This Fall in my Family Law class, a student emailed me a Saturday Night Live clip after our discussion of Dobbs v. Jackson Women’s Health Organization. It is a Weekend Update skit, where Kate MacKinnon plays Justice Amy Coney Barrett, who is being interviewed by the anchor, Colin Jost. Throughout the interview, MacKinnon—as Justice Barrett—keeps repeating various iterations of “Do the nine. Just do the nine and pop it.” The “nine” refers to the nine months (or 40 weeks) of gestation; the “pop it” refers to the act of giving birth. The reason the clip is funny, in a tragic sort of way, and the reason my student shared it with me, is because MacKinnon’s breezy directives perfectly capture Dobbs’s complete failure to acknowledge any of the physical facts of pregnancy and birth. Later that semester, during the section of our course that addresses how the law accommodates pregnancy, another student sent me a TV advertisement made by Frida, a company that sells products for new parents. The ad shows a woman postpartum, waking up in the middle of the night to pee. It is intimate and matter-of-fact. Anyone who has given birth, or has been with someone who has given birth, will immediately recognize the hospital-issued mesh underwear, the extra-long cotton pads, the peri bottle filled with lukewarm water. The ad made headlines for being rejected for a spot during the 2020 Oscars ceremony. In an email, the Academy of Motion Picture Arts and Sciences suggested that Frida offer “a kinder, more gentle portrayal of postpartum.” The student sent me the ad to follow up on our class discussion about how the experience of birth, and what immediately follows, is so rarely depicted.
Gestation, pregnancy, and birth, along with the bodies that house these and other life processes, are mostly missing from the laws that regulate them. This is why Kate Clancy’s book, Period: The Real Story of Menstruation, is such vital reading. Put simply, “[b]odies matter.” (P. 182.) They matter in myriad ways that are neither obvious nor straightforward. The principal lesson Clancy’s book offers family law scholars is methodological—she provides us with tools to help identify how alleged facts about bodies and bodily activities are often better understood as judgments that are made as a matter of science or, as the case may be, as a matter of law.
Turn after turn, Clancy critiques seemingly objective scientific hypotheses as the products of specific, and contingent, worldviews. There is the widespread scientific theory that menstruation is merely the detritus the body discards after a failed pregnancy—“[u]seless, rather than useful.” (P. 40.) Clancy questions the primacy of this theory, “interrogating these moments when characteristics most commonly associated with femininity are rendered useless.” (P. 40.) There is also the theory that reproduction is the result of female passivity—“having already produced all the eggs it will ever need before birth, [the ovary] is…just waiting for her prince” (P. 72)—and male activity—with sperm “as the explorer and actor” (P. 73.) But as Clancy repeatedly explains, “[t]he ovaries are anything but passive” and “are always up to something.” (P. 66.) Then there is the theory that “normal” menstruation should occur every 28 days, like clockwork. Yet the very notion “that there can be a normative menstrual cycle goes against the contextual menstrual cycle that we actually see in the wild.” (P. 10.)
Clancy spends much of her book debunking the assumption that what is normal, or average, is somehow neutral. Take Norma, a statue first shown in the American Museum of Natural History in 1945. Norma was designed by Dr. Robert L. Dickinson, a gynecologist, and Abram Belskie, a sculptor. Meant to capture the average American woman, Norma’s measurements were compiled from a variety of sources, including insurance records, college campuses, and the Bureau of Home Economics sizing statistics. (P. 51.) In the end, Norma’s proportions did not correspond to those of any single woman—after holding a contest to find someone with the statue’s dimensions, the winner ended up only approximating Norma’s figure. (P. 52.)
If Norma is not in fact observable “in the wild,” then one way of understanding the work she does is that of presenting a contestable ideal of the American woman in the guise of merely describing her. The proof is in the pudding: the data used to identify Norma’s measurements were “calculated across only a certain set of desirable populations, excluding people of color, queer people, disabled people, and anyone who might dare to occupy multiple of these identities.” (P. 51.) This was no accident—Dr. Dickinson was influenced by the work of eugenicist and anthropologist Ernest Hooton. (Pp. 51-2.) While it might be tempting to dismiss Norma as the product of a bygone era when eugenics and science were one and the same, defining what is normal continues to involve imposing what should be, rather than describing what is. As Clancy notes, the tendency in biological research is still to “averag[e] toward a mean phenomenon,” which leads to results that “may not be describing anything that is actually real.” (P. 77.)
Clancy counters the pull of Norma by identifying how statements that are not meant to reflect or impose any value judgment are doing just that. This is no easy feat, Clancy demonstrates, because what we ignore holds sway not only over the narratives we tell, but also over the data we see and therefore collect. We know, for example, a lot about exercise and the effects that “traditionally male movements” have on the body. (P. 98.) But we “rarely pay attention to the everyday domestic labor that takes up the days of most women of the world.” (P. 98.) The consequence? Missing data, for one. About health, menstruation, and reproduction. But focusing only on men further means that important physical processes are mischaracterized as maladaptive, and bodies that do not fit the norm are pushed into spaces that cannot adequately support them. Indeed: “How much of the hassle of periods is because they are a hassle, and how much is because the structures that underlie family, home, work, and being out in the world make them a hassle?” (P. 20.)
Period, then, is a study on how to interrogate baselines—even those supposedly set by biology, data, and facts. This move is essential for family law scholars to undertake. Consider the following statements, from different Supreme Court opinions: “Fathers and mothers are not similarly situated with regard to the proof of biological parenthood.” Nguyen v. INS, 533 U.S. 53, 63 (2001). “California law, like nature itself, makes no provision for dual fatherhood.” Michael H. v. Gerald D., 491 U.S. 110, 118 (1989). Each statement is presented as an obvious, and observable, fact about the way things are. Each statement, however, uses facts to present a contestable interpretation of how things should be. In Nguyen v. INS, the Supreme Court relies on proof of biology to support the differential treatment of unwed parents based on the underlying assumption that the unwed mother will care for the child while the unwed father will not—a result of the social understanding of motherhood vis-à-vis fatherhood. In Michael H. v. Gerald D., a plurality of the Court refuses to recognize a biological connection as relevant to fatherhood and defines it exclusively with respect to marriage—a legal rather than a natural construct. Taking a page from Clancy’s book allows us to understand how these descriptions mask prescriptions—here, about who should be recognized as a parent.
Clancy ends by relying on fantasy novels to help articulate an alternative world that would allow all kinds of bodies to flourish without being forced to conform to a pre-existing hierarchy. (Pp. 175-79.) The turn to science fiction is borne in part out of necessity, as it offers possibilities for addressing non-normative bodies that go beyond current responses, which oscillate between suppression and erasure. (P. 178.) Despite Clancy’s appeal to fantasy, the book is, ultimately, grounded in the physical and actual—its goal is “to give hope, to act on hope, that what our bodies produce and excrete and transform matters and that to care for our material body is a radical act.” (P. 21.) So what would a family law that acknowledged all bodies—bodies that menstruate, for a time, bodies that get pregnant, bodies that lactate—look like? We can only imagine.
