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The Shadow of Abortion

Melissa Murray, The Symbiosis of Abortion and Precedent, 134 Harvard L. Rev. 308 (2020).

In her insightful Comment on June Medical Services L.L.C. v. Russo1 in the Harvard Law Review’s Supreme Court Issue, Professor Melissa Murray uncovers the “complicated and constitutive relationship between the Court’s approach to stare decisis and its abortion-related jurisprudence.” (P. 312.) She shows not only that stare decisis principles structure the Court’s abortion jurisprudence, but also that conflict over the abortion right shapes the Court’s approach to stare decisis. In this sense, Murray persuasively demonstrates how abortion casts a long shadow over other bodies of law, not least of which is the trans-substantive question of stare decisis.

Murray’s perspective invites us to appreciate how the abortion conflict provides a template for other struggles, both inside and outside the courts. Without saying so explicitly, her analysis helps us to make sense of ongoing contestation over the meaning and reach of Obergefell v. Hodges,2 the Supreme Court’s 2015 landmark decision recognizing same-sex couples’ constitutional right to marry. Even as same-sex couples exercise the right to marry nationwide, opponents of LGBTQ equality are seeking to narrow and limit the decision’s reach—without asking the Court to expressly overrule it. They rely, often expressly, on the campaign against abortion rights as a model.

Murray analyzes how the Court’s abortion decisions—including most prominently Planned Parenthood of Southeastern Pennsylvania v. Casey­3—constitute “precedent on precedent” (P. 329.) These decisions “shadow all of the Court’s efforts to define and observe the requirements of stare decisis.” (P. 312.) More importantly, they furnish “a blueprint for narrowing, limiting, and eventually overturning earlier precedents.” (p. 330)—a dynamic she terms “transformation-through-preservation,” in a play on Professor Reva Siegel’s famous preservation-through-transformation concept.4 (P. 335.)

Murray extensively documents this blueprint in action in a number of doctrinal areas, ranging from the Establishment Clause to the Sixth Amendment, from campaign finance reform to labor law. In the examples on which Murray focuses, abortion jurisprudence “provides a template for undermining—and overruling—precedent.” (P. 337.) And yet, in the abortion context itself, Roe v. Wade5 remains good law. That is, the very body of law that has supplied the interpretive tools to overturn precedent in other areas continues to withstand attempts at overruling. In this sense, abortion jurisprudence also provides a blueprint for limiting protected rights without overruling precedent. It is here that the abortion struggle supplies a template for conflict over the rights of same-sex couples.

The hollowing-out of Roe has been documented by countless scholars and commentators. In Casey, the Court affirmed Roe as precedent but also reformulated the standard of review in ways that weakened the abortion right. As Murray argues, “by authorizing states to legislate abortion rights out of existence, Casey overruled much of Roe’s substance, substantially curtailing access to abortion for most women.” (P. 315.) In Gonzales v. Carhart,6 the Court upheld ­­­­­the federal Partial Birth Abortion Act without expressly repudiating the precedential status of Roe, Casey, or Stenberg v. Carhart, an earlier decision striking down a similar state law.7 As Justice Ginsburg observed in dissent, Gonzales paid lip service to principles of stare decisis as it “chip[ped] away at a right declared again and again by this Court.”8

June Medical stands as the latest example in this long line of decisions. The Court struck down a Louisiana law effectively the same as the Texas law the Court had struck down just four years earlier in Whole Woman’s Health v. Hellerstedt.9 Of course, the Court’s composition had changed in the intervening period. Chief Justice Roberts, who had dissented in Whole Woman’s Health, now provided the fifth vote to strike down the Louisiana law in June Medical. The four-justice plurality analyzed the law under the same standard articulated by the majority in Whole Woman’s Health—weighing the law’s purported health benefits against the burdens the law imposed on women seeking abortion. Concurring in the result based on principles of stare decisis, Chief Justice Roberts rejected the “balancing” approach adopted by the plurality and the Whole Woman’s Health Court. As Murray contends, “Chief Justice Roberts took a dual-pronged approach—reaffirming Whole Woman’s Health for the purpose of distinguishing it and, in the process, implicitly overruling it.” (P. 325.) As importantly, while professing loyalty to Casey, he further restricted the meaning of that landmark decision.

This strategy is frightening not only for proponents of abortion rights but also for proponents of other rights relating to sexuality, reproduction, and the family. Will the abortion decisions provide a model for limiting the rights of same-sex couples without overruling Obergefell?

In the wake of Obergefell, Arkansas refused to issue birth certificates to married same-sex couples listing both women as parents of the child, even though the state listed both spouses as parents in married different-sex couples, regardless of whether the husband was the child’s biological father. In 2017, the Court in Pavan v. Smith rejected Arkansas’s narrow reading of Obergefell.10 This was clearly the right result. Obergefell itself included “birth . . . certificates” as one of the critical “government benefits” that states “confer on all married couples.” Yet, the Pavan decision was not unanimous. Justices Gorsuch, Alito, and Thomas dissented, expressing sympathy for the state’s attempt not simply to narrow but contravene precedent, reasoning that “nothing in Obergefell indicates that a birth registration regime based on biology . . . offends the Constitution.”

Those seeking to undermine Obergefell have not given up. In 2020, they raised the question again, this time by virtue of Indiana’s refusal to issue birth certificates listing both women in a married same-sex couple as parents. The Court denied cert. in Box v. Henderson. But opponents of same-sex marriage will continue to raise questions of birth registration and parentage that implicate the meaning of Obergefell. Here, key abortion decisions provide a model, illustrating how to simultaneously profess loyalty to and undermine a landmark precedent.

Conflicts over religious exemptions from antidiscrimination mandates also invite judicial attempts to limit the reach of Obergefell. This term, in Fulton v. City of Philadelphia, the Court is considering whether a Catholic social services agency has a right to a city contract for child-placing services even though the agency refuses to abide by the city’s nondiscrimination requirements. The agency contends that its religious view of marriage prohibits it from licensing same-sex couples as foster parents. This case, one of many of its kind, threatens to deprive married same-sex couples of rights that married different-sex couples take for granted.

Disputes over parentage and religious exemptions do not exhaust the cases seeking to limit Obergefell. Consider, for example, the years-long challenge to Houston’s extension of benefits to the same-sex spouses of city employees. The marriage right secured by Obergefell would mean very little if the government could withhold benefits from same-sex spouses that it furnishes to different-sex spouses. And yet cases of this kind have persisted.

Up to this point, the Court has stopped short of restricting Obergefell in ways that mirror the abortion struggle. But opponents of LGBTQ equality continue to press their cause and do so with a seemingly more hospitable Court.

This strategy of limiting—neutering, in Murray’s words (p. 317)—precedent without overruling appears more palatable to the Court when the substantive issue raised is one that has inspired longstanding, fierce, and ongoing society-wide debate. As Murray observes, “overruling [Roe] would invariably expose the Court to claims of partisanship and political opportunism.  And this, in turn, helps explain why the abortion right has, over time, become increasingly narrow.” (P. 349.)

From the perspective of the democratic legitimacy of our constitutional order, this seems upside down. What does the ordinary citizen think when a decision like June Medical comes down? “The Supreme Court Just Ruled 5-4 to Protect Abortion Rights,” a headline read at the time. Is there any indication that, as Murray explains, the Chief Justice’s “selective approach to stare decisis transformed the meaning—and precedential value—of Whole Woman’s Health, as well as the standards by which abortion restrictions will be judged going forward”? (P. 312.) As Reva Siegel puts it in a forthcoming article on June Medical, “It is one thing to reverse Roe and Casey; it is another to pursue that aim through forms of rational basis.”11

The same fear exists in the LGBTQ context. While the increasingly conservative composition of the Court has led some to worry about Obergefell’s overruling, the more real concern is that the Court will chip away at Obergefell—limiting not only its precise protections (such as “the constellation of benefits that the States have linked to marriage”) but also its loftier commitments to protect LGBTQ people from laws that “serve[] to disrespect and subordinate them.” With abortion jurisprudence as a blueprint, it may do so without ever provoking headlines that alert citizens to the deprivation of rights at stake. In this sense, practices of stare decisis being forged by justices hostile to abortion rights pose a profound crisis—not only for the citizens who depend on the rights being adjudicated, but also for the legitimacy of constitutional adjudication in our democracy.

  1. 140 S. Ct. 2103 (2020).
  2. 576 U.S. 644 (2015).
  3. 505 U.S. 833 (1992).
  4. Reva Siegel, Why Equal Protection No Longer Protects: The Evolving Forms of Status-Enforcing State Action, 49 Stan. L. Rev. 1111 (1997).
  5. 410 U.S. 113 (1973).
  6. 550 U.S. 124 (2007).
  7. 530 U.S. 914 (2000).
  8. 550 U.S. at 191.
  9. 136 S. Ct. 2292 (2016).
  10. 137 S. Ct. 2075 (2017).
  11. Reva B. Siegel, Why Restrict Abortion? Expanding the Frame on June Medical, 2020 Sup. Ct. Rev. (forthcoming 2021) (manuscript at *41).
Cite as: Douglas NeJaime, The Shadow of Abortion, JOTWELL (April 12, 2021) (reviewing Melissa Murray, The Symbiosis of Abortion and Precedent, 134 Harvard L. Rev. 308 (2020)), https://family.jotwell.com/the-shadow-of-abortion/.

A Ringing Endorsement of Lawyers, and the Most Important Development in Child Protection Law

Lucas A. Gerber, et al., Understanding the effects of an interdisciplinary approach to parental representation in child welfare, 116 Child. & Youth Serv. Rev. 105163 (2020), available at SSRN.

Two empirical studies demonstrating the impact of vigorous family defense legal work on child protection cases bookended the 2010s.  In 2012, Mark Courtney and Jennifer Hook found that cases in which a specialized interdisciplinary law office (ILO) represented parents had faster reunifications, guardianships, and adoptions than similar cases with different parental representation, though it did not explore how those results were obtained.1  In 2019, Lucas Gerber, Yuk Pang, Timothy Ross, Martin Guggenheim, Peter Pecora, and Joel Miller found that, compared to solo and small office practitioners, ILOs in New York City hastened reunification and guardianships for their clients, leading to 118 fewer days in foster care per child on average, without any negative child safety outcomes.2

The New York City study also led to a 2020 qualitative study3 offering insight into what made these specialized ILOs so impactful and helping define what makes for high-quality parent representation (known as “family defense”). The answer: traditional lawyering, done aggressively and in collaboration with an interdisciplinary team.

Gerber et al. compared cases handled by interdisciplinary law offices where lawyers specialized in family defense and collaborated with staff social workers and parent advocates with similar cases handled by solo and small office practitioners who generally had much experience but lacked the ILOs’ non-lawyer supports. After documenting the empirical differences in 2019, they interviewed parents who had a child protection case filed against them, lawyers from both models of family defense, lawyers for other parties in these cases, and judges, designed to measure what ILO attorneys did differently from solo and small office practitioners. The ILO lawyers demanded more formal procedures for their clients, pushing back against an ethos that downplayed the need for such advocacy – an ethos that commentators have long observed in family courts.4 ILO lawyers advocated more aggressively, filing more motions and insisting upon more evidentiary hearings than other lawyers.  In addition, ILO lawyers better met basic hallmarks of quality legal representation – especially frequent client contact and preparation for all court hearings.

ILO lawyers also leveraged their interdisciplinary teams, which represented clients in out-of-court case conferences and then helped clients find the services they need to follow these plans and regain custody of their children. Notably, Gerber et al. describe even this social work in terms which made clear their status on their clients’ team. Non-lawyer members of the team advocated for clients at case conferences with agency representatives, ensuring case plans were individualized and not more burdensome than necessary. When they helped clients obtain social services, they empowered clients to find services they want and free themselves of dependency on CPS agencies.

What to take from the 2020 qualitative study? First, Gerber et al. offer a ringing endorsement of lawyers acting in their adversary role as essential to the rule of law and functioning of any legal system, even one (like family courts) historically designed to operate less adversarially. This study throws cold water on the notion that traditional lawyering prevents systems from doing what they need to do. (Indeed, the authors report the views of some child protection agency attorneys that vigorous family defense merely slows the process down through unnecessary litigation.) The 2019 study empirically rejected this view, and the 2020 follow-on contribution explains how strong adversarial lawyering helps family courts act with greater accuracy and with limiting interventions into individual liberty.

Second, and more pointed to the next decade of work in the child protection system, the 2020 study takes a significant step toward defining the elements of high-quality family defense. America’s patchwork of state and local family defense systems now can consider how to use newly-provided federal assistance to expand or improve with a guide for what a model system looks like. That guidance is essential because family defense systems generally fall far short of the standard set by New York City ILOs. In South Carolina, where I teach, no such offices exist, and authorities are just figuring out how to ensure parents have attorneys to represent them at court hearings held days after a child is removed, and most of the nation’s family defense systems resemble South Carolina’s rather than New York City’s.

Defining high-quality family defense is particularly important now. In 2019, in perhaps the most important child protection legal development in the past decade or longer, the federal Children’s Bureau opened federal foster care funding to support the provision of legal representation and advocacy for parents.5 That dramatically expanded funding for legal services – which have largely depended on meager state and local funding – provides states the opportunity to improve their family defense models.

This opportunity begs the question – how should states improve their family defense systems? How much must those systems improve to get comparable results to those found in the New York City studies? Must they get all the way to the NYC ILOs, or is some intermediate step sufficient? The best way to answer this is through more quantitative and qualitative research in more jurisdictions like what Gerber et al. have done.

  1. Mark E. Courtney & Jennifer L. Hook, Evaluation of the impact of enhanced parental legal representation on the timing of permanency outcomes for children in foster care, 34 Child. & Youth Services Rev. 1337 (2012).
  2. Lucas A. Gerber, et al., Effects of an interdisciplinary approach to parental representation in child welfare, 102 Child. & Youth Services Rev. 42 (2019).
  3. The full list of authors for the 2020 contribution is Lucas A. Gerber, Martin Guggenheim, Yuk C. Pang, Timothy Ross, Yana Mayevskaya, Susan Jacobs, and Peter J. Pecora.
  4. E.g. Melissa L. Breger, Making Waves or Keeping the Calm?: Analyzing the Institutional culture of Family Courts Through the Lens of Social Psychology Groupthink Theory, 34 Law & Psych. Rev. 55 (2010); Amy Sinden, “Why Won’t Mom Cooperate?”: A Critique of Informality in Child Welfare Proceedings, 11 Yale J.L. & Feminism 339 (1999).
  5. In this season of political transition, it is worth noting that this federal funding for family defense came from the Trump Administration – and that this is one area where the Biden Administration should continue changes enacted by its predecessor.
Cite as: Josh Gupta-Kagan, A Ringing Endorsement of Lawyers, and the Most Important Development in Child Protection Law, JOTWELL (March 26, 2021) (reviewing Lucas A. Gerber, et al., Understanding the effects of an interdisciplinary approach to parental representation in child welfare, 116 Child. & Youth Serv. Rev. 105163 (2020), available at SSRN), https://family.jotwell.com/a-ringing-endorsement-of-lawyers-and-the-most-important-development-in-child-protection-law/.

A Radical, Subaltern Chorus: Saidiya Hartman’s Album of Rebellious Young Black Women

Saidiya Hartman opens her powerful and lyrical Wayward Lives, Beautiful Experiments: Intimate Histories of Social Upheaval with an epigraph from Harlem Renaissance author Nella Larsen’s Quicksand: “She was, she knew, in a queer indefinite way, a disturbing factor.” As I read Hartman’s brilliant narrative recreation of the voices, words, and intimate lives of “young black women,” at the turn of the twentieth century, as they sought “to create autonomous and beautiful lives, to escape the new forms of servitude awaiting them, and to live as if they were free” (P. xiii), another Harlem Renaissance novel came to mind: Jessie Redmon Fauset’s Plum Bun: A Novel Without a Moral (1929). The desire to live free also preoccupies Angela Murray, the young Black woman whose own intimate history and experiments in living are at the center of Plum Bun. While Murray has more economic and family resources and class privilege than the young Black women whose lives Hartman makes palpably and poignantly real to readers, this fictional heroine and these women alike perceive the bar that “the color line” poses—at every turn— to living “as if” free. “Freedom!” is the most frequent “note” in the “melody of living” of which Angela dreams, and she perceives that “[c]olour or rather the lack of it seemed . . . the one absolute prerequisite” to that dream life and to the “difference between freedom and fetters.” (Fauset 13, 137.)

The “fetters” created by the color line’s racial caste system constrain yet fuel the subjects of Hartman’s narrative: young Black women on a quest to rebel and “live free” in the decades between 1890 and 1935, in New York City and Philadelphia. To construct her dazzling portraits of those “wayward” lives, Hartman uses a method of “close narration” by attempting to “inhabit the intimate dimensions” of those lives and place “the voice of narrator and character in inseparable relation.” (Hartman, P. xiii) She draws on “a vast range of archival materials” to “convey the sensory experience of the city and to capture the rich landscape of black social life.” Such archival sources treat these young women as “a problem,” and include “the journals of rent collectors; surveys and monographs of sociologists; trial transcripts; slum photographs; reports of vice investigators, social workers, and parole officers; interviews with psychiatrists and psychologists; and prison case files.” (P. xiv.) Countering that diagnosis, Hartman insists on the beauty of these experiments in trying to live free, arguing that these “young black women in open rebellion” show “utopian longings” and provide “an intimate chronicle of black radicalism;” such radicalism included “free” motherhood, intimate partnerships outside of marriage, and “queer and outlaw passions.” (P. xv.) As the archives reveal, the regulatory apparatus of governmental and quasi-governmental officials labelled and punished these young Black women for their supposed deviance from marital, gender, and sexual norms.

The expansive use of the police power to protect public morals is particularly sobering. For example, under the Tenement House Law, young Black women were surveilled and arrested “as vagrants and prostitutes” simply on a police officer’s testimony. (P. 249.) A prostitution charge could follow a young woman inviting a man into her home for a drink. Given the police invasion of Black homes in 2020, it is chillingly resonant to read of the disrespect a century ago for Black homes as private spaces: in a “jump raid,” plainclothes officers, “having identified a suspicious person and place, knocked at the door of a private residence, and when it opened, they forced their way across the threshold or they followed behind a woman as she entered to her apartment.” (P. 252.) Hartman recounts that Elinora Harris (the future Billie Holiday) and her mother were arrested in a neighborhood sweep. (P. 252.) “Walking while black” had its counterpart in the 1920s, when, as Holiday recalled, women like her mother, employed as maids or office cleaners, “were picked up on the street on their way home from work and charged with prostitution.” (P. 254.)

Hartman compellingly describes the “incredible ferocity” of this “state surveillance and police power” as “the afterlife of slavery.” (P. 256.) The young women targeted by this regulatory power perceived that such law was “designed to keep them in place,” even as they “refused to live in its clauses and parentheses.” (P. 256.) The consequences of this regulatory power fell most harshly on Black female minors: an adult woman convicted of prostitution might be sentenced to 60 days at the workhouse, but, under the Wayward Minors Act, “a girl convicted as a wayward minor might receive an indeterminate sentence of three years” at a reformatory. (P. 223.)

Racism and sexism intertwined in the application of such status offense laws: between 1882-1925, “only young women were adjudged wayward under” wayward minor laws, and Black girls were “more likely to be punished and . . . punished more harshly” than white girls. Thus, “state racism exacerbated the reach” of such laws, “marking blackness as disorderly and criminal.” (P. 225.) Hartman’s empathetic reconstruction of the desires and interrupted lives of these “wayward” girls — subject to the “civil death” of confinement in racially segregated and brutal reformatories (P. 264)— offers a valuable counterpoint to portrayals of Progressive-era efforts around juvenile justice, with the (unrealized) ideal of a prototypical wayward (white) boy in need of the counsel of a kindly judge.

As a family law scholar, I found sobering how Progressive-era social reformers in Northern cities viewed maintaining segregation and preventing “interracial intimacy or even proximity” as necessary for public health and morals: “the Girl problem and the Negro problem reared their heads” together, finding “a common target in the sexual freedom of young women.” (P. 20.) Further, vice commissions diagnosed interracial association as “disorderly” even when the purpose was “to undo the color line.” (P. 249.)

The book is a tour de force in its richly and vividly imagined narratives, which allow these young Black women hitherto “credited with nothing” and “deemed unfit for history” to emerge with agency and vision—as “radical thinkers who tirelessly imagined other ways to live and never failed to consider how the world might be otherwise.” (P. xv.) Part of that quest, Hartman persuasively shows, is the desire for aesthetic beauty and pleasure. As Professor Eddie Bruce-Jones observes, in showing “why beauty is a vital component of the narrative,” Hartman has also “created a beautiful experiment of her own.”

“The beauty of the chorus” is a phrase Hartman uses skillfully to portray the goals of women like Mabel Hampton, who left domestic service – the expected employment for young Black women – to pursue romance and adventure through joining a chorus line and dancing in cabarets, where she could shake off (however briefly) the “assault of racism.” (P. 307.) Mabel’s intimate experiments in loving other women also dared to cross the color line. Hartman places Mabel amidst a “glamorous world” of other Black women, such as Gladys Bentley, Jackie Mabley, and Ethel Waters, whose artistic lives defied gender and sexuality conventions. Mabel’s chorus line did not lead to the concert career she sought; instead, in middle age, Mabel faced the fate she evaded as a teen: entering the “Bronx slave market” for day laborers, “settled on a crate among the group of domestics as they waited for housewives from Yonkers and Westchester.” (P. 343.)

Hartman closes by envisioning a chorus of the many young women whose voices need to be heard, whose stories are terrible and beautiful, and who “transform[] the terms of the possible.” (P. 349.) The Greek etymology of “chorus,” Hartman observes, is to “dance within an enclosure.” This image of “acts of collaboration and improvisation that unfold within the space of enclosure” well conveys “the long history of struggle, the ceaseless practice of black radicalism and refusal,” and “the tumult and upheaval of open rebellion.” The chorus, with its many songs asking how to live free, “propels transformation” and is “an incubator of possibility.” This chorus so vividly presented by Hartman offers a rich resource for legal scholars seeking to expand the canon to include missing and marginalized voices in a way attentive to the intersection of race and gender discrimination. At a time when legal scholars and teachers are seeking to make antiracism and reckoning with systemic racism more central to their pedagogy and writing, Hartman’s intricate reconstruction of this unrelenting apparatus and its harsh and unjust toll on the lives of young Black women is a powerful and sobering text.

Cite as: Linda C. McClain, A Radical, Subaltern Chorus: Saidiya Hartman’s Album of Rebellious Young Black Women, JOTWELL (February 26, 2021) (reviewing Saidiya Hartman, Wayward Lives, Beautiful Experiments: Intimate Histories of Social Upheaval (2019)), https://family.jotwell.com/a-radical-subaltern-chorus-saidiya-hartmans-album-of-rebellious-young-black-women/.

Bargaining in the Shadow of (Confusing) Law: The Case of Surrogacy Contracts

Rachel Rebouché, Contracting Pregnancy, 105 Iowa L. Rev. 1591 (2020).

The literature on surrogacy regulation has recently taken a turn towards a more pragmatic understanding of the field. Scholars have attempted to describe surrogacy regulation as it already exists and analyze the different interests involved, under conditions of legal fragmentation and uncertainty.1 Rachel Rebouché’s Contracting Pregnancy is an important contribution in this vein.

The article contributes several advances to our knowledge of surrogacy contracts in action. First, Rebouché analyzes statutory developments alongside standard terms included in surrogacy contracts. Doing so allows her to notice a tension between the law on the books and the law in action. The newest statutes attempt to balance the interests of intended parents and surrogates, recognizing parentage for the former, while safeguarding the surrogate’s autonomy interests, by emphasizing that decisions about termination ultimately reside with the surrogate. Lawyers involved in the drafting process, however, regularly include language “that contradicts state efforts to level the playing field for parties.” (P. 1596.) Rebouché finds this recurrent tension between state statutes and contractual language in the areas of pre-pregnancy genetic testing, prenatal screening and testing, lifestyle decisions during pregnancy, and abortion. In other words, the contracts that lawyers draft regularly try to vest intended parents with decision-making power over these areas, against the backdrop of a statutory (and constitutional) framework that vests that authority on the surrogate.

The second contribution of the article is related to Rebouché’s attempt to understand how and why this gap occurs. Why do lawyers insist on including clauses that are likely unenforceable, either through specific performance or through damages? Rebouché pushes us to understand this practice in the context of the literature on relational contracts, in which the negotiation and inclusion of certain clauses in a contract have value as a vehicle for obtaining valuable information about the other party and building trust between parties who will need to collaborate over a period of time if the arrangement is to succeed. (P. 1631.) Noticing that surrogacy contracts may share characteristics with other types of contracts that create long-term relations and studying them under a regular contracts lens is a move against family law exceptionalism that is likely to contribute to more clarity about what this legal practice actually looks like on the ground.

A third contribution of the article is a detailed account of the role that healthcare professionals, lawyers, and surrogacy agents play in managing conflict between parties in a surrogacy contract. Rebouché’s analysis brings a legal sociological approach that is attentive to the multiplicity of incentives and motivations that may be present beyond profit, such as reputational integrity and ethics, at different stages of the process. One of the more interesting observations is that the balance of power between intended parents and surrogates shifts at different points in the process, with the surrogate gaining more of it as a pregnancy takes hold. The fertility agencies and the lawyers often associated with the agencies mediate to balance out these shifts in power, in order to maximize the chances that the arrangement will not devolve into a conflict. This often means keeping the intended parents’ micromanagement of the surrogate under control and safeguarding the surrogate’s autonomy, while maximizing the chances that the surrogate will actually collaborate with obligations she signed up for, even if unenforceable, such as waiving her medical confidentiality in order to allow access to pregnancy information for the intended parents.

Despite the observation that the vast majority of surrogacy arrangements don’t seem to devolve into a court battle, Rebouché remains troubled by the role of professional intermediaries, calling for more transparency about the process these professionals use to balance the shifting power dynamics in the relationship. In this vein, her suggestion that perhaps structuring fertility agencies as non-profits with a right to receive compensation for their services is an interesting one that calls for more examination, perhaps in future work.

Rebouché also cautions about the pitfalls of genetic tests in the context of surrogacy. She focuses on non-invasive prenatal testing (or NIPT), which currently detects big genetic abnormalities, such as a missing or an extra gene, through a blood test in the first trimester. The test is likely to be further developed in the future to reveal detailed genetic information, creating possibilities of termination on the basis of preferred traits rather than seriously debilitating illnesses or conditions. Rebouché suggests that the bioethical concerns on the test might be even more troubling in the context of surrogacy. She notes: “[C]oncerns about the use of prenatal genetic testing when controlled or heavily influenced by intended parents might be exacerbated. An intended parent is not pregnant and does not make testing decisions as a pregnant person might, perhaps feeling distance between themselves and the pregnancy without the physical experience of gestation.” (P. 1619.)

Concerns about frivolous demands for testing, however, could be less, not more, acute in cases of surrogacy, especially if protracted infertility is the background. Even when the background is single people or gay couples attempting to become parents with a genetic link, the financial and emotional cost of the process and the very genetic essentialism that Rebouché cautions against could result in significant compunctions about frivolous demands on the surrogate’s bodily autonomy and perhaps more acceptance of a less than “perfect” genetic combination. After all, it may be easier to imagine there will be a next pregnancy at all if what it takes to get to a pregnancy is sex-rather than hiring a soccer team of professionals for the cost of a small house in a rural area. While it is uncertain which way this will actually cut, without more evidence, the assumption about surrogacy exacerbating these concerns may need more finetuning. Anecdotal evidence suggests that NIPT in the surrogacy process may lead to less, not more, pregnancy testing, and is especially useful in avoiding more invasive procedures such as amniocentesis, hence less pressure on the surrogate’s bodily autonomy.

Overall, the article opens up a rich vein of inquiry into surrogacy contracts that is bound to prove fruitful. One possible future theoretical investigation would be further formalizing the bargaining dynamics involved in negotiating, executing, and enforcing a surrogacy contract, by examining further, the actual fallback positions of each party involved. Another fruitful direction would be digging deeper into the analogies between surrogacy and other kinds of contracts, as well as other mechanisms for perhaps evening out the parties’ bargaining power borrowed from even further afield. Labor law anyone?

  1. See, e.g., Courtney G. Joslin, (Not) Just Surrogacy, __ Cal. L. Rev. __ (forthcoming 2021), available at SRRN and previously reviewed on Jotwell by Douglas NeJaime.
Cite as: Philomila Tsoukala, Bargaining in the Shadow of (Confusing) Law: The Case of Surrogacy Contracts, JOTWELL (January 26, 2021) (reviewing Rachel Rebouché, Contracting Pregnancy, 105 Iowa L. Rev. 1591 (2020)), https://family.jotwell.com/bargaining-in-the-shadow-of-confusing-law-the-case-of-surrogacy-contracts/.

Borders as Burdens

B. Jessie Hill, The Geography of Abortion Rights, _ Geo. L.J. _ (forthcoming 2021), available at SSRN.

In The Geography of Abortion Rights, Professor B. Jessie Hill provides a novel, timely mapping of the “geographic dimension of abortion restrictions.” (P. 4.) Some restrictions rely on borders to serve as actual barriers, such as laws that attempt to restrict adults from transporting young people across state lines for abortion services. The effects of other laws, which force clinics to close, fix the borders of “abortion deserts” around which patients travel hundreds of miles to reach the nearest provider. Still other laws, such as medically-unnecessary ultrasounds, trespass bodily borders by requiring “visual and narrative mapping of physical spaces within the woman’s body.” (P. 5.)

In all and more of these examples, Hill argues that “regulating place is a way of subtly drawing lines of social exclusion and inclusion and re-inscribing social inequality.” (P. 6.) By this, she suggests that states, under the guise of protecting a patient’s health and safety, use law to demarcate borders that marginalize abortion care. The effects are uneven and regional, and the burdens of inaccessible care fall hardest on people who already find complying with state restrictions costly and difficult.

Hill spends a significant portion of the article analyzing state laws governing abortion facilities and providers that are designed to force clinics to close. As Hill explains, standalone clinics are the almost-sole providers of abortion in the country. Because of clinics’ isolation from health care generally, legislators easily can target abortion clinics through regulations that providers and clinics cannot and (in terms of patients’ health and safety) need not meet.

Mandating that providers obtain hospital admitting privileges, a restriction that has been at the center of two Supreme Court decisions, provides an example. Hill demonstrates that states typically defend regulation as neutral and apolitical; these laws do not ban abortion outright. Yet abortion rarely entails surgical intervention or necessitates a hospital bed, making privileges difficult if not impossible for most abortion providers to acquire.

As Hill highlights, the Supreme Court struck down Texas’s and Louisiana’s privileges requirements by concentrating on the lived consequences of law, particularly for rural and low income patients. The Court held that when clinics close, patients will have longer drives, more expense if pregnancy progresses, more logistical hurdles to overcome—like arranging childcare, time of work, transportation. A plurality of the Court raised similar concerns in the recent case, June Medical Services v. Russo. Even though five justices could not agree on the proper application of the undue burden test, both the judgment of the Court and Chief Justice Roberts’s concurrence concluded that a law that would shutter all but one clinic in Louisiana was an undue burden on the right to abortion.

Of course, courts have not uniformly struck down restrictions on providers and clinics. As Hill writes, “the line of causality [between the existence of onerous facility regulations and reduced abortion access] is not always obvious.” (P. 27.) One need only look to the dissent penned by Justice Alito in Whole Woman’s Health v. Hellerstedt, which argued that clinic closures are not the fault of a privileges requirement; instead, Texas’s clinic closures are tied to provider shortages and decreasing rates of abortion.

Hill responds to the problem of causality by reimagining the application of constitutional doctrines, such as the right to travel or state action. For example, laws forcing women to leave the state to exercise a constitutional right contravene, as Hill proposes, a right not to travel. The result, were courts to embrace such an approach, would be a constitutional guarantee for a minimum level of abortion access within state borders. But the willingness of courts to recognize such rights is also contingent on location: on the federal level, abortion rights depend on the district in which one files and the circuit that hears an appeal. And, as Hill notes, in a country where Roe is overturned and numerous states outlaw abortion, place becomes all the more important. In the near future, legal abortion rights could depend entirely on the states: half will permit abortion and just under half, concentrated in the south and Midwest, will probably ban abortion.

Constitutional challenges to abortion restrictions may go only so far in addressing the unequal distribution of abortion care because courts may be unable or unwilling to make geography matter less. In this regard, Hill might explore other avenues of delivering abortion services together with or beyond constitutional litigation.

The remote delivery of medication abortion, though far from a perfect solution, can help erase the stark lines that abortion restrictions draw and that future bans might impose. A physician licensed in a state (even if not physically present in that state) can counsel (online or over the telephone), prescribe, and, during the pandemic, mail pills to induce a medication abortion. Federal and state laws, however, have not made the expansion of remote care easy. Nineteen states, for example, require a physician to be present upon delivery of medication abortion. The FDA, through one of its safety protocols, requires patients to obtain the first drug in a medication abortion (mifepristone) in-person at the practice location of a certified provider. The rule effectively bars teleabortion, which is one reason why a federal district court suspended it for the duration of the COVID-19 national emergency.

A new administration could abandon the FDA requirement number of state legislatures already have expanded teleabortion within and across their borders. The challenge moving forward is building capacity for health care providers to prescribe and to deliver medication abortion over state lines. Place will still matter, but it could matter less with abortion-supportive policies and increased resources to help ensure access to abortion care.

That is to say, while constitutional arguments are important, political and legislative action may more immediately reconfigure the map of abortion access. And that is, ultimately, one of the central aims of Professor Hill’s article—upending borders to protect the right to abortion, an issue all the more important if the Supreme Court overturns Roe.

Cite as: Rachel Rebouché, Borders as Burdens, JOTWELL (November 17, 2020) (reviewing B. Jessie Hill, The Geography of Abortion Rights, _ Geo. L.J. _ (forthcoming 2021), available at SSRN), https://family.jotwell.com/borders-as-burdens/.

Rounding the Square Peg: Matsumura’s Redefining of Status Regulatory Schemes

Kaiponanea T. Matsumura, Breaking Down Status, 89 Wash. U. L. Rev. __ (forthcoming Jan. 2021), available at SSRN.

The COVID-19 pandemic has highlighted the precarity in which millions of people live in the United States. In his forthcoming article, Breaking Down Status, Kaiponanea T. Matsumura shows us how this precarity is intrinsically linked to the law’s inevitable (or perhaps willful) insistence on regulating important social, economic, and personal relationships through a status-based regulatory system. To discuss the obsolescence and ineffectiveness of this scheme and how it should be reformed to one in which status is defined independently from contract and adapted to the current social and legal landscape, Matsumura uses as a case study two statuses that are seldom thought today to be interrelated: worker classification and marital status.

This approach in and of itself is a great contribution to the scholarship of status. By taking this viewpoint, Matsumura is able to survey the typology of status. While dissecting the taxonomy of status, he establishes how the concept has been applied interchangeably to refer to interrelated legal and non-legal phenomena. This ambiguity has obscured the scholarly discussions about status-based regulation by selectively focusing on one of its aspects. As laid out in the article, this selective approach can be seen best in the social normative vis a vis legal effects critiques to Obergefell.

Yet, Matsumura has more in his hat than just a taxonomic study of status to enhance our understanding of its problems in our current regulatory scheme. After expanding on the undertheorized concept of status, Matsumura examines gig workers and non-marriages. By summarizing the transformation of romantic relationships (i.e. the rise on cohabitation and the corresponding decline in marriage) and in the market (i.e. the decline of the employer-employee relationship and the rise of non-long-term employees), the article shows how the regulation of marriage and employment have grown obsolete in light of the current social landscape. The lagging between how statuses are defined and how people have rearranged their relationships make existing legal approaches to statuses obsolete, resulting in an ineffective regulatory scheme. Its ineffectiveness is best epitomized by the remarks of a judge trying to apply employee regulations to Lyft’s gig workers by saying that it was like being “handed a square peg and asked to choose between two round holes.”

The square pegs are the current relationships workers established with their employers and the growing number of non-marital relationships. The round holes are the vestiges of the Blackstonian households. Matsumura explains how the status regulation of workers and non-marriages are, even after their many changes, still embedded in the regulation of master-servant and husband-wife relationships, respectively. This uncovering not only challenges our notions that the market and marriage have grown in opposite directions notwithstanding their common origin in the pater familias, but it also adds to the debunking of Henry James Sumner Maine’s long-held evolutionary wisdom that the law evolves from status to contract.

The article shows that any changes we have experienced in the regulation of status towards a contractual scheme by adding more customization power to the parties is always halted by the need to balance parties’ autonomy against lawmakers’ interests in regulating efficiently and addressing vulnerability. This inescapable reality of the conflicting interests between moving to contract to grant greater control to individuals over the legal consequences of their relationships and the lawmakers’ wishes to advance socio-political interests such as privatizing welfare, protecting parties with less bargaining power, and dictating the social meaning of the relationships themselves forces contracts to fold back into status.

Consequently, Matsumura questions the desirability of moving to a full contractual scheme and defends the theory that statuses, albeit inevitable, can be effective and powerful regulatory tools. Here, perhaps, lies the greatest contribution of the article. Matsumura invites us to look at the regulation through status independently from contract and proffers a multi-layer design to think of its reform.

He identifies three axes that in the status literature have been discussed and critiqued in isolation. The first axis (aggregation/disaggregation) addresses whether the bundle of legal consequences associated with a status are kept together or disentangled. The second axis (binarism/pluralism) focuses on the number of categories under which an individual could be classified. The final axis (boundary policing) deals with the entering and exiting of the status. In other words, its concerns are when and how to determine whether an individual falls within the status and how people transition in and out of their statuses.

With this taxonomy, Matsumura attempts to identify design questions to guide us in our reform efforts of romantic and work relationships (and beyond) which would not focus on a selective or single aspect of status. He invites us with these categories to find combinations to round the square peg or square the round holes so that we can disrupt our regulatory scheme.

This invitation resonated with me in multiple levels. First, as a proposer of abolishing marriage and using other proxies to regulate the granting of privileges and rights to families, including non-traditional families such as cohabiting couples, polyamorous units, and non-sexual families, I questioned myself about whether I have been engaging in selective critiques of statuses or whether I have been really re-thinking marital status outside the Blackstonian household in a comprehensive way. It also invited me to rethink in more detail the third relationship of the Blackstonian household, that of the father and the children, and how we can disrupt its status regulation.

I am sure reading Matsumura’s article will invite similar and more profound reflections from family law scholars and authors in other areas. But most importantly, it will be a great departing point for rethinking how we regulate essential social, economic, and personal relationships to construct a more egalitarian world.


Editor’s Notes: For another review of this article, also published today, see Brian Bix, A Status Breakdown, JOTWELL (November 3, 2020).

Also, please note that Jotwell’s Contributing Editors make their own selections as to what to review; review topics are not assigned by the Section Editors.

Cite as: Aníbal Rosario-Lebrón, Rounding the Square Peg: Matsumura’s Redefining of Status Regulatory Schemes, JOTWELL (November 3, 2020) (reviewing Kaiponanea T. Matsumura, Breaking Down Status, 89 Wash. U. L. Rev. __ (forthcoming Jan. 2021), available at SSRN), https://family.jotwell.com/rounding-the-square-peg-matsumuras-redefining-of-status-regulatory-schemes/.

A Status Breakdown

Kaiponanea T. Matsumura, Breaking Down Status, __ Wash. U. L.R. __ (forthcoming 2021), available at SSRN.

One of the hottest topics in family scholarship today is the proper legal treatment of unmarried cohabiting couples. Of course, it is hardly a new topic: it has been a center of controversy at least since the Marvin v. Marvin decision almost 45 years ago. On one side, it has been argued that giving unmarried couples marriage-like rights (equitable division of property at the end of the relationship or a claim for something like alimony) would undermine the public policy favoring marriage, while also not respecting the autonomy of those who declined to marry precisely to avoid such obligations. On the other side, refusing any marriage-like rights to long-term unmarried cohabitants would arguably fail to protect vulnerable parties (in particular, those partners, usually women, who have given up careers) and create an unjust result between the parties (where often one party leaves a long-term cohabitation with much more property than the other, often after having promised that household earnings would be shared).

During the decades since Marvin v. Marvin, the number of couples cohabiting outside of marriage has increased significantly; the Census in 2018 reported that more people in the 18-24 year group were living with a partner than were living with a spouse. However, outside a handful of states (e.g., Washington State, with its status of “Committed Intimate Relationship”), and excluding the small number of couples who enter detailed written agreements, unmarried cohabitants are still treated as legal strangers. Indeed, as Kaiponanea Matsumura points out in “Breaking Down Status” – and others have pointed out as well1 – cohabitants are treated by the law worse than legal strangers, as courts will regularly refuse enforcement of informal agreements between cohabitants (exchanges are presumed to be made altruistically) that would be more likely to be enforced between strangers. (P. 58.)

In “Breaking Down Status,” Matsumura approaches the problem of how to treat long-term unmarried cohabitants indirectly, by offering an intriguing and detailed comparison between domestic relations status (married or unmarried cohabitants) and worker status (full-time employee or independent contractor). For both employment and intimate relationships, the author shows how the legal status options developed long ago, in a far different time, have come to fit current practices and expectations poorly. On the employment side, the proper characterization of gig workers (e.g., Uber and Lyft drivers) has made salient how the options of “employee” and “independent contractor” both seem problematic. Each status comes with its own bundle of benefits and disadvantages, and each falls short of the experiences or needs of most gig workers. For example, gig workers do not seem to be independent contractors in the core sense of that label, in that they often work for only one company, and their terms of employment are generally set by that company. On the other hand, gig workers often have a flexibility regarding the number of hours worked that traditional employees do not have.

In the area of domestic relations, there are many unmarried couples who hold themselves out as married, and generally follow the norms and expectations of married couples in their community. However, there are also many unmarried cohabitants whose behavior and self-perception fill the whole spectrum from “basically married” to mere “friends with benefits.” And while one might picture a partner refusing to marry as some rich man who selfishly wants to keep all the property to himself, there is also, as a number of observers have reported, the reality of single, working class mothers “reluctant to commit to a marriage-like relationship because of concerns about a partner’s income stability, expenses, and debts.”2

As Matsumura points out, status relationships tend to encapsulate a complex of autonomy, dependency, vulnerability, and oppression. An obvious reformist reaction is to argue that each situation should be judged individually, taking into account all the circumstances. This is the impulse that creates equitable exceptions to legal rules, and one also finds it in Family Law, in doctrines like equitable (de facto) parental status and equitable adoption. However, as is well known, what is gained by individual consideration comes with costs – uncertainty, unpredictability, and too much discretion to judges (keeping in mind that many judges do not share “our values” – regardless of how one fills out the content of “our values”). It is not surprising that these equitable doctrines tend to become ever more rule-like over time: to create more predictable outcomes regarding when (e.g.) equitable parental status will be granted and when it will be refused. And, as Matsumura argues, the intermediate solution of having a large variety of statuses also has difficulties: like the “numerus clausus” idea in property law (not having too many categories of property),3  having too many family categories, or allowing parties to create an infinite number of new status structures through private agreement, which can quickly lead to confusion and inefficiency.

The article draws broad lessons: that in the government’s treatment of its citizens, it is inevitable that people be divided into categories, and it is convenient if those categories – “status” categories – often contain bundles of rights and obligations. Matsumura’s take-away is clear: “Status is inevitable.” (P. 55.)

However, the article does not prescribe resigned acceptance of misfit statuses. Matsumura believes that statuses can be reformed, though he warns that the process is rarely straightforward. What solves one problem may create another; it is hard to serve well autonomy, efficiency, and dependency (or even any one of them alone – e.g., responding to vulnerability can also have the unintended effect of encouraging vulnerability). Finding the right legal response to unmarried cohabitation (and gig employees) will require creativity and hard work.


Editor’s Notes: For another review of this article, also published today, see Aníbal Rosario-Lebrón, Rounding the Square Peg: Matsumura’s Redefining of Status Regulatory Schemes, JOTWELL (November 3, 2020).

Also, please note that Jotwell’s Contributing Editors make their own selections as to what to review; review topics are not assigned by the Section Editors.

  1. E.g., Courtney G. Joslin, Autonomy in the Family, 66 UCLA L. Rev. 912 (2019).
  2. Naomi Cahn & June Carbone, Blackstonian Marriage, Gender, and Cohabitation, 51 Ariz. St. L.J. 1247, 1273 (2019).
  3. Thomas W. Merrill & Henry E. Smith, Optimal Standardization in the Law of Property: The Numerus Clausus Principle, 110 YALE L.J. 1 (2000).
Cite as: Brian Bix, A Status Breakdown, JOTWELL (November 3, 2020) (reviewing Kaiponanea T. Matsumura, Breaking Down Status, __ Wash. U. L.R. __ (forthcoming 2021), available at SSRN), https://family.jotwell.com/a-status-breakdown/.

Termination of Parental Rights of Mothers with Disabilities: The Role of the Americans with Disabilities Act

Robyn M. Powell, Susan L. Parish, Monika Mitra, Michael Waterstone & Stephen Fournier, The Americans with Disabilities Act and Termination of Parental Rights Cases: An Examination of Appellate Decisions involving Disabled Mothers, __ Yale L. & Pol'y Rev. __ (forthcoming), available on SSRN.

The right to parent is recognized by the Supreme Court as a fundamental right, but this right remains elusive for many groups, including parents with disabilities. The Americans with Disabilities Act (“ADA”), heralded as landmark legislation for people with disabilities, turned thirty this year. However, parents with disabilities are still not adequately protected by the ADA, especially when they are involved with the child welfare system. In a forthcoming article in the Yale Law & Policy Review, Robyn M. Powell, Susan L. Parish, Monika Mitra, Michael Waterstone, and Stephen Fournier use empirical data to demonstrate how the ADA is routinely ignored in parental termination decisions in the child welfare system and suggest ways to ensure that the parenting rights of people with disabilities are protected. The article analyzes results of an empirical study conducted by Robyn M. Powell as a part of her doctoral dissertation. It contextualizes the results of her empirical work with a rich discussion of disability law and policy. I found it striking how the authors demonstrate with data that parents with disabilities are denied a key tenet of reproductive justice, the right to parent with dignity.

The article describes how the legislative history of the ADA indicates that the ADA was designed to protect parents with disabilities, especially in child welfare proceedings. Title II of the ADA requires child welfare agencies and courts to abide by a host of requirements including: providing people with disabilities an equal opportunity to participate in services, programs, and activities; administering services, programs, and activities in the most integrated setting appropriate to the needs of people with disabilities; and not applying eligibility criteria that tend to screen out people with disabilities. The article notes that most importantly, the ADA requires child welfare agencies and courts to treat disabled people on a case-by-case basis, consistent with facts and objectives, and not based on stereotypes and generalizations about people with disabilities.

The article begins with a discussion of the history of eugenics in the United States that prevented people with disabilities from having and raising children. The authors examine the 1927 Buck v. Bell Supreme Court decision, in which Justice Holmes infamously noted that “three generations of imbeciles are enough.” After Buck v. Bell provided the imprimatur of authority to state sterilization laws, actual use of sterilization statutes skyrocketed. For example seventeen states enacted or revised their sterilization statutes in the four years following the decision. The article describes how Buck v. Bell thus laid the foundation for over 65,000 forced sterilizations authorized by state law. The article also details how laws restricting marriage by people with disabilities prevented and continue to prevent people with certain disabilities from marrying and subsequently raising a family. Despite the obstacles people with disabilities have faced in terms of parenting, the National Council on Disability notes that at least 6.2 percent of American parents who have children under age 18 have at least one reported disability, with even higher percentages for American Indian/Alaska Native parents (13.9%) and African American parents (8.8%).

The article next describes the empirical study of 2,064 appellate termination of parental rights decisions that involved mothers with disabilities decided between 2006 and 2016. 93% of the cases studied resulted in the termination of parental rights. Future work comparing this statistic with termination of parental rights cases involving mothers who did not have disabilities would be helpful to put this number into context. The study also found that cases involving mothers with psychiatric disabilities or multiple disabilities were significantly more likely to end in the termination of parental rights than those with mothers with physical or sensory disabilities. Only six percent of the cases raised the ADA and only two percent actually found that the ADA applied. The article describes In re Hicks/Brown, a unanimous 2017 Michigan Supreme Court decision that reversed a termination of parental rights decision due to ADA violations in a case involving a mother with an intellectual disability, holding that “termination of parental rights without reasonable efforts is improper and efforts cannot be reasonable absent reasonable modifications.” (P. 15.)

By discussing the first study to conduct quantitative analyses to identify factors that predict whether the ADA is raised or applied in these cases, the authors make a significant contribution to the literature. I found the legal and policy ramifications of the study, and the normative suggestions made by the authors, to be compelling. The authors first posit that the study results may reflect a need for education and training of judges and attorneys about the ADA and confirm that the ADA is not being effectively used during termination of parental rights proceedings with parents with disabilities. The authors note that majority of mothers in this study had incomes below 200% of the federal poverty level and likely had court-appointed attorneys to represent them. The authors suggest practical strategies for ensuring that such attorneys receive ADA training and support from disability rights attorneys. They also suggest the need for better oversight and enforcement of ADA violations in the child welfare system by the Department of Justice and the Department of Health and Human Services. Finally, the authors suggest that community-based services and supports are essential reasonable modifications required by the ADA that should be provided to parents with disabilities as soon as they are involved with the child welfare system.

Although the authors did examine income and substance abuse histories as variables in their work, some sociodemographic data, such as the race of the parents, is often absent in appellate court decisions–so it could not be analyzed in this empirical work. The authors also have another forthcoming piece (which will be published in the Missouri Law Review) analyzing different variables in the same empirical study. I look forward to future work by these authors that may illuminate how race intersects with disability and poverty in child welfare decisions. Anyone interested in the “staggering inequities” people with disabilities and their families experience within the child welfare system should read this excellent piece.

Cite as: Seema Mohapatra, Termination of Parental Rights of Mothers with Disabilities: The Role of the Americans with Disabilities Act, JOTWELL (September 18, 2020) (reviewing Robyn M. Powell, Susan L. Parish, Monika Mitra, Michael Waterstone & Stephen Fournier, The Americans with Disabilities Act and Termination of Parental Rights Cases: An Examination of Appellate Decisions involving Disabled Mothers, __ Yale L. & Pol'y Rev. __ (forthcoming), available on SSRN), https://family.jotwell.com/termination-of-parental-rights-of-mothers-with-disabilities-the-role-of-the-americans-with-disabilities-act/.

When Abortion is Parenting

Greer Donley, Parental Autonomy Over Prenatal End-of-Life Decisions, __ Minn. L. Rev. __ (forthcoming 2020), available at SSRN.

In early 2019, controversy erupted when Virginia’s state legislature considered a bill that would loosen restrictions on abortion, including what are colloquially known as late-term abortions performed in the second and third trimester. Although such abortions are extremely rare – only 1.4 percent of abortions are performed from the twenty-first week of pregnancy and beyond, according to Planned Parenthood – people opposed to abortion used the discussion of late-term abortions to accuse the bill’s supporters of promoting infanticide. If it would be morally repugnant to, in President Trump’s words, “execute” a baby after birth, why is it not similarly repugnant to terminate a pregnancy past the point that most pregnancies are considered viable?

In her upcoming article Parental Autonomy over Prenatal End-of-Life Decisions, forthcoming in the Minnesota Law Review, Greer Donley turns this rhetorical question on its head. In many circumstances, parents have the right to decline medical care on behalf of their children. Faced with a catastrophic medical diagnosis and a plan of invasive, painful treatment with very limited chance of success, parents have the authority to make the unfathomably difficult decision to provide only palliative care and minimize their child’s suffering. Why, Donley asks, would we deny parents terminating a wanted pregnancy in the face of a devastating diagnosis the same authority?

This reframing of the late-term abortion debate is a stunningly effective and provocative move. Abortions are often condemned as cruel or selfish decisions, and late-term abortions are frequently described as particularly callous. Donley counters this description by reclaiming the label “parent” even for people terminating pregnancies and casting the decision as one motivated by love for the child. Her analysis is movingly bolstered by her use of an essay by Margot Finn, who had an abortion at 29 weeks after her baby was diagnosed with lissencephaly. As Finn described it,

The only thing that could have been worse than [my baby] dying would have been to continue knitting her small body together with my body, to keep growing bigger and bigger with her and go through a far more dangerous full-term delivery or perhaps even a C-section, should her brain swell with fluid, and then watch her be intubated and fitted with a feeding tube. The only thing worse would have been to feel personally responsible for every bit of her suffering thereafter, wishing I could give her peace and being unable to do it.

Donley argues that Finn’s decision to terminate her pregnancy to spare her child pain and an unavoidable early death is simply not captured by traditional descriptions of abortion as a privacy right.. The reason behind terminating the pregnancy is not to avoid becoming a parent too early, or to control the drastic life changes that result from pregnancy and parenthood. Instead, Donley treats such decisions as much closer to a parent declining life support or other heroic medical interventions – and to the extent that the expectant parent’s situation is meaningfully different, it is different in a way that increases the expectant parent’s decisionmaking rights.

Obviously, these decisionmaking rights are not unlimited, and Donley outlines principles to guide where her reframing would apply. A number of genetic anomalies can be diagnosed during pregnancy.. Only anomalies that result in certain death in childhood or anomalies that carry a substantial possibility of death in childhood and severe morbidity in all cases (would justify terminating the pregnancy as an exercise of parental authority, as opposed to anomalies that cause disability). This tracks how the law treats parents who choose to decline end-of-life medical care for their children: very roughly, the state may intervene if the medical treatment is minimally invasive and has a high chance of success in treating a serious condition, but has much less authority to disturb parental choices if a treatment would be disruptive, painful, and have little probability of improving the child’s prognosis.

This reframing has some potential risks in terms of how it changes the debate around abortion, which Donley rightly notes. To the extent that terminating because of a devastating medical diagnosis is a “good,” or at least an “acceptable,” reason for an abortion, it could make other non-medical reasons for terminating a pregnancy look worse. Further, if all people seeking an abortion are reframed as parents, the social judgment of such parenting decisions (and particularly mothering decisions) might become even more harsh. An even more charged conflict might result if the two parents disagree about whether to terminate the pregnancy. In the context of typical end-of-life decisionmaking for a child, both parents have equal authority, so disagreements between parents present a difficult conflict that courts might be called upon to resolve using their own assessment of the best interest of the child. In the case of prenatal end-of-life decisionmaking, Donley concludes that bodily autonomy must tip the scale in favor of the pregnant person, a tiebreaker that does not exist in the context of parents disagreeing about medical care for their child.

Finally, Donley acknowledges that there is a much deeper and broader discussion of the rights and lives of people with disabilities that her reframing touches upon. She argues that there is no objectively correct answer about where to draw a line around “when a disability is so severe that life is not worth living.” She suggests that the reproductive rights and disability rights communities can work in tandem by pushing medical, financial, and other support for parents who have children with disabilities, so that such costs do not play a role in an individual person’s decision of whether to terminate a pregnancy. That said, such an overlap in goals sidesteps the deeper question of how society recognizes the value of disabled lives. The risk of reframing abortion decisions made in dramatic circumstances as more sympathetic choices is that choices made outside of those dramatic circumstances look superficial, casual, or less justified.

To my mind, however, Donley’s argument is both a smart connection between fields of law traditionally treated as distinct and a deft rhetorical approach. Abortion is about privacy, but it is also about a lot of things that courts have not always acknowledged: gender equality, bodily integrity, and broader parenting decisions. Some people who have abortions are deciding whether to become parents, but more are making a choice about how to parent: A majority of people terminating a pregnancy have already had at least one child, and often seek an abortion because they cannot financially afford to support their family if another child is added to it. Many decisions to terminate even in the first trimester of pregnancy are in some ways a parenting decision, although they are rarely described as such. Donley takes late-term abortions and, through her label of prenatal end-of-life decision, explicitly names them as a parenting choice.

Parents seeking late-term abortions are criticized by people like President Trump as deciding to execute a baby. Donley flips that description on its head and defends what many see as the most extreme example of abortion’s harms as an incomprehensibly painful, compassionate, loving choice. Her article not only shows respect and empathy on a human level, but also offers a compelling legal shift that would grant such decisions the deference they deserve.

Cite as: Dara E. Purvis, When Abortion is Parenting, JOTWELL (July 30, 2020) (reviewing Greer Donley, Parental Autonomy Over Prenatal End-of-Life Decisions, __ Minn. L. Rev. __ (forthcoming 2020), available at SSRN), https://family.jotwell.com/when-abortion-is-parenting/.

Reproductive Exceptionalisms

Over the past four decades, people have increasingly turned to reproductive technologies to form their families. As technologies such as egg freezing, in-vitro fertilization, and pre-implantation genetic diagnosis have developed and improved, processes that were once left to chance are now subject to human control. As a result, what were once hopes—for instance, deferring childbearing until some point in the future, or having a male or female child—have transformed into expectations on the part of technology users.

Yet expectations are sometimes dashed because of avoidable human error, like mislabeling a sperm sample or failing to check liquid nitrogen levels in high-capacity freezers. As Dov Fox shows in his comprehensive new book, Birth Rights and Wrongs, courts have largely been unsympathetic to lawsuits stemming from these types of errors. Fox convincingly argues that courts should redress thwarted expectations about reproduction through the tort of reproductive negligence.

The book, an expanded and refined version of Fox’s already-influential Columbia Law Review essay, Reproductive Negligence, makes a compelling case for the recognition of a new family of torts centered around expectations about reproduction. Fox notes that some reproductive wrongs, like freezer failures, deprive people of the pregnancy or parenthood that they want. (Pp. 99-100.) Other wrongs result in the imposition of pregnancy or parenthood, for instance, because of an improperly performed sterilization. (Pp. 113-14.) Still other wrongs prevent people from having a particular type of child, like one with a desired trait or without a heritable disease. (P. 127-28.) Much like privacy torts, which have been broken into discrete claims, Fox argues that reproductive negligence takes the form of three claims: procreation deprived; procreation imposed; and procreation confounded. (Pp. 75-76). And just as the recognition of privacy torts expanded the notion of judicial redress beyond physical injury to “intangible harms to emotional tranquility or reputation,” (P. 55), so too should tort law expand to recognize interference with reproductive expectations.

But traditional conceptions of privacy torts are compatible with the bifurcated logic of the separate spheres, the assumption that the market structures economic life and the family structures affective life.1 They declare that certain facts and details, often associated with domestic life, should be kept away from the general public or should not be subject to financial exploitation. (Pp. 57-58.) Thus, they maintain the line between private and public, and reinforce the distinction between the home and the market. Reproductive negligence, by contrast, draws courts into the domestic realm to decide questions like whether the desire for a boy rather than a girl, or a white child instead of a mixed-race one, is legitimate and compensable. Given the well-documented hesitancy of courts to extend contract and tort law into the domestic sphere, it is unsurprising that courts have discounted reproductive injuries as arbitrary or fanciful (Pp. 59-62) and have deemed them impossible to value. (Pp. 141-64.)

Viewed in this light, Fox’s proposal is nothing less than an assault on the law’s exceptionalization of the family.2 Fox makes a compelling case that from a doctrinal perspective, the only thing distinguishing a botched vasectomy from a botched hip replacement, or a freezer failure at a fertility clinic from a similar failure at a wine storage facility, is that the former examples involve the creation or avoidance of familial relationships. And he disassembles common objections, for instance that babies are always blessings (Pp. 114-15), or that parents should love any child unconditionally (P. 132), showing that they do little more than assume that family relationships are somehow different and impervious to mainstream legal doctrines. This is not to say that other grounds to deny recovery for reproductive wrongs do not exist. Recognizing harms based on trait selection, for instance, may give rise to negative externalities such as stigmatizing disability or validating sex stereotypes. These harms may weigh against recovery under certain circumstances. But, at a minimum, Fox challenges the reader to come up with objections that are not the product of exceptionalism or to justify which forms of exceptionalism are valid.

That said, Fox exhibits ambivalence about the prospect of abandoning exceptionalism altogether.  To emphasize the stark inadequacy of the current legal regime, Fox notes that “[f]ew other decisions or undertakings [aside from reproduction] so shape who a man is, how he spends his days, and how he wants to be remembered.” (P. 15.) Perhaps this is true, but sentiments about the specialness of reproductive choices tend to justify differential treatment.  He also recognizes that it’s not just professionals who engage in conduct that may interfere with the other’s reproductive expectations. Intimate partners may lie about or misuse contraception, or conceal heritable traits that the other might have wanted to avoid. (Pp. 77-78.) The acts could result in similar deprivations of reproductive control. Yet Fox would set these acts aside because “[i]ntimate partners don’t owe each other a formal kind of obligation of the kind that medical specialists do to those they serve”: they do not owe each other a “duty of reproductive care.” (P. 79.) But why shouldn’t they? Distinctions such as these effectively redraw, rather than dismantle, the boundary between the spheres that makes Fox’s proposal so necessary in the first place. They take the acts that constitute reproductive negligence outside of the family sphere and place them in the economic sphere rather than questioning the division to begin with. The result is a smaller but equally robust zone in which the law does not enter.

Limiting the cause of action to professionals produces an additional type of impact. Given that the costs of involving medical professionals and other fertility experts in one’s reproductive decisions can easily run in the tens, if not hundreds of thousands of dollars, one’s ability to vindicate reproductive expectations still depends on economic status. Those without the money to hire professionals will be unable to assert cognizable harms. To be clear, limiting the cause of action to professionals with formal obligations may be both doctrinally defensible and pragmatic. Moreover, the inequality it produces is not a fatal argument against recognizing reproductive negligence: one could address it by subsidizing access to reproductive technologies for all. What this particular line drawing reveals, however, is that recognizing the tort could either be a beginning or an end.  It could pave the way for a broader conception of reproductive rights, or it could retrench privilege, which is what the separation of the spheres accomplished in the first place.

  1. See, e.g., Frances E. Olsen, The Family and the Market: A Study of Ideology and Legal Reform, 96 Harv. L. Rev. 1497, 1498 (1983).
  2. See Janet Halley & Kerry Rittich, Critical Directions in Comparative Family Law: Genealogies and Contemporary Studies of Family Law Exceptionalism, 58 Am. J. Comp. L. 753, 754 (2010) (noting as a descriptive matter that families are treated as exceptional in numerous areas of the law, and that this exceptionalism produces a variety of distributional effects).
Cite as: Kaiponanea Matsumura, Reproductive Exceptionalisms, JOTWELL (July 3, 2020) (reviewing Dov Fox, Birth Rights and Wrongs: How Medicine and Technology are Remaking Reproduction and the Law (2019)), https://family.jotwell.com/reproductive-exceptionalisms/.