pool of “flawless,” “relatively indistinguishable,” Jude-Law- and Tom-Brady-like sperm donors in the New York Times story: their whiteness. Some people may see nothing wrong with the practice of selecting sperm or eggs because of the perceived race of the donor. Others may be troubled by the prospect of racially motivated gamete selection but view it as an unfortunate side effect of respecting individual autonomy.6 In her thoughtful and provocative new article, Contracting Our Way to Inequality: Race, Reproductive Freedom and the Quest for the Perfect Child, Professor Camille Gear Rich challenges these views. She uses Cramblett’s lawsuit against the sperm bank as a jumping-off point to show how the Assisted Reproductive Technology (“ART”) market packages race and produces the discriminatory preferences that ultimately lead to racial subordination. By detailing the market framework for the exercise of supposedly private preferences, Rich calls attention to the ways in which the law can subsidize or alternatively dismantle private discrimination.

Rich begins the article by describing the different ways in which ART providers package and sell race.  This packaging begins far before the point of sale. Donors are screened for “undesirable” traits such as mental illness or a history of incarceration. They are also excluded if they are too short or overweight, or do not have aesthetically pleasing bodies. ART providers also screen based on proxies for intelligence like SAT scores and educational accomplishments. All of these decisions are motivated by the providers’ perceptions of market demands.

The packaging of race takes place within this context. The demand for certain racial backgrounds is higher, resulting in higher payments to donors from those groups, as well as a larger pool of samples for consumers to choose from. For example, although 60% of Americans identify as white, 80% of sperm and eggs come from white donors. These choices are meaningful. The relative overabundance of white gametes means that white consumers are less likely to be challenged to look beyond their group and that non-white consumers might perceive that the ART industry is not for them. Moreover, race is socially rather than biologically based. Providers are ultimately marketing racially-associated phenotypes rather than any essential set of traits. Underscoring the degree to which race is a social construct, while donors are prompted to identify their racial backgrounds, providers actually make the final determination categorizing the gamete donors into specific racial categories. Deciding which phenotypes should be associated with which racial category—for instance, by assigning mixed-race individuals to one or another category—is another way that providers shape racial understandings.

The way in which donor gametes are presented to consumers as products also has pernicious effects. The websites of most major sperm banks typically ask consumers to identify their own race as well as the race of their desired donor, effectively highlighting the centrality of race to their ultimate decision. Results are then filtered by the seller’s predetermined racial categories, suggesting that people with certain phenotypes should naturally be associated with certain racial categories and, more broadly, suggesting that race has a biological basis. Fascinatingly, even whiteness is not immune to the effects of this packaging and commodification. Rich notes that “consumers are being invited into a catalogue of elite whiteness that celebrates whiteness in an artificial and surreal form.” (P. 20.) Donors are on average “taller, more physically fit, more accomplished, and more traditionally beautiful than the general pool of whites in the United States.” (P. 20.) She speculates that this commodified whiteness has several consequences. The purchasing experience reinforces a narrow definition of whiteness. This perception prompts customers to purchase a better version of whiteness rather than seek to replicate themselves. In the process, it reveals the existence of “marginal whiteness”—that there are “more and less privileged versions of white identity”—and suggests that consumers may be responding to fears of marginalization. (P. 21.)

What might be seen as a private racial preference, then, is ineluctably shaped by the ways that clinics and consumers perceive and respond to market forces. By analyzing racial mix-up cases such as Cramblett’s, Rich identifies exactly what consumers believe they have purchased: a family unit that will appear “natural” and will not draw undue scrutiny or inquiry (Pp. 34-36); immunity from having to interact with people from different cultural backgrounds (Pp. 37-38); and the avoidance of exposure to racial discrimination (Pp. 38-39). These consumer expectations reveal that the marketing of race ultimately promotes a “white intra-group esteem system that helps to maintain the white monoracial family norm.” (P. 39.)

If Rich were to end the article at this point, she would already have made an important contribution. But she also devotes attention to analyzing how best to respond to some of these market-facilitated distortions. She does this first by questioning whether reproductive freedom necessarily entails the right to purchase racial essence. She points out that scholars have often conflated the concepts of reproductive freedom with technological developments in the ART market, uncritically accepting that the technologies reflect private choices beyond the reach of the state. But she notes that the state has regulated procreative freedom in order to promote its views in cases and controversies concerning contraception, abortion, and welfare, mostly to the detriment of poorer women of color. (P. 42.) She also argues that equality commitments embodied in the equal protection clause could support state interventions. In the voting context, for example, the Supreme Court rejected the practice of identifying candidates by their race on ballots because such labels could trigger improper considerations of race at a critical moment—in the voting booth. In the affirmative action context, the Court has recognized that racial labeling can interfere with individualized consideration, promoting inequality. Many of these doctrinal developments have emerged in cases with decidedly unprogressive ends, and I remain skeptical that courts would deploy them in a neutral fashion. That said, Rich shows that the arguments are there to be made.

This brings us to Rich’s proposed solutions. She argues that the ultimate goal of any intervention should be to encourage ART consumers to abandon biological concepts of race and look beyond racial categories. (P. 51.) By this point in the article, I was expecting a proposal along the lines of R. Richard Banks’s proposal to prohibit adoption agencies from racially classifying adoptive children in order to facilitate race-based selection.7 Rich takes a different approach. Perhaps recognizing that any blanket ban on the marketing of race would fail if consumers could continue to look at donor photos and shop based on racially salient features like hair or eye color, Rich focuses on channeling consumer behavior. First, she proposes that the U.S. restrict the importation of gametes from European countries like Denmark and the Czech Republic, disrupting American consumers’ global search for white gametes and opening the possibility that supply would come instead from a more diverse domestic pool of donors. (P. 52.) Second, she proposes that clinics should be required to post a series of warnings and disclaimers about race—for instance, that there is no genetic basis for race; that the mechanisms by which phenotypes are transmitted are not fully understood; and that the phenotypes of a given donor are not guaranteed to be present in the donor’s child—to change consumer behavior. (P. 54.) And third, she proposes that the government could offer subsidies to ART providers that do not use race to characterize gametes. (P. 55.)  Although these interventions would not stop consumers from selecting phenotypes associated with race, they would likely result in consumers being exposed to donors from different backgrounds and invite consumers to recognize similarities across race.

The concerns addressed by Rich in this article connect two stories that dominated the news as I drafted this review: first, the mass shooting of Muslims in New Zealand, which sources suggest was motivated by white supremacy, in particular, belief in the white race’s biological distinctiveness;8 and second, the college admissions scandal, which, at its heart, is about purchasing, and thereby reproducing, privilege.9 The ART market contributes to the notion that whiteness can be perfected and that race—like other markers of prestige—has a price. Rich joins scholars like Banks and Russell Robinson10 in showing that racial preferences within the intimate realm are rarely ever purely private or harmless. Especially at this moment, we ought to consider very seriously Rich’s argument that marketing race is wrong and that the law should do something about it.

  1. Herman Melville, Moby-Dick 169 (Harrison Hayford & Hershel Parker eds., 1967).
  2. Dawn Bovasso, An Open Egg Donor, Now Reversing the Role, N.Y. Times, Feb. 19, 2015.
  3. Complaint at ¶ 13, Cramblett v. Midwest Sperm Bank, LLC, 2014 WL 4853400 (Ill. Cir. Ct. Sept. 29, 2014) (No. 2014-L-010159).
  4. Id. ¶ 15 (emphasis added).
  5. Id. ¶ 17.
  6. See, e.g., Dov Fox, Race Sorting in Family Formation, 49 Fam. L.Q. 55, 66 (2015); Dov Fox, Choosing Your Child’s Race, 22 Hastings Women’s L.J. 3, 6-8 (2011).
  7. See R. Richard Banks, The Color of Desire: Fulfilling Adoptive Parents’ Racial Preferences Through Discriminatory State Action, 107 Yale L.J. 875, 883 (1998) (proposing to end the practice of facilitative accommodation for white adoptive parents in furtherance of the goal of ridding the adoption system of racial preferences). To be clear, Banks was talking about the actions of public agencies. I understand, and Rich acknowledges, that the pathway to achieving this outcome would be different when thinking about private actors. (See P. 47).
  8. See, e.g., Nellie Bowles, “Replacement Theory,” a Racist, Sexist Doctrine, Spreads in Far-Right Circles, N.Y. Times, Mar. 19, 2019.
  9. See, e.g., John Eligon & Audra D. S. Burch, “What Does It Take?”: Admissions Scandal Is a Harsh Lesson in Racial Disparities, N.Y. Times, Mar. 13, 2019.
  10. See, e.g., Russell K. Robinson, Structural Dimensions of Romantic Preferences, 76 Fordham L. Rev. 2787 (2008) (exposing the ways that online dating services facilitates race-based selection of intimate partners).
Cite as: Kaiponanea Matsumura, Purchasing Race; or, The Pursuit of White Sperm and Eggs, JOTWELL (April 11, 2019) (reviewing Camille Gear Rich, Contracting Our Way to Inequality: Race, Reproductive Freedom and the Quest for the Perfect Child, __ Minnesota L. Rev. __ (forthcoming, 2019), available at SSRN), https://family.jotwell.com/purchasing-race-or-the-pursuit-of-white-sperm-and-eggs/.

A New Vision for LGBT Rights Critique and Reform

Libby Adler’s remarkable 2018 book, Gay Priori, joins a long list of academic critiques of the LGBT rights movement. But Adler sets herself apart in three critical ways: First, Adler does not blame LGBT advocates but instead locates advocates in a broader framework of “LGBT equal rights discourse” that comprehends only some harms and envisions only some solutions. Second, Adler is not satisfied with merely critiquing the prevailing approach to LGBT rights. Rather, she translates her theoretical arguments into an affirmative vision for reform—a vision that keeps faith with law. Third, Adler’s prescriptive claims do not sound in radical transformations that most LGBT advocates would dismiss as impractical. Instead, she offers realistic, grounded, and detailed forms of intervention that LGBT advocates would support and can implement. Gay Priori is a powerful call to action that manages to be both theoretically sophisticated and practically oriented. It is perhaps the most careful, grounded, and constructive critique of mainstream LGBT rights work one can read.

First, consider Adler’s treatment of what she terms “LGBT equal rights discourse.” A familiar set of practices, narratives, priorities, and frames shapes law reform on behalf of subjects who are understood to have a minority identity based on sexuality and/or gender identity. With the emphasis on judicial neutrality and formal equality in constitutional and antidiscrimination law, marriage access and nondiscrimination mandates appear as logical priorities. LGBT equal rights discourse, Adler observes, also resonates with neoliberal impulses toward privatization and personal responsibility, again making understandable the focus on marriage and employment nondiscrimination.

When problems are framed in terms of LGBT identity and reforms are imagined in the registers of equality and nondiscrimination, the range of issues and responses is relatively narrow. Wide-ranging problems that affect vulnerable LGBT individuals, but that are not limited to LGBT populations and are not captured by explicit anti-LGBT sentiment, can be obscured. Or, if they are noted, the response may take the form of LGBT-specific solutions that fail to meaningfully address the problem. For example, the focus on nondiscrimination may occlude the high rates of homelessness among LGBTQ youth. If the homelessness problem is identified, it may be difficult to manage a workable solution without moving outside of conventional LGBT frames.

Even if I am not entirely persuaded by Adler’s relatively comprehensive characterization of LGBT rights work as wedded to “formal equality,”1 her diagnosis and critique are powerful. Adler’s treatment of those doing the LGBT rights work she criticizes is especially noteworthy. Avoiding a common mistake in academic critiques of the LGBT rights movement, Adler makes clear that the problems she identifies are not advocates’ fault.2 She expressly disclaims any “charge of nefarious intent to harm or exclude” by “[t]he well-intentioned leaders of the LGBT law reform movement.” (P. 4, 7.) Instead, “even our most savvy and sophisticated leaders…are ‘subjects’, too; they are…shaped by the same knowledge that shapes the rest of us.” (P. 140.) The state of affairs that Adler describes “can be critiqued and interrupted,” but it requires “conscious deliberation.” (P. 7.)

One should not underestimate the significance of this move. Adler’s analysis allows us to appreciate the constraints under which advocates operate and to intervene constructively—recognizing the good faith in which both the advocate and critic are operating. This is crucial, because Adler does not limit her intervention to critique. Rather—and this is the second important distinguishing feature of the book—she offers an affirmative vision for law reform going forward.

Adler’s vision of reform grows out of and takes cues from her powerful critique. She urges “a reconceptualization of the relevant constituency,” shifting the priority away from “LGBT people as an undifferentiated, rights-bearing identity group seeking equality,” and toward “vulnerable LGBTQ subpopulations seeking the best possible bargains for themselves in a world in which their prospects and decisions are heavily conditioned by law.” (P. 178.) This shift, Adler shows, requires moving away from a recognition model of LGBT advocacy (á la Nancy Fraser’s work)3 and toward a distributional model (á la Judith Butler’s work).4 Adler’s distributional approach draws on legal realism and critical legal studies. Resisting the view that law intervenes against some natural baseline, Adler seeks to uncover the background legal conditions that shape our interactions and structure the alternatives available to us.

Unlike many prominent critiques of the LGBT movement, Adler does not give up on law. She rightly points out that what are often framed as critiques of “law” are in fact critiques of “litigation,” or even a certain type of litigation—the impact cases like the ones used to pursue marriage equality. Law reform, in Adler’s vision, should be approached not as a top-down enterprise but instead as a bottom-up endeavor, with advocates learning from and responding to actors on the ground. Accordingly, Adler directs the law reformer’s attention toward “the immediate legal conditions in a local population’s experience.” (P. 170.) Rather than see a single broad-scale intervention as an answer to the problems facing LGBT people, Adler looks across various domains, finding “obstacles to work, safety, nutrition, housing, health care, and so on,” and seeking “low-profile” interventions. (P. 170.)

At times, Adler may underestimate the extent to which LGBT movement leaders are already acting in ways she envisions. For example, in the family law space, advocates are pressing parentage reform that does not merely facilitate queer family formation but attends to background conditions that constrain the efforts of LGBT individuals with fewer resources. Lack of access to healthcare may lead some same-sex couples to engage in donor insemination without the oversight of medical professionals. In response, LGBT advocates have worked to remove physician assistance requirements from laws regulating donor insemination. Reforms of this kind benefit not only LGBT individuals, but also others who rely on donor gametes to have children.

Like these family law efforts, the interventions Adler advocates are small-scale and practical. Here is the third critical feature of Adler’s contribution. When some critics of marriage equality work have moved into more prescriptive registers, they have argued that the LGBT movement should have pursued wide-ranging reforms—for instance, universal healthcare rather than marriage as a route to employer-provided health insurance.5 Universal healthcare would be a good thing (and today is more politically plausible), but advocates made decisions in light of constraints and limitations in the legal and political context they occupied. Adler, it seems, appreciates this. Instead of leveraging her critique in ways that lead to proposals that are impractical in the current moment, she supplies detailed elaborations of grounded and practical interventions.

Adler offers the case of LGBTQ youth to demonstrate the type of reform efforts she imagines. Vulnerable youth find their choices constructed—and constrained—by legal conditions that exist across a range of substantive areas that are generally not understood as “LGBT law.” The law’s privileging of parental authority, the regulation of the foster care system, the legal constraints placed on minors seeking to engage in work and commercial transactions, the policies of homeless shelters, policing practices, and the criminalization of sex work together influence the path of LGBTQ youth. Making relatively small changes in these various domains could dramatically affect the alternatives available to LGBTQ youth navigating difficult circumstances.

Consider a concrete illustration. Many assume that parents naturally exercise authority over their children. On this view, the state’s unwillingness to interfere with parental control over LGBTQ children simply represents the state’s recognition of and deference to a pre-political state of affairs. But, as Adler shows, this view is wrong. Law is in fact intervening when it makes the decision to vest parents with authority over their children that allows them to engage in homophobic and transphobic parenting. One could imagine regulating parents in ways that conceptualize certain forms of homophobic and transphobic parenting as the type of abuse and neglect prohibited by the state. Adler makes similar observations with respect to foster parenting. As Jordan Woods argues, the state could affirmatively protect LGBTQ children entering foster placements by requiring LGBTQ-affirming parenting.6 But instead, in the vast majority of states, the law does little to prevent children from being placed in hostile households. These background legal conditions shape and limit the range of alternatives available to LGBTQ youth when parents are unwilling to accept their children’s sexual orientation or gender identity. Constraining parental authority and requiring foster parents to be LGBTQ-affirming would alter the conditions under which LGBTQ youth make decisions and could significantly improve the material circumstances of some LGBTQ youth.

Other background legal conditions, such as those regulating minor’s access to housing and credit, shape the path of vulnerable LGBTQ youth. As Adler explains, “the laws conditioning parenting practices combined with the laws conditioning youth self-support structure survival alternatives for youth. The real consequence of these restrictions on youth is to push them into the informal, or underground, economy.” (P. 200.) Sex work is a critical part of that economy. As one study suggests, “between a quarter and a half of homeless youth engage in sex work during their period of homelessness.” (P. 201.)

Sex work provides a useful way to see how Adler’s prescriptive claims are importantly distinct from other critiques of LGBT rights work. Scholars have criticized the marriage equality campaign for repudiating the sex-positive impulses that formed the basis for queer organizing. As Michael Warner famously argued, even though “[g]ay political groups owe their very being to the fact that sex draws people together…, often the first act of gay political groups is to repudiate sex.”7 The marriage equality movement, on Warner’s view, benefitted “[t]hose whose sex is least threatening,” while “[t]he others, the queers who have sex in public toilets, who don’t ‘come out’ as happily gay, [and] the sex workers…are told…that their great moment of liberation and acceptance will come later.”8 In this light, sex work—decriminalization? labor regulation?—appears as a priority for a sex-positive queer agenda.

Adler’s approach to sex work, in contrast, is part of a distributional intervention. LGBTQ youth exchange sex for money, shelter, and food, and their bargaining posture is shaped by legal rules and enforcement decisions. Appreciating how vulnerable LGBTQ youth are situated in the bargaining environment could lead lawmakers to ask whether particular interventions help or hurt that population. Do prostitution-free zones make sex work more dangerous? Is the same true for the criminalization of buying sex? What about enforcement actions against online platforms for the sale of sex? Through Adler’s lens, the criminal prohibition on the sale of sex is problematic, not merely because it trades on the stigma of sexual activity that defies conventional norms, but because it makes vulnerable LGBTQ youth less safe and limits their income. Further, enforcement with respect to low-level crimes associated with sex work delivers LGBTQ youth to the criminal system. As Alexandra Natapoff’s arresting new book, Punishment Without Crime, reveals, entry into the misdemeanor system can dramatically affect one’s ability to survive—to work, find housing, and pay for necessities—for the rest of one’s life.9 Natapoff’s central concerns with race and class meet Adler’s focus on sexuality and gender, demonstrating what intersectionality means in practice for a movement committed to the wellbeing of all LGBTQ populations.

Ultimately, Adler offers perhaps the most compelling bridge between theory and practice in the LGBT space. Resisting the stark distinction between scholarly critique and movement lawyering that often pervades debates of this kind, Adler shows why “[t]he continuous practice of critique is vital to law reform.” (P. 215.) This is not to suggest that there are not barriers to the type of reform efforts Adler endorses. Given that LGBT legal organizations rely on funding from donors who are mostly wealthy and white, those donors must be made to see the work that Adler envisions—work that generates fewer headlines and has less concrete benefit for the donor base—as worthy of pursuit. Efforts of this kind are not impossible. Adler relies extensively on LGBT poverty research produced by the Williams Institute (P. 176), an organization for which I served as Faculty Director from 2015 to 2017. The Williams Institute’s donors grew to understand the importance of poverty work as an LGBT priority and have financially supported that work. Surely donors at other LGBT organizations (some of whom are also Williams Institute donors) are moving toward greater support for poverty work and other efforts aimed at the most vulnerable members of the LGBT population. With this in mind, Gay Priori should be required reading not only for scholars of law and sexuality and lawyers leading LGBT organizations, but also for those who identify with, support, and fund LGBT causes.

Douglas NeJaime is the Anne Urowsky Professor of Law at Yale Law School.

  1. See Douglas NeJaime, Differentiating Assimilation, 75 Studies in Law, Politics, and Society 1, 4 (2018) (in the LGBT context, showing how, “[t]hrough claims premised on sameness and inclusion, features that mark the excluded group as different can be subtly integrated into law” and “institutions can be reconstituted in ways that reflect the distinctive aspects of those long subject to inclusion”).
  2. See, e.g., Dean Spade, Normal Life: Administrative Violence, Critical Trans Politics, and the Limits of Law 65 (2011) (asserting that “[t]he gay rights agenda…has come to reflect the needs and experiences of…[t]he mostly white, educationally privileged paid leaders” of nonprofit legal organizations and that “the lesbian and gay rights agenda has shifted toward preserving and promoting the class and race privilege of a small number of elite gay and lesbian professionals while marginalizing or overtly excluding the needs and experiences of people of color, immigrants, people with disabilities, indigenous people, trans people, and poor people”).
  3. See Nancy Fraser, From Redistribution to Recognition? Dilemmas of Justice in a “Postsocialist Age,” in Adding Insult to Injury: Nancy Fraser Debates Her Critics 9, 20-22 (Kevin Olsen ed. 2008).
  4. See Judith Butler, Merely Cultural, in Adding Insult to Injury: Nancy Fraser Debates Her Critics 42, 50-52 (Kevin Olsen ed. 2008).
  5. See, e.g., Spade, supra note 2, at 61.
  6. See Jordan Blair Woods, Youth, Equality, and the State (draft on file with author).
  7. Michael Warner, The Trouble With Normal: Sex, Politics, and the Ethics of Queer Life 47-48 (1999).
  8. Id. at 66.
  9. Alexandra Natapoff, Punishment Without Crime (2018).
Cite as: Douglas NeJaime, A New Vision for LGBT Rights Critique and Reform, JOTWELL (March 29, 2019) (reviewing Libby Adler, Gay Priori: A Queer Critical Legal Studies Approach to Law Reform (2018)), https://family.jotwell.com/a-new-vision-for-lgbt-rights-critique-and-reform/.

Family Courts as Criminal Courts: A Story of Origins

Elizabeth Katz, Criminal Law in a Civil Guise: The Evolution of Family Courts and Support Laws, __ U. Chi. L. Rev. __ (forthcoming 2019), available at SSRN.

The question of the relationship between criminal law and family law has been amply explored in recent years, the seemingly neat separation between the fields coming under repeated challenge.1 Scholars have tackled the question from a variety of different perspectives: showing us how criminal law can function as family law for a specific section of the population, obliterating in the process basic family law assumptions about privacy and autonomy;2 or demonstrating the ways in which family law and criminal law have always operated in tandem to enforce specific sexual mores or ideals of intimacy.3 In Criminal Law in a Civil Guise: The Evolution of Family Courts and Support Laws, Elisabeth Katz contributes to this body of scholarship in a way that has the potential to unmoor contemporary assumptions about the civil nature of family court jurisdiction.

In this carefully researched and thoughtfully written piece of legal history, Katz concentrates on the history of family courts and their jurisdiction especially in the first half of the twentieth century. Adding a plethora of original sources to the historical literature on domestic relations courts,4 Katz highlights aspects of this history that had perhaps gone underappreciated inside family law.5 At their inception, some of the most influential domestic relations courts in the country focused heavily on the criminal prosecution of nonsupport cases and no one at the turn of the twentieth century would have thought of domestic relations courts as anything other than a branch of the criminal courts. More importantly, Katz argues that criminal jurisdiction over non-support cases continued to be at the core of family courts’ expansive jurisdiction, even as states strategically recharacterized the nature of these courts as civil in order to give judges more flexibility without the necessity of criminal law protections.

Katz tells this story in three steps. The first step is the gradual criminalization of family non-support in the late nineteenth century. States adopted criminal penalties for family non-support, usually at the misdemeanor level, at the behest of overburdened charities using a discourse of paternal moral failures reminiscent of the “deadbeat dads” of more recent welfare reforms. Some criminalized non-support as a felony, but in most states misdemeanor non-support was judged sufficient to qualify for extradition, a tool thought of as necessary in an era of increasingly mobile family deserters.

The second step was the creation of specialized domestic relations courts and the “symbiotic growth of family courts and probation.”6 Domestic relations courts lightened the burden of already clogged criminal dockets and made speedier the enforcement of non-support laws through the heavy use of the probation departments or the government prosecutor. Despite resistance to the creation of family courts from various stakeholders, including the judges who thought that whoever presided over such hearings would “have to be descended straight from the angels”,7 the trend was largely successful, with specialized divisions spreading throughout the country. Probation, an institution considered today a hallmark of criminal procedure, was considered to be at the center of family court jurisdiction. Divorce, today’s staple of family court jurisdiction, did not become part of the family court’s jurisdiction until the second half of the twentieth century. In other words, some elements of modern family law and modern criminal law were delivered as conjoined twins, inextricably linked.

The third and final step in her account describes a historical process whose endpoint, the transformation of domestic relations courts into courts of civil jurisdiction, is so foundational to modern understandings of family law that the Supreme Court took it pretty much at face value in 2011’s Turner v. Rogers.8 In this part of the article, Katz focuses on the nationally influential New York Family Court Act of 1933 that wrestled domestic relations and juvenile delinquency cases away from the lower criminal court system and created a standalone court, whose powers, however, continued to heavily rely on the criminal law system. Notably, incarceration for contempt, at stake in Turner, remained a tool regularly used by the judges, in terms identical to the straightforward punitive jail term for nonsupport.

While many elements of this story have been amply told by historians before, Katz’s article brings to the foreground several that can potentially shift contemporary understandings of family law jurisdiction as a civil, certainly in the child support enforcement aspects. To begin with, Katz argues that the shift of family courts from criminal to civil jurisdiction that began happening around the ninety thirties was not only partial; it was intentionally so. In other words, reformers desired to retain the most effective pieces of criminal jurisdiction, including incarceration and probation, without the delays and procedural safeguards of the criminal law machinery. The civil approach, which still allowed incarceration for non-support and incorporated the threat of extradition, proved to be highly effective in inducing compliance with support orders. Presaging Turner, several courts that dealt with constitutional challenges to the domestic courts’ jurisdiction relied on the “civil” tag to justify withholding procedural protections such as the right to a jury trial.As Katz highlights, this meant that “defendants faced state personnel and powers typical of the criminal context, but without criminal procedure protections.”9

As Katz points out, this history also complicates the field’s persistent notions of privacy as a foundational, operative concept in family law that only later gets challenged through the operation of domestic violence enforcement and women’s constitutional equality rights. Katz highlights instead that at the very creation of domestic relations courts, the state employed a vast bureaucracy charged with close supervision and surveillance of families. In addition, and by contrast to Jacobus tenBroek’s classic account of a dual family law,10 one for the well-off and one for the poor, Katz suggests that family law at its inception in the twentieth century was intensely public and interventionist “at a range of income levels.”11 This last claim could probably benefit from more extensive documentation, since Katz recognizes that the vast majority of child-support debtors came from the recent immigrant populations, such as the Jews and the Irish in New York, or from the African-American community in the south.

The final part of the article directly engages with the implications of this history for Turner, highlighting the circularity entailed in relying on the label “civil” for determining the outcome of a case which essentially asked the court to decide whether the label “civil” should be taken at face value. Given the prior court history emphasized by Katz, the Supreme Court’s formalist reliance on the label becomes even more problematic. As an alternative, Katz suggests that a graduated approach might be more appropriate with constitutional protections against state action triggered when: 1) incarceration is threatened; 2) the state’s involvement goes beyond the interest in ensuring the fair administration of justice; and 3) government employees other than the judges control various stages of the proceedings. As is often the case with new proposed doctrinal solutions to doctrinal problems, Katz’s suggestion raises perhaps an equal number of questions as the ones she resolves. What does “beyond the interest in the fair administration of justice” mean exactly? Does requirement number one combined with requirement number three mean that many of the typical scenarios of welfare state intervention, including threatened removal of children for abuse or neglect, will now trigger constitutional law protections? More broadly, why try to solve what seems to be essentially a legal policy question by re-establishing a doctrinal test that at some level is bound to reproduce a formalist distinction between the civil and the criminal?

Overall, Katz has contributed a piece of legal history that is important and compelling. As I sat in the Family Court division of the DC Superior Court with my students recently, and watched a steady stream of poor, pro se, minority litigants attempt to convince the judge that they deserved custody in a legal language most clearly did not understand, I thought that the story of family courts as poor people’s courts has many more episodes that need telling.12 Katz’s article certainly complicated the historical picture in a way that is interesting and bound to provoke more discussion within the field.

  1. See, e.g., Melissa Murray, Strange Bedfellows: Criminal Law, Family Law, and the Legal Construction of Intimate Life, 94 Iowa L. Rev. 1253 (2009); Tonya L. Brito, Fathers Behind Bars: Rethinking Child Support Policy Toward Low-Income Noncustodial Fathers and Their Families, 15 J. Gender Race & Just. 617 (2012); Cynthia Godsoe, Redefining Parental Rights: The Case of Corporal Punishment, 32 Const. Comment. 281 (2017); Jeanie Suk, Criminal Law Comes Home, 116 Yale L.J. 2 (2006); Andrea L. Dennis, Criminal Law as Family Law, 33 Ga. St. U.L. Rev.  285 (2016).
  2. See, e.g., Suk, supra note 1; Dennis, supra note 1.
  3. See, e.g., Murray, supra note 1.
  4. See, e.g., Anna R. Igra, Wives Without Husbands: Marriage, Desertion, &Amp; Welfare In New York, 1900-1935 (2007); Michael Willrich, City Of Courts: Socializing Justice In Progressive Era Chicago (2003); Amy J. Cohen, The Family, the Market, and ADR, 2011 J. Disp. Resol. 91, 100-103 (2011).
  5. With exceptions as Katz notes. See, e.g., Amy J. Cohen, supra note 4; Janet Halley, What Is Family Law?: A Genealogy Part II, 23 Yale J.L. & Human. 190 (2011).
  6. P. 22.
  7. Want Special Court for Domestic Woes, N.Y. TIMES, Jan. 29, 1909, at 4. Cited in Katz, P. 29.
  8. 564 U.S. 431 (2011).  In Turner, the U.S. Supreme Court held a state must provide safeguards to reduce the risk of erroneous deprivation of liberty in civil contempt cases, such as child support cases.  The Court’s decision, however, stopped short of requiring states to provide counsel to indigent defendants in civil contempt child support cases.
  9. P. 43.
  10. Jacobus tenBroek, California’s Dual System of Family Law: Its Origin, Development, and Present Status: Part I, 16 Stan. L. Rev. 257 (1964).
  11. P. 8.
  12. Elizabeth L. MacDowell, Reimagining Access to Justice in the Poor People’s Courts, Geo. J. On Povert L. & Pol’y 473, 478-79, 488-94 (2015).
Cite as: Philomila Tsoukala, Family Courts as Criminal Courts: A Story of Origins, JOTWELL (January 8, 2019) (reviewing Elizabeth Katz, Criminal Law in a Civil Guise: The Evolution of Family Courts and Support Laws, __ U. Chi. L. Rev. __ (forthcoming 2019), available at SSRN), https://family.jotwell.com/family-courts-as-criminal-courts-a-story-of-origins/.

Need, Dependency, and Choice

Emily J. Stolzenberg, The New Family Freedom, 59 B.C. L. Rev. 1983 (2018), available at SSRN.

Emily Stolzenberg’s excellent article, The New Family Freedom, outlines the tension within American society in general, and American family law in particular, between protecting individual choice (autonomy), on one hand, and having private (rather than collective) responsibility for dependency, on the other.

Choice and privatized dependency can conflict: if individuals are responsible for others only when, and to the extent that, they so choose, many dependent persons will not be adequately cared for. As Stolzenberg points out, the conflict between the two principles may be strongest when considering parental obligation, cohabitation, and alimony.

In what the author describes as “strict liability for sex” (P. 2007), fathers have been held subject to child support duties even where conception arose from statutory rape or significant fraud. Even putting aside those extreme cases, the dependency principle would support imposing parental obligations arising from a sort of tort analysis in which men “assume of the risk” (P. 2008) for any children resulting from having sex. Choice – whether through voluntary intercourse, the decision to use IVF or surrogacy (Pp. 2013-14), or voluntary paternity affidavits (P. 2014) – is characterized and offered as the grounds for imposing parental obligations, not as a justification for opting out. It is, as Stolzenberg characterizes it (P. 2013), a “one-way ratchet.” In this area of family law, the imperative to support dependent children overrides in part the autonomy interests of adults.

The legal view of cohabitation tends towards the other pole of protecting choice.  Vulnerable adults in romantic relationships are protected only if they chose to marry, or if consent for protection was shown through an express contract. As Stolzenberg’s article shows, courts sometimes allow former cohabitants to recover under a theory of implied contract, but that approach looks bad viewed either from the perspective of autonomy or dependency: the recovery given to vulnerable ex-partners tends to be inadequate, and when it is given, the evidence of choice justifying the outcome tends to be flimsy.

As Stolzenberg reports: “Strict-choice states, which deny recovery when intimate partners fail to formalize their family intentions, end up elevating the richer cohabitant’s property rights over the poorer cohabitant’s claims for economic justice.” (P. 2023.) However, the question might be pressed, what are the grounds of “the poorer cohabitant’s claim[] for economic justice”? With marriage, there is an argument (clearest in community property states) that getting married is entering a partnership with equal sharing; that is just the nature of the institution. Outside of marriage, the arguments tend to be in terms of need, sacrifice, unjust enrichment, and reasonable expectations. The moral claim of need is significant, but some might respond that it is society in general that owes support to its neediest, and that intimate partners should carry the primary duty only if they have voluntarily shouldered responsibility or are in some significant way at fault (a tort-like analysis, like Stolzenberg’s “assumption of risk” argument discussed above). Of course, there are clear cases of unjust enrichment, in cohabitation as in marriage: e.g., when one partner supports the other through professional school, and immediately thereafter the couple splits up. Many states recognize short-term alimony, at least for formerly married couples, in such circumstances. However, mostly the claims from long-term cohabitation involve partners who give up their careers to take care of the home and children, while their partners further their careers and earning capacity. While such relationships are ongoing, the couple generally shares the benefits. What is the basis for a claim for support, or for the equitable redistribution of property, after the couple splits up? Perhaps much comes down to (reasonable) expectations. Katherine Franke has argued that, at least with many same-sex couples, there is no expectation of sharing beyond the end-point of the relationship.1 In any event, once we are speaking about the parties’ expectations, we seem to be back in the arena of choice.

Given the sharp dichotomy between married and non-married couples in American family law, some readers may be surprised by the trends in alimony law that Stolzenberg chronicles. Like the law of cohabitation, alimony law seems to be moving towards an official view that former partners are expected to support themselves. As the article describes (Pp. 2033-2034), there are economic and partnership theories that can justify indefinite alimony (at least for long-term marriages where one partner has made significant career sacrifices), but these seem to have become insufficient to persuade payors – and their representatives in state government. (Pp. 2034-2037.) Many states legislatures (and state courts) now favor short-term alimony or no alimony at all.

As with cohabitation, so with alimony, we need to consider the underlying justifications. At the beginning of the article (P. 1986), Stolzenberg refers to In re Marriage of Wilson.2 In that case, a woman became permanently disabled during a marriage of less than six years.The disability occurred due to an injury and subsequent infection, and was not related to the marriage, the length of the marriage, or her husband’s behavior. At divorce, the court imposed alimony, but then terminated it just short of five years later. The former wife was in great need, but arguably, her claim for assistance should be against society generally, rather than against her former husband.

Stolzenberg ends the article with proposed reforms which she admits are “incremental” and “partial” (P. 2038): e.g., “eliminating or reducing paternal child-support liability in cases of less-than-voluntary sexual conduct” (P. 2045), offering different rules for cohabitation based on duration (P. 2048), and favoring property redistribution over alimony as a way of responding to long-term need. (P. 2049.)

The article forcefully displays the tension between choice-based law and privatized dependency. Allowing family obligations to depend on a clear showing of consent is likely defensible only (if ever) in a society that offers greater collective responsibility for responding to dependency. And as Stolzenberg observes, “[r]eforming family law begins with rethinking our broader political economy, but it does not end there.” (P. 2052.)

  1. See Katherine Franke, Wedlocked 209-26 (2015).
  2. 201 Cal. App.3d 913, 247 Cal. Rptr. 522 (1988).
Cite as: Brian Bix, Need, Dependency, and Choice, JOTWELL (November 1, 2018) (reviewing Emily J. Stolzenberg, The New Family Freedom, 59 B.C. L. Rev. 1983 (2018), available at SSRN), https://family.jotwell.com/need-dependency-and-choice/.

Expanding Liberty to Privatize Dependency: How the Evolution of Marriage Has Shaped Constitutional Law

Susan Frelich Appleton, Obergefell’s Liberties: All in the Family, 77 Ohio St. L.J. 919 (2016), available at SSRN.

The Supreme Court’s ruling in Obergefell v. Hodges1 was a watershed moment not only in the history of the LGBT movement, but also in the relationship between family law and constitutional law. In the two years since it was decided, the ruling has become the subject of insightful commentaries from many of the legal academy’s leading scholars. This jot highlights one such article by Susan Frelich Appleton that merits special attention from scholars working in the fields of family law and constitutional law.

Appleton’s article makes two significant contributions to our understanding of the relationship between family law and constitutional law.

First, Appleton explains how marriage operates as an illuminating exception to the traditional binaries between public/private spheres and positive/negative rights. As she explains, the Court’s treatment of marriage in Obergefell reveals several ways in which that institution violates two closely related and widely shared paradigms: (1) that the Constitution protects a “private realm of family life which the state cannot enter,” and (2) that the Constitution guarantees only “negative rights”—“freedom from government action, not entitlement to government benefits.” Through a brief summary of the Court’s abortion funding and child abuse cases, Appleton demonstrates how both paradigms won over a majority of the Court and became part of constitutional law’s “conventional wisdom,” during the 1980s.

In Obergefell itself, the dissenting Justices took the majority to task for disrupting these paradigms—for “convert[ing] the shield provided by constitutional liberties into a sword to demand positive entitlements from the State.” (P. 928). But as Appleton shows, these criticisms obscure a much wider, more diverse set of meanings than the majority gives to the term “liberty” in Obergefell. In particular, she shows that the majority’s opinion in Obergefell relies upon four discrete meanings of the “liberty” protected by the Due Process Clause, each of which was sharply criticized by the dissenting Justices: (1) a “public liberty,” which “impose[s] an affirmative obligation on government” (P. 939-940.); (2) a private and “naturalized liberty,” which protects “sex, reproduction, and childrearing” as “inherently natural” activities (P. 941-944.); (3) a private and “equal liberty,” which “protects against the discriminatory distribution of state benefits, without making such benefits . . . constitutionally required” (P. 944-946.); and (4) what Appleton refers to as a potentially “feminist,” “critical,” or even “queer” liberty, which casts the activities of marriage, sex, reproduction, and childrearing as “a unified whole,” thereby blurring the traditional boundaries between public and private institutions and positive and negative rights. (P. 946-948.)

In contrast to Professor Kenji Yoshino, Appleton expresses skepticism that Obergefell might augur a new era in which the Court will once again become more willing to recognize and protect the existence of new positive rights. As she explains:

Marriage and its unique properties . . . can help reconcile wishful thinking about welfare rights with the modern neoliberal turn. Even if we understand the constitutional right to marry as public and hence as a positive right, entry into marriage functions as a major gateway for private support obligations, explaining why the state incentivizes marriage. . . . Marriage locates the primary source of support for dependents in the ‘private sphere,’ consistent with neoliberalism’s deference to laissez-faire markets and the minimal state. . . . Guaranteeing same-sex couples a right to marry entails yet additional expansion of these private obligations, in line with neoliberal values. (P. 951-952.)

Although this skepticism was expressed while Justice Kennedy remained on the Court, it seems all the more plausible in light of his subsequent retirement. With a clear majority of five conservative Justices, it is difficult to imagine the Court supporting the recognition of any new positive rights as “fundamental.” And the majority’s opinion offers ample reasons for future Justices to limit or distinguish it, based on the ruling’s extensive reliance on the unique history and significance of marriage itself.

Rather than falling victim to the temptation “to mine the analysis and rhetoric of Obergefell for messages” about future rulings, Appleton takes a more theoretical turn toward the article’s end. “Looking beyond Obergefell’s text,” she contextualizes the majority’s opinion within “a wider exploration of the interaction of family law and constitutional law.”

This section begins by recounting the conventional wisdom of the relationship between family law and constitutional law. In this traditional story, set forth by the majority in United States v. Windsor,2 constitutional law shapes family law by establishing boundaries on how states can define families, thereby marking “the outer limits for permissible family laws.” (P. 963). In contrast, Appleton analyzes a long line of Supreme Court cases to illustrate how family law’s policy of identifying private sources of support for dependents has shaped various aspects of constitutional law. In particular, she claims that even as privatized dependency has led the Court to expand the definition of “marriage” in cases from Loving to Obergefell, it has simultaneously led the Court to restrict the scope of equal protection, procedural due process, and substantive due process. And it has consistently done so, she observes, in cases that either directly or indirectly involve issues of family law.

In reviewing Obergefell, most commentators (including myself, among many others) have expressed concern that the majority’s opinion seems to invite discrimination against unmarried persons by effusively praising the institution of marriage, while describing unmarried people as “condemned to live in loneliness.”3 By contrast, Appleton worries about a different scenario, in which the institution of marriage increasingly serves as a neoliberal template for imposing private dependency on more and more non-marital relationships. If this prediction pans out, Appleton’s article presents progressives with a challenging conundrum: If neoliberalism produces more inclusive definitions of “family,” should we embrace this inclusivity and the vision of privatized provision that it underwrites? Or should we be willing to accept a narrower definition of “family,” in exchange for a more “supportive state”?

In the current landscape, it does not seem likely that either of these options is available, as a political matter. Instead, the Trump Administration and the post-Kennedy Court seem more likely to narrow legal definitions of “family” while dismantling the few systems of public welfare that have managed to survive into the neoliberal era. But even in the longer term, Appleton suggests, it seems unlikely that progressives will be able to advance one goal (i.e., the expansion of “family”) without sacrificing the other (i.e., the expansion of governmental support). As Appleton shows, the tensions in the Court’s understanding of “liberty” and “marriage” are the product of deeper tensions in American politics, which are likely to endure long after the Court’s legalization of same-sex marriage becomes a banal aspect of the relationship between family law and constitutional law.

  1. 135 S. Ct. 2584, 2608 (2015).
  2. 570 U.S. 744 (2013).
  3. Clifford Rosky, Same-Sex Marriage Litigation and Children’s Right to Be Queer, 22 GLQ 541, 543 (2016) (quoting Obergefell v. Hodges, 135 S. Ct. 2584, 2608 (2015)); see also Courtney Joslin, Discrimination In and Out of Marriage, 98 B.U. L. Rev. 1 (2018); Melissa Murray, Obergefell v. Hodges and Nonmarriage Inequality, 104 Cal. L. Rev. 1207 (2016); Michael Cobb, The Supreme Court’s Lonely Hearts Club, N.Y. Times (June 30, 2015).
Cite as: Clifford Rosky, Expanding Liberty to Privatize Dependency: How the Evolution of Marriage Has Shaped Constitutional Law, JOTWELL (October 16, 2018) (reviewing Susan Frelich Appleton, Obergefell’s Liberties: All in the Family, 77 Ohio St. L.J. 919 (2016), available at SSRN), https://family.jotwell.com/expanding-liberty-to-privatize-dependency-how-the-evolution-of-marriage-has-shaped-constitutional-law/.

Are Breastfeeding Protections Anti-Feminist?

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.

Cite as: Dara E. Purvis, Are Breastfeeding Protections Anti-Feminist?, JOTWELL (September 6, 2018) (reviewing Meghan Boone, Lactation Law, ___ Calif. L. Rev. ___ (forthcoming 2018), available at SSRN), https://family.jotwell.com/are-breastfeeding-protections-anti-feminist/.

Abortion and the Struggle for Meaning

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.1

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.

  1. Id. at 159.
Cite as: Janet Halley, Abortion and the Struggle for Meaning, JOTWELL (August 6, 2018) (reviewing Carol Sanger, About Abortion: Terminating Pregnancy in Twenty-First-Century America (2017)), https://family.jotwell.com/abortion-and-the-struggle-for-meaning/.

The Story of Parenthood

Douglas NeJaime, The Nature of Parenthood, 126 Yale L.J. 2260 (2017).

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.

Cite as: Courtney Cahill, The Story of Parenthood, JOTWELL (June 22, 2018) (reviewing Douglas NeJaime, The Nature of Parenthood, 126 Yale L.J. 2260 (2017)), https://family.jotwell.com/the-story-of-parenthood/.

Family Law’s Democratic Foundations

Sean Hannon Williams, Divorce All the Way Down: Local Voice and Family Law’s Democratic Deficit, 98 B.U. L. Rev. 579 (2018)

For decades, scholars have heaped scorn on family law’s open-ended legal standards like “equitable” distribution or the “best interests” of the child.1 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.2 They therefore invite—in fact, require—judges to make decisions that resonate with their personal preferences or experiences.3 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.4 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.5

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.

  1. See, e.g., Robert H. Mnookin, Child-Custody Adjudication: Judicial Functions in the Face of Indeterminacy, 39 Law & Contemp. Probs. 226 (1975); Mary Ann Glendon, Fixed Rules and Discretion in Contemporary Family Law and Succession Law, 60 Tul. L. Rev. 1165 (1986); Ira Ellman, Why Making Family Law Is Hard, 35 Ariz. St. L.J. 699 (2003).
  2. See Mnookin, supra note 1, at 229.
  3. See id. at 263.
  4. See, e.g., Mnookin, supra note 1, at 262-65.
  5. See, e.g., Glendon, supra note 1, at 1169-70.
Cite as: Kaiponanea Matsumura, Family Law’s Democratic Foundations, JOTWELL (May 25, 2018) (reviewing Sean Hannon Williams, Divorce All the Way Down: Local Voice and Family Law’s Democratic Deficit, 98 B.U. L. Rev. 579 (2018)), https://family.jotwell.com/family-laws-democratic-foundations/.

Undoing Hellerstedt

The Supreme Court’s 2016 decision in Whole Women’s Health v. Hellerstedt1 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.2

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.3 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,4 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.”5

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.6

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.7 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.8 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,9 nor did it preclude state regulation of “obscene material” being sold in a commercial setting.10 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.11  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.12 S.B. 8 also bans fetal tissue donation, and requires that all tissue obtained during an abortion be buried or cremated.13

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.

 

  1. 579 U.S. ___ (2016); 136 S. Ct. 2292 (2016).
  2. Guttmacher Inst., State Facts About Abortion: Texas (2014), available at https://www.guttmacher.org/sites/default/files/pdfs/pubs/sfaa/pdf/texas.pdf.
  3. Alexa Ura, et al., Here Are the Texas Abortion Clinics That Have Closed Since 2013, Texas Trib. (June 28, 2016), https://www.texastribune.org/2016/06/28/texas-abortion-clinics-have-closed-hb2-passed-2013/. At this writing, the number of abortion clinics in Texas stands at 21, down from 40 in 2013.  Where to Get An Abortion in Texas, NARAL Pro-Choice Tex., http://needabortion.org/en/ (last visited Apr. 6, 2018).
  4. 505 U.S. 833 (1992).
  5. 505 U.S. 833, 877 (1992).
  6. Whole Woman’s Health v. Cole, 790 F.3d 563, 584-90 (5th Cir. 2015), modified, 790 F.3d 598 (5th Cir. 2015), rev’d sub nom. Whole Woman’s Health v. Hellerstedt, 136 S. Ct. 2292 (2016).
  7. See, e.g., The Undue Burden Standard After Whole Women’s Health v. Hellerstedt, Ctr. For Reprod. Rights, https://www.reproductiverights.org/sites/crr.civicactions.net/files/documents/WWH-Undue-Burden-Report.pdf (last visited Apr. 6, 2018).
  8. MKB Mgmt. Corp. v. Stenehjem, 795 F.3d 768, 755 (8th Cir. 2017).
  9. See, e.g., Lofton v. Sec’y of the Dep’t of Children & Family Servs., 358 F.3d 804, 816-17 (11th Cir. 2004).
  10. See, e.g., Williams v. Attorney Gen. of Ala., 378 F.3d 1232 (11th Cir. 2004) (refusing to apply Lawrence to invalidate a criminal ban on sex toys).
  11. See Pavan v. Smith, 137 S.Ct. 2075 (2017) (holding that Arkansas may not, consistent with Obergefell v. Hodges, deny married same-sex couples the opportunity to be listed as parents on a birth certificate); Turner v. Pidgeon, 538 S.W.3d 73 (Tex. 2017), cert. denied, 138 S. Ct. 505 (2017) (considering whether Obergefell answered the question of whether a municipality is required to provide employment benefits to same-sex couples).
  12. This provision is currently being challenged in federal court.  See Complaint, Whole Women’s Health v. Paxton, 1:17-cv-00690 (June 20, 2017).
  13. The fetal tissue cremation requirement was proposed only a few days after Whole Women’s Health v. Hellerstedt was announced. A federal district court blocked the enforcement of the provision.  See Order, Whole Women’s Health v. Hellerstedt, 1:16-cv-01300-SS (Jan. 27, 2017).
Cite as: Melissa Murray, Undoing Hellerstedt, JOTWELL (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/.