Apr 9, 2025 Kaiponanea Matsumura
The concept of love is not well developed in the law governing adult intimate partnerships despite anodyne pronouncements such as the claim in Obergefell v. Hodges that marriage “embodies the highest ideals of love, fidelity, devotion, sacrifice, and family” (emphasis added). When courts have attempted to operationalize love, they have often done so in offensive or unsophisticated ways, suggesting, for example, that the spousal duty of support includes the obligation to perform nursing-type care “in loving and devoted ministrations,” or that nonmarital partners who admit to being “lovers” are necessarily engaging in an illicit, sexual transaction. In other words, when it is invoked, love—at least in partnered relationships—usually works against the more economically vulnerable partner, who is often a woman. Scholars have primarily pushed back by developing alternative justifications for their desired outcomes, like securing partners’ economic rights through implied partnership or advocating for more careful consideration of partners’ contributions to the relationship. Few have attempted to counteract these decisions by providing an alternative account of love that is more descriptively accurate, normatively justified, and produces improved legal outcomes, despite the widely held intuition that love matters.
James Toomey’s fascinating article, Love, Liberalism, Substituted Judgment, reveals the benefits of careful thinking about how love can impact a particular area of the law, in this case, decision-making on behalf of incapacitated adults. Toomey considers a puzzle lying at the heart of the substituted judgment standard that the law has adopted for cases of incapacity. When individuals can no longer make decisions for themselves, the law directs the surrogate decision-makers to make the decision that the individuals “would have made for themselves if they could.” (P. 1290.) Yet those individuals may have experienced such a significant degree of irreversible decline or change that they can no longer connect their past to present selves, and are therefore not “themselves” in a meaningful sense. What, then, justifies the legal rule that gives decision-makers the ongoing authority to make decisions on these individuals’ behalf? Love, Toomey argues: “the kind of love between adult friends, family members, or romantic partners” involving “(at a minimum) an intimate knowledge of and deep concern for the personal identity of another.” (P. 1292.) Love is the invisible string that connects decision-makers to incapacitated individuals and ultimately ties those individuals to themselves.
One important contribution of Toomey’s article is to intervene in an ongoing debate about the relationship between past and present selves when it comes to substituted decision-making. Rebecca Dresser has argued that substituted judgment is inappropriate in cases of permanent incapacity because the person for whom decisions are being made in the present is fundamentally different than the person who delegated decision-making in the past. Thus, there is no reason to subject the current self to the decisions the previous self would have made rather than decisions in the best interest of the current self. Others have followed Ronald Dworkin in attempting to justify the substituted judgment standard by conceptualizing the current self as an “abstraction of the person’s whole life.” (P. 1291.) (summarizing Dworkin’s argument). Toomey creatively argues that this debate looks different in the context of temporary incapacity, when decisions are made on behalf of a person who is expected to resume the connection to their previous self (after, for example, a psychotic break). In these cases, the person on whose behalf the decision is made will return and will be able to appreciate the decision made on their behalf.
Within the context of temporary incapacity, Toomey argues that the adoption of the substituted judgment standard is justified by the law’s facilitation of acts of love. Toomey notes that the multiplicity of meanings and uses of the term “love” makes it difficult to pin down, so he seeks to distill and provide what he calls a “thin” account: a set of “essential characteristics of the concept of interpersonal love” on which most moral philosophers agree. (P. 1312.) “First, the object of love is the personal identity of another individual person. Second, love requires an intimate knowledge of the other person’s identity. Finally, love requires a relationship of deep concern towards the identity of the person loved.” (Pp. 1312-13.) When we love someone in this way, we seek to advance their identity in the ways they would choose to do for their own sake, based on our familiarity with their life’s story and goals. Toomey argues that this type of other-regarding love justifies the substituted judgment standard because it is consistent with liberalism, the law’s respect for individuals’ determination of their own best interests.
Having argued that love provides a justification for the substituted judgment standard in cases of temporary incapacity, Toomey offers reasons why it should apply in cases of permanent incapacity as well. First, he argues that because of the limits of our current understanding of the human brain, we lack a firm scientific basis to draw categorical distinctions between cases of temporary and permanent incapacity. Thus, substituted judgment is defensible as a prophylactic rule. Second, the standard respects not only the interests of the person for whom decisions are being made, but the interests of the decision-maker. Loving someone means incorporating their story into one’s own. It is “identity-constituting on both sides of the relationship.” (P. 1324.) (I will return to this point in a moment). Third, although some people believe that a person can irreversibly change through cognitive decline, many others believe in the concept of a soul that persists through such changes and even death. A substituted judgment standard grounded in love is consistent with these beliefs, and acknowledging these beliefs is consistent with the law’s embrace of liberalism.
Despite the tidiness of Toomey’s argument, the article still raises provocative and challenging questions. What of the person who exists during the periods of temporary or permanent incapacity? Toomey argues that someone experiencing a psychotic break might philosophically be “no one” because “they remember nothing, and they have no sense of narrative continuity with that self” (P. 1306), such that they cannot be offended by decisions made on their previous self’s behalf. I wonder, practically, whether things are really that black and white. There are certainly scenarios where the law deprives individuals of decision-making authority (e.g., Britney Spears’s conservatorship) where the continuity of identity between the individual’s past and current selves may be partially instead of completely severed.
I also wonder whether the article’s definition of love is unrealistically demanding, even if it is only a “thin” one. Are people capable of making decisions on another’s behalf solely motivated by the idea of advancing the other’s narrative, untinged by their own self-interest? As Toomey notes, the narratives of the lover and loved one are intertwined: you “incorporate, to some extent, their story into your own.” (P. 1325.) In light of this braiding, is it even possible for the decision-maker to establish the narrative distance necessary to recognize the decision that the person would have made? I’ve known plenty of people whose conception of what a loved one would want conveniently benefits them. And what of the significant number of people who will lack people to love them when they become incapacitated? Although Toomey argues that a substituted judgment standard grounded in love can still be applied to the unloved, I worry about embracing a justification that may inadvertently stigmatize lonely or isolated individuals.
These questions are important to ask when extending the teachings of Toomey’s article outside of the surrogate decision-making context. Although Toomey explicitly focuses on love between adults rather than between parents and their dependent children, it is hard not to see the potential parallels and payoffs in that, and other family law, contexts. For example, in recent years, family law scholars have attempted to reframe debates over parental rights around the needs of children. These discussions, which focus on rights and authority, could benefit from a robust scholarly discourse around the nature of love between parent and child, which might, similar to Toomey’s account above, focus in part on the parent’s concern for the personal identity of the child separate from their own. Between adults, love—as Toomey has defined it or as developed in other accounts—could enter conversations regarding whether nonmarital partners should enjoy rights to make decisions on behalf of incapacitated partners, sue for their injuries, and inherit property in absence of a will. Love could also inform whether certain types of contractual commitments—like the advance waiver of financial support obligations—are consistent with the nature of the intimate partnerships, whether marital or nonmarital, or what types of remedies are equitable when relationships dissolve. Toomey’s article, in short, demonstrates how much there is to gain from thinking seriously about love when regulating the family.
Mar 7, 2025 Linda C. McClain
In 1973, before the Supreme Court decided Roe v. Wade, two members of a group of clergy committed to helping women receive abortion care stated: “every woman must possess the freedom, guaranteed by the U.S. Constitution, to follow her religious conscience in the determination of whether she will or will not bear a child.” Religious supporters of abortion access also cited the Establishment Clause: states were adopting, in a religiously diverse nation, a religious view about when life begins and how to value fetal and maternal life. These pre-Roe examples, Elizabeth Sepper argues in Free Exercise of Abortion, are part of a long history of recognizing the religious dimensions of abortion decisions. A significant post-Roe example is the initial success, in federal district court, of a free exercise challenge to the Hyde Amendment, which excluded most abortions from Medicaid coverage while funding all other pregnancy-related expenses. After hearing extensive testimony by religious authorities about religious teachings on abortion, Judge Dooling framed a woman’s abortion decision, when “medically necessary to her health” and exercised “in conformity with religious belief and teaching,” as “conscientious,” and doubly protected under the Due Process Clause and the First Amendment. However, the U.S. Supreme Court, in upholding the Hyde Amendment in Harris v. MacRae, avoided reaching the Free Exercise argument and rejected plaintiffs’ Establishment Clause argument.
Despite this history, Sepper argues that in popular representation and in the political arena, religion and abortion are typically viewed in stark opposition, with “the religious position on abortion” assumed to be “pro-life” or “anti-choice.” (P. 179.) However, since the Supreme Court’s 2022 decision in Dobbs v. Jackson’s Women’s Health Organization returned the issue of abortion to “the people and their elected representatives,” appeals to conscience and religion to challenge abortion bans have become more visible. These claims about religious liberty, “for the first time in many decades,” center women “as the relevant religious and moral agents” and “make visible what we once knew and were made to forget”: “that we undertake religious decisions—to have children, form a family, and end a pregnancy—consistent with conscience and religious faith.” (P. 180.)
Such claims, however, meet with skeptical reactions from proponents of religious exemptions in other contexts. (P. 180.) Reactions include questioning the sincerity of persons raising them, redefining religion so that certain religions—such as liberal Jewish denominations—are not “really” religions, and arguing that free exercise only protects acts that are compelled by religious faith. (Pp. 196-205.) In Free Exercise of Abortion, Sepper refutes these skeptical responses and provides a useful primer on why such claims of religious liberty should prevail. She argues that the Roberts Court, in the last decade or so, has “turbocharged religious liberty rights,” with robust protection of Free Exercise claims to religious exemptions from a wide range of state laws—and similar expansive protection under the federal Religious Freedom Restoration Act. (P. 191.)
As for why such claims should prevail: Sepper explains that, under the Court’s so-called “most favored nation” approach, initially used in cases about governmental restrictions imposed during the COVID-19 pandemic, such as Tandon v. Newsom, if a restrictive law provides any secular exemptions, then it is no longer a “generally applicable” law; it must satisfy a strict scrutiny test for not providing religious exemptions. (P. 192.) Even if a law generally furthers a compelling interest, the Court, in Fulton v. City of Philadelphia, required that a state show a compelling state interest in “denying an exemption” to a specific religious person (or entity) objecting to the law.
On this approach, if an abortion ban provides any exemptions, then it must satisfy a strict scrutiny standard to explain why it does not exempt abortions sought for religious reasons. As Sepper observes: “virtually all bans allow the disposal of embryos created through in vitro fertilization”—a “dramatic underinclusion” because government “authorizes some significant destruction of embryonic life.” (P. 221.) Other common exceptions include pregnancy due to rape or incest, fetal anomaly, and ectopic pregnancy. (P. 221.) States have not offered plausible explanations for allowing these exceptions, which pose the same “danger” to fetal life, but not exceptions for abortion sought for religious reasons. These abortion prohibitions should fail strict scrutiny, given the Court’s own jurisprudence, but Sepper predicts that review by the Court will be “strict in theory,” but “unprincipled in fact.” (P. 218.) As Caroline Corbin observes, “the conservatives currently wielding power on the Supreme court share the conservative Christian views of states passing these bans.”
But the story need not end there. State courts interpreting the religion clauses of their state constitutions provide another forum that may be more receptive to religious liberty claims. Sepper urges state courts to “refuse to go along” if U.S. Supreme Court review proves “unprincipled in fact.” (P. 236.) Indeed, there have been some initial successes in state courts—in Kentucky, Indiana, and Utah—on constitutional and RFRA claims brought by persons whose reproductive lives are affected by these restrictive state laws, as well as doctors and clinics. (Pp. 195-96.)
Since the publication of Sepper’s article, an encouraging development in the Indiana case, Individual Members of the Medical Licensing Board v. Anonymous Plaintiffs, is that the Indiana Court of Appeals held that several women (four of them Jewish and one with spiritual beliefs not associated with any particular religious organization) and Hoosier Jews for Choice had shown a likelihood to succeed on the merits of their claim that Indiana’s restrictive abortion law infringed on their religious liberty, in violation of Indiana’s RFRA. The court concluded that terminating a pregnancy is a form of religious exercise, drawing on the U.S. Supreme Court’s expansive definition of the “exercise of religion” to include “not only belief and profession but the performance of (or abstention from) physical acts that are engaged in for religious reasons.” (P. 449 (citing Burwell v. Hobby Lobby Stores).)
In Burwell, for-profit corporations successfully argued that the Affordable Care Act (ACA)’s requirement that employers provide employees with insurance that covered reproductive health care (including contraceptive methods that Hobby Lobby and other plaintiffs found objectionable) violated their religious beliefs. In an important rejection of what Sepper has elsewhere described as the “asymmetric” protection of conscience, the Indiana court described the case before it as “the other side of the Burwell coin”: “If a corporation can engage in a religious exercise by refusing to provide abortifacients—contraceptives that essentially abort a pregnancy after fertilization—it stands to reason that a pregnant person can engage in a religious exercise by pursuing an abortion.” (Pp. 450-51.)
Respect for religious diversity among Hoosiers reflected the “whole range of religious belief and practice” among those who settled in Indiana. The court invoked U.S. Supreme Court precedents to argue that there need be no unity among “people of varying faiths” about reproductive choices for such choices to be protected. (P. 451.) Similar to the analysis that Sepper outlines, the court concluded that: (1) Indiana had not shown a compelling interest in protecting potential life from fertilization, given that its law permits abortions at all stages of pregnancy, under certain circumstances; and that (2) even if Indiana could show a compelling interest, its abortion law was not the least restrictive alternative of furthering it. The reasons that religious persons sought abortions—e.g., for their health—were similar in kind to the law’s exceptions. (Pp. 452-54.)
Worth mention, as well, is Judge Bailey’s concurring opinion, which concluded that Indiana’s legislature had “preferred one creed over another,” establishing one religion over another in violation of the Indiana Constitution’s bar on establishing religion. (Pp. 459-60.) The premise of Indiana’s law—that Indiana “has a compelling interest in the outcome of a woman’s pregnancy arising at the very moment of conception”—codifies a view of “when life begins, something intensely debated among adherents to various religions.” Further, the legislature “has not—to date—enacted wholly consistent statutory schemes conferring the rights of a human being upon zygotes, embryos, and fetuses” (mentioning the exemption for IVF). (P. 460.) Bailey argues that Indiana’s law adopts “a religious viewpoint held by some, but certainly, not all, Hoosiers.” (P. 461.)
Judge Bailey’s alternative vision of reproductive decision making in a “more perfect world” resembles that upheld by Judge Dooling and by early U.S. Supreme Court decisions about decisional privacy: a pregnant woman should “have no burden beyond examining her individual conscience, counseling with her spiritual advisor, and consulting with her medical provider.” (P. 460.)
These new challenges to state abortion bans have, as Sepper points out, brought to the fore stories of how decisions about abortion are, for many women and other pregnant persons, religious decisions. Instead of distrusting religious women and their capacity for moral agency and continuing the historical erasure of “pro-choice religious beliefs from the public square,” Sepper argues persuasively for recognizing that religious liberty implicates “central issues of reproductive justice.” (Pp. 211, 235.)
Feb 10, 2025 Josh Gupta-Kagan
When the Supreme Court, in Brackeen v. Haaland, upheld the Indian Child Welfare Act (ICWA)—federal legislation making it harder for child family regulation (a.k.a. child protection) agencies to separate Indigenous children from their parents—it centered Congress’s effort to remedy a long history of unwarranted separations of Indigenous families. That is how Justice Barrett began her majority opinion, and Justice Gorsuch significantly expanded on the point. Barrett and Gorsuch’s historical narrative focuses on past harms done and Congress’s remedy—ICWA. Even in Gorsuch’s more detailed telling, the role of Indigenous political and legal activism is at most implied. Laura Briggs offers a necessary and important addendum, making explicit that implied history. The complete story, which Briggs begins to tell, leaves a different impression, both about the future of ICWA and the efforts to transform the family regulation system more broadly.
Justice Gorsuch’s Brackeen concurrence recites the ugly history of state family regulation systems’ and private individuals’ “mass removal of Indian children from their families” in the mid-20th century, a practice which built on “a much older policy of removing Indian children from their families,” and which collectively “had devastating effects on children and parents alike.” Thirty-five pages of painfully detailed history of the victimization of Indigenous families follows, leading to the legal conclusion: “ICWA must stand” as a perfectly lawful action to preserve tribal sovereignty. Gorsuch concludes that federal regulation of affairs with Indigenous nations remains appropriate – even in family law, an area generally left to states – because “state intrusions on tribal authority” had happened for far too long and with devastating impact on Indigenous families and communities. As important as Justice Gorsuch’s concurrence is, Briggs explains how there is more to the story.
First and foremost, Congress only responded after years of activism led by impacted Indigenous families. Gorsuch at best alludes to this activism—“Eventually, Congress could ignore the problem no longer”—but does not detail it. Briggs fills the gap, telling the story of Native communities’ activism, aided by public interest lawyers. For instance, Elsa Greywind barricaded her home to try to prevent state CPS workers from removing her grandchildren, leading to her arrest. Greywind and others—advised by lawyers from the Association on American Indian Affairs, became public faces of a movement to challenge this state violence. They earned media attention, successfully advocated for federal hearings and, only after overcoming years of congressional resistance, secured ICWA’s passage in 1978. (Pp. 1138-42.)
Second, telling the history without this activism casts Congress as the hero and ICWA as the prize. Implicitly then, the ongoing conflict is simply whether ICWA can remain, and Brackeen the climactic fight. But, even after ICWA, shockingly large disparities in the number of Indigenous families separated via state action persist two generations later; while the “boarding schools” in which the government placed Indigenous children may be no more, much more action to preserve Indigenous families remains to be done. Indigenous children are in foster care at nearly twice the rate of Black children, who are themselves in foster care at 1.65 times the rate of White children.
Relatedly, casting Congress as the hero presents American institutions as redeeming themselves for past atrocities committed against Indigenous communities. Briggs insightfully connects this redemption narrative to broader disputes about American history. Right-wing voices seeking to prohibit schools from teaching a full accounting of this county’s racial history have sometimes insisted, as Briggs documents, that any such history include a redemptive arc—e.g., the United States had slavery and Jim Crow, then the Reconstruction Amendments, Brown v. Board of Education and the Civil Rights Act fixed things—and that books that emphasize challenges that remain be restricted. (P. 1137.) Brackeen’s incomplete history implies a similarly simplistic yet redemptive arc: The United States destroyed Indigenous families, then Congress enacted ICWA, and the Supreme Court upheld ICWA. A remaining challenge for our nation is telling more complex historical stories, especially when our institutions have redeemed themselves far less fully than some would like to believe.
Though Briggs’s paper features a critique of Brackeen and Gorsuch’s incomplete history, its implications extend beyond that context. It makes plain that impacted families’ activism, aided by attorneys, continues to be essential to ensure that the state does not separate families unnecessarily. Briggs shows that this was and continues to be true for ICWA and indigenous communities.
This lesson applies to ongoing activism to narrow the family regulation system so it investigates, surveils, and separates fewer families (Indigenous and not). Like activism for ICWA, it is increasingly led by impacted parents and supported by lawyers for parents and children. One leading group in New York City has a telling name: the Parent Legislative Action Network, which describes itself as a “coalition of impacted parents and young people, advocates, attorneys, social workers, and academics collaborating to effect systemic change.” PLAN has won significant limits on the state’s ability to place parents on the state central registry of abuse and neglect (which effectively prevents parents from working with children, in many health care jobs, or becoming foster parents themselves), and has influenced the agenda for further potential reforms.
In another state, such activism has had a particularly apt result: In 2024, following at least 6 years of effort, the Minnesota legislature unanimously passed the African American Family Preservation and Child Welfare Disproportionality Act. This Act applies some of the elevated standards for ICWA to all children subject to family regulation system involvement, including greater efforts to preserve and reunify families (“active efforts” as ICWA requires, not merely “reasonable efforts” as family regulation law more generally requires), and a clear legal preference for kinship placements over placements with strangers (which appears in ICWA but not in many foster care statutes, and which shifts the burden to agencies to explain why a kinship placement is impossible rather than require families to show why it is viable). The Minnesota legislation thus takes a victory from ICWA advocacy in the 1970s and seeks to leverage it to limit unnecessary family separations in the system as a whole. (A recent Montana bill did the same.) These legislative developments imply a very different story. ICWA and Brackeen are not the redemptive end, but the potential beginning of a new era of reforming the family regulation system.
Cite as: Josh Gupta-Kagan,
Completing ICWA’s History, JOTWELL
(February 10, 2025) (reviewing Laura Briggs,
Haaland v. Brackeen and Mancari: On History, Taking Children, and the Right-Wing Assault on Indigenous Sovereignty, 56
Conn. L. Rev. 1121 (2024)),
https://family.jotwell.com/completing-icwas-history/.
Jan 9, 2025 Brian Bix
The role of extended family in childcare has always been significant. As Stephanie Tang points out in her excellent article, Best Interests of the Child and the Expanding Family, one study (in 2021) found that nearly a quarter of Americans live in multigenerational households, while another study (from 2017) reported that roughly one third of households with children depend on extended family for childcare. (Pp. 266-67.)
The attitude of American family law to extended family could be described variously as ambivalent, inconsistent, or simply confused. At the Supreme Court, we have, first, Moore v. City of East Cleveland, where the Court held that East Cleveland’s single-family zoning ordinance could not define “family” in such a way that a grandmother could not live with her two grandchildren (who were cousins to one another). The Court commented: “Ours is by no means a tradition limited to respect for the bonds uniting the members of the nuclear family. The tradition of uncles, aunts, cousins, and especially grandparents sharing a household along with parents and children has roots equally venerable and equally deserving of constitutional recognition.” However, despite this indication that extended family might be entitled to constitutional protection, when the same Court was faced with a grant of visitation to grandparents over the objection of a parent in Troxel v. Granville, the Court, in affirming parental rights, did not treat grandparents as having any special standing. Instead, the grandparents were treated as simply another example of a non-parent, holding that, in contests regarding custody or visitation between a parent and a non-parent (even if that non-parent is a member of the extended family), a strong presumption must be given in favor of the parent (at least if the parent is fit).
In Tang’s article, the focus is less on situations where extended family members are in disputes with legal parents regarding custody or visitation, and more on considering extended-family care as a factor in disputes about custody and relocation between two fit parents. And here, once again, the courts seem to give mixed signals about extended family. On the one hand, courts will sometimes see the availability of extended family caregivers as a plus in considering a custodial parent’s motion to relocate (that it is good that the child will have contact with extended family and that some of the child’s care can come from relatives), but sometimes the courts will consider such care by extended family in a negative way in the initial custody contest (favoring the parents who can take care of the children themselves over those who may have depend on extended family for significant portions of the child-care). (Pp. 279-81.)
The other and overlapping theme of Tang’s article is a critique of the Best Interests of the Child standard for child custody determinations. Standard criticisms of the Best Interest standard include that it is unpredictable and gives judges too much discretion; it encourages litigation; and the standard effectively encourages parents to produce (truthful or otherwise) harmful evidence about the other parent’s fitness, which, in turn, makes it harder for the parents to cooperate afterwards in raising their children together. The Best Interests standard may also reflect a misplaced confidence in the ability of psychologists and other professionals to determine which arrangements will in fact benefit children the most.
Tang’s own discussion of the use of the Best Interests standard in custody disputes is supported by a 51-jurisdiction (50 states plus the District of Columbia) survey of custody statutes. The article reports that every jurisdiction adopts the Best Interests standard, but the statutes vary considerably regarding whether they list factors for court consideration and whether the courts are required to create findings of fact regarding the statutory factors. While Tang repeats a number of the standard criticisms mentioned above (e.g., P. 271), her own recommendations focus on a trio of modest changes rather than any drastic overhaul. Tang argues (Pp. 304-6) that custody statutes should list factors a court must consider, include as one of those factors the availability of care by extended family; and require courts to discuss which factors led to the court’s ultimate custody decision.
I agree with Tang regarding these proposed reforms: that, if enacted, they would make a noticeable change, focusing courts on extended-family care and making it more likely that the courts will treat such care as an important and positive factor.
Nov 20, 2024 Aníbal Rosario-Lebrón
Nila Bala,
Parent-Child Privilege as Resistance, ___
B.C. L. Rev. ___ (forthcoming), available at
SSRN (Feb. 2, 2024).
The Rules of Evidence have been increasingly criticized for serving as a tool to maintain patriarchy and White supremacy. Scholars have shown how rules such as relevance, excited utterance, character for untruthfulness, rape shield, or credibility discounting promote gender oppression. Similarly, they have uncovered how unregulated evidence, character evidence, and prior convictions have contributed to the carceral state and racial and economic inequality. Recently, however, two articles have come out advocating that instead of abolishing or reforming rules, we adopt new ones, specifically a new privilege, in the realms of pregnancy termination (Aziz Z. Huq & Rebecca Wexler) and children’s rights (Nila Bala).
Huq and Wexler advocate for a privilege to shield abortion-relevant data from “warrants, subpoenas, court orders, and judicial proceedings” to counteract the elimination of a federal abortion right after Dobbs. Bala goes even further, arguing for creating a testimonial and confidential child-parent privilege including digital and written communications not only to protect minors and parents against gender-affirming care and abortion criminal prosecutions but also in any other criminal, juvenile, or civil context. In addition to its broader application, Bala’s proposal struck me the most because her justification for creating the rule rests on a privileging resistance framework. In The History of Sexuality, Foucault observed that “[w]here there is power, there is resistance, and yet, or rather consequently, this resistance is never in a position of exteriority in relation to power.” Bala’s forthcoming article greatly exemplifies this axiom.
She starts by recognizing that courts and scholars greatly disfavor privileges as the instrumental rationale to forego truth in favor of promoting privacy and relationships has been empirically disproven because most people are unaware of evidentiary privileges or misunderstand their scope and would share information regardless of the existence of the privilege. Consequently, scholars have argued that there is no reason to exclude this information from a trial.
Bala then turns to how women and children lacked judicial personhood and were considered property of the father/husband under coverture and how that was used to preclude women and children from testifying. As coverture disappeared, a spousal privilege emerged as a way to guarantee the interests of men. This privilege has been redefined and reinterpreted in an attempt to update it to our current goals of gender equality and purge it of its patriarchal character. The disappearance of coverture, however, did not bring a parent-child privilege (although it exists in a very limited form in a handful of states). Perhaps, as Bala aptly points out, the reason for it is that the United States continues to privilege marriage over other social relationships like child-parent and still treats children, in many respects, like parental property.
After disentangling this history of the child-parent privilege and patriarchal family structures, Bala proceeds to proffer a new instrumental justification for it. She argues that because the legal system relies on parents formally and informally as a legitimizing force in criminal and juvenile proceedings such as for Miranda waivers or access to other constitutional rights, they cannot be put in the conundrum of advising their children and being forced to testify or not providing advice to them to avoid testifying against their offspring. Although this argument is important, the most valuable contribution of her article comes when she offers non-instrumental justifications and embarks on describing how adopting the child-parent privilege is a tool of resistance.
First, she argues for the recognition of relational privacy (a conception of privacy resting on relational autonomy in which information can be shared with third parties but remain private for others outside that relationship) in the child-parent relationship to protect children rather than to shield parents’ decision making as the law has consistently done. This approach is crucial if we wish to rethink children’s rights. As Bala argues, we must recognize that even though children are not legally autonomous, we must foster the relationships that allow them to act upon their partial autonomy and become fully political adult actors. And we must provide legal means for children to do so.
This idea links directly with the privileging resistance framework that Bala advances in her article. She argues that adopting the child-parent privilege is a way to resist the oppressive legal system that separated Black and Native families in the United States and that continues to oppress them through the juvenile, criminal, and child welfare system. Protecting the communication between children and parents of these families is a way to honor their historical resistance strategy of teaching children to read and orally pass down traditions and to protect their intimate family spaces that have not been shielded from state intervention for so long. Taking as an example Australia, Bala also argues that the privilege would serve to decenter the carceral state as it would allow parents or anyone de facto or functionally in that position to engage with children in more successful approaches such as restorative justice by adding diversion opportunities from the legal system.
Similarly, the privilege would serve as a resistance tool in the healthcare context. Bala explains how, after targeting providers and allies, criminalization of abortion and gender-affirming care moves to the targeting of parents. As such, a child-parent privilege provides a way to resist an unjust law by foreclosing the use of evidence produced by the most involved parties.
Here lies, perhaps, Bala’s greatest contribution. Her approach challenges the implicit assumptions about the validity of the adversarial system and the substantive laws. In other words, her privileging resistance framework forces us to deal with the reality that the legal system will have unjust laws and that its design is unfair. Thus, we must build into the law resistance mechanisms that need not be justified under the validity of the legal system, but instead in its inherent injustice. I gladly accept her invitation to rethink the legal system always from the perspective of a locus of power in which privileging resistance is indispensable if we wish to construct a just society.
Cite as: Aníbal Rosario-Lebrón,
Privileging Resistance, JOTWELL
(November 20, 2024) (reviewing Nila Bala,
Parent-Child Privilege as Resistance, ___
B.C. L. Rev. ___ (forthcoming), available at SSRN (Feb. 2, 2024)),
https://family.jotwell.com/privileging-resistance/.
Oct 24, 2024 Rachel Rebouché
Reva B. Siegel & Mary Ziegler,
Comstockery: How Government Censorship Gave Birth to the Law of Sexual and Reproductive Freedom, and May Again Threaten It, __
Yale L. J. __ (forthcoming), available at
SSRN (March 18, 2024).
In Comstockery: How Government Censorship Gave Birth to the Law of Sexual and Reproductive Freedom, and May Again Threaten It, Professors Reva Siegel and Mary Ziegler demonstrate how the anti-abortion movement’s effort to reinvent the Comstock Act (1873) as a national abortion ban lacks historical, legal, and democratic legitimacy.
The Act originated as an obscenity statute that criminalized “any article or thing designed or intended for the prevention of conception or procuring of abortion” or for “an indecent or immoral purpose.” Comstock revivalists, to borrow Siegel and Ziegler’s term, claim that the Act’s prohibition on mailing “any article or thing” bans the transit, in the U.S. mail, of all materials connected to abortion care—pills, equipment, or most anything else. Revivalists argue that courts should begin enforcing the Act to ban abortion nationwide, and some judges appear sympathetic to those arguments. In litigation described below, a federal district court and an appellate circuit court cited the Comstock Act in deciding to suspend FDA approval of medication abortion or to reimpose restrictions on it.
Siegel and Ziegler demonstrate why this interpretation of the Act is deeply flawed, combing through legislation, commentaries, letters, court cases, and other sources. In the late 1800s, Anthony Comstock and his allies began a campaign to write sweeping definitions of obscenity to safeguard “sexual purity” and to punish nonprocreative sex, inside and outside of marriage. Anti-vice activists viewed movements that sought to liberate women politically and sexually as threats to the “God-ordained” social order. As part of these efforts, they expanded the federal definition of obscenity to include writings and items intended for contraceptive or abortion use.
In 1878, the Supreme Court affirmed the Act’s constitutionality and held that the power to establish post-offices included the authority to regulate what could be mailed. In the same era, the standard for determining obscenity was based on what would affect the most impressionable citizens. (P. 34.) But the Act quickly became a tool for revenge between private citizens and the vehicle by which Anthony Comstock and others targeted supporters of free love and critics of obscenity laws.
Siegel and Ziegler detail how the Act’s punitive consequences and inconsistent enforcement chilled sexual expression and censored speech. Eventually, public opposition to the Act led to its disuse and appellate court decisions narrowed the application of the law. The trials and sentences of “Comstockery” opponents, such as Mary Ware Dennett and Margaret Sanger, received wide publicity and condemnation. Dennett’s conviction led to appellate decisions that narrowed the application of the Act: United States v. Dennett, 39 F.2d 564 (2d Cir. 1930), for example, refashioned the threshold for obscenity, focusing on the impact on society at large rather than on its most impressionable citizens. (P. 53.) Both court decisions as well as public resistance shifted the understanding of what was obscene and what was not, namely, legal healthcare that the Act never targeted. In interpreting the Act, courts protected physicians’ rights to “[promote] the well-being of their patients.” Even the Act’s most strident champions, including Anthony Comstock, had no intention of banning lawful abortions but targeted unlawful abortion, which was seen as a means of hiding illicit sexual conduct.
Although the Comstock Act has been mostly dormant for the last one-hundred years, the provisions on abortion have remained in the U.S. Code, though Congress repealed the language on contraception. Perhaps this is not surprising in an era when pre-viability abortion was a constitutional right. But consider that the rest of the Comstock Act, with its criminal federal punishments for mailing all “obscene, lewd, lascivious, indecent, filthy or vile article[s]” stands, too. Siegel and Ziegler write: “The obscenity law was enacted and then preserved on the books, entrenched against reform or repeal by forms of government action that today we would view as unquestionably unconstitutional and that branded certain forms of political speech, intimate behavior, and reproductive decision-making as unworthy long after enforcement of the obscenity statute had ceased.” (P. 10.) Contesting Comstock, over the life of the Act, helped pave the way for constitutional rights to contraception in Griswold and Eisenstadt and then to abortion in Roe. The Supreme Court developed the right to privacy from challenges to state obscenity laws (mini-Comstock Acts), which fundamentally intruded on the most intimate decisions of people’s lives.
Nevertheless, anti-abortion activists are counting on judges to enforce their interpretation of the Act. Alliance for Hippocratic Medicine alleged that the FDA exceeded its regulatory authority in approving the first drug in a medication abortion, mifepristone. The Supreme Court decided in June 2024 that Alliance had no standing to sue. But that was after a federal district judge in Amarillo and a panel of the Fifth Circuit Court of Appeals suspended, among other holdings, the FDA’s decision to lift a rule that would permit mailed medication abortion. As noted, both courts cited the Comstock Act as a potential bar to shipping pills, and other items, to patients.
While the Supreme Court made no mention of the Comstock Act in its Alliance opinion, the arguments accepted by the lower courts in the case are not going to disappear; indeed, they have a trajectory that predates Dobbs, the case that overturned Roe, and they are the basis of plans for an anti-abortion presidential administration
Bills calling for repeal of Comstock’s abortion language have been introduced in the Senate and the House but presently have slim chance of passing. Even if the bills fail, federal legislators should have to take a position on the Comstock Act. Representatives should have to publicly support a law that, enacted at a time when women could not vote, polices all sexuality through the criminal law. They should have to say out loud that Anthony Comstock’s vision of morality and punitive censorship should govern everyone’s lives.
Comstockery provides an invaluable resource for refuting revivalists’ arguments, shining a light on the Act’s history, and demonstrating how resistance to Comstock—and its definition of obscenity—yielded modern understandings of fundamental rights to expression and intimacy. Revivalists’ rewriting of this history is not a project of adhering faithfully to the text of an act, as Professors Siegel and Ziegler convincingly demonstrate. It is an end run around what revivalists cannot achieve through any democratic process—an absolute, criminal ban on abortion applied across all states.
Cite as: Rachel Rebouché,
The Radical Reinvention of the Comstock Act, JOTWELL
(October 24, 2024) (reviewing Reva B. Siegel & Mary Ziegler,
Comstockery: How Government Censorship Gave Birth to the Law of Sexual and Reproductive Freedom, and May Again Threaten It, __
Yale L. J. __ (forthcoming), available at SSRN (March 18, 2024)),
https://family.jotwell.com/the-radical-reinvention-of-the-comstock-act/.
Sep 25, 2024 Catherine Smith
Toni Morrison’s Nobel Prize winning novel, The Bluest Eye, and Maia Kobabe’s Gender Queer: A Memoir, topped the list of the 2022-2023 school year’s banned books. Certain groups of parents invoke their rights to restrict their children’s access to viewpoints different from their own about history, race, gender identity, and reproductive health. Anne Dailey’s important article, In Loco Reipublicae, provides a different take: parents should have a constitutional duty to their children to expose them to ideas outside the home to prepare them for democratic citizenship.
In a salute to children’s rights, In Loco Reipublicae claims a new middle ground in a constitutional framework that has far too long abdicated to parents a “unique and near-absolute custodial authority for children’s citizenship rights.” (P. 428.) According to Professor Dailey, an expansive parental rights doctrine limits young people’s exercise of their own rights because it fails to recognize that parents have constitutional duties to their children. The article turns to children’s well-established First Amendment right to exposure to the “marketplace of ideas” as an opening salvo and a means to illustrate what could be a paradigm-shifting parental obligation to steward children on the path to becoming independent rights-holders. (P. 426.)
The Supreme Court and democratic theorists have highlighted the importance of children’s free speech rights to “foster their development as democratic citizens.” (P. 421.) Yet, the unchecked role of parents in stifling children’s rights operates as a constitutional jurisprudential gap between these First Amendment aspirations and children’s actual ability to realize those rights. (Pp. 436-38.) As Dailey explains, “protection for relatively unrestricted parental authority over children’s exposure to ideas fortifies a system of family governance that effectively negates children’s rights to engage with ideas outside the home.” She provides a more normative vision:
Parents may seek to inculcate their beliefs in their children, but they cannot deprive children of the basic knowledge that other belief systems exist, a knowledge critical to developing the skills of democratic life. Parents are not obligated themselves to instill democratic norms, or agree with them, but they are obligated to respect and facilitate children’s opportunity to become democratic citizens by exposing children to the world of ideas outside the home. (P. 426.)
A significant hurdle to closing the child-rights limiting gap is the well-established notion that parents are private actors free from constitutional duties to their children. In Loco Reipublicae begs to differ and persuasively argues for a more evolved understanding of the role of parents in a democracy. (Pp. 449-50.) Resting on the proposition that “children are different by virtue of their in-custody status,” the article relies on Supreme Court jurisprudence to powerfully argue that “children cannot effectively exercise their rights without the approval, tacit or otherwise, of their custodial caregivers.” Just as the state assumes constitutional duties attendant to its lawful custody of children as in loco parentis (“in the place of the parent”), in loco reipubulicae claims the inverse, “parents standing in the place of the state” must also assume constitutional duties to children (Pp. 451.)
Homeschooling provides an area of childrearing that might breach a parental duty to expose children to ideas—if homeschooled children are not exposed to the world of ideas. This type of isolation at the hands of parents if allowed to go unchecked by the state restricts children’s exposure to different ideas and democratic values, limits their critical thinking skills, and denies children identity-formation needed to develop their own independent citizenship rights.
The article not only provides the benefits of imposing parental duties, it also directly tackles some of the challenges such as: defining what constitutes a “harmful idea,” addressing concerns about increased state power to intervene in family life and the risks it poses, and the possibility of infringing on the exercise of parents’ religious beliefs. With these concerns in mind, Dailey seeks to “fortify the parent-child relationship while, at the same time, respect[ing] children as developing democratic citizens in their own right.” (P. 419.) She provides four ways to achieve this more balanced vision, including: requiring courts and legislatures to set limits on parents’ rights when they stand in the way of children’s development of citizenship rights; affirming state authority to enforce parental duties to children outside the home; recognizing children’s independent decisionmaking in certain contexts; and providing parents with the support they need to fulfill their in loco reipublicae duties. (P. 426.)
In Loco Reipublicaie boldly centers children’s rights and adeptly fills an existing jurisprudential gap by infusing parental rights with important duties to respect and facilitate children’s exercise of their own citizenship rights. It is a children’s-rights-forward shot across a heavily prioritized parents’ rights bow. It’s about time.
Aug 15, 2024 Dara E. Purvis
If you do not read as much about celebrity gossip as I do, you likely missed recent news that Shiloh Jolie-Pitt, the child of actors Angelina Jolie and Brad Pitt, filed to remove “Pitt” from her name within days of her eighteenth birthday. The split between Jolie and Pitt was sparked by an alleged incident of domestic violence and several of Jolie’s other children have already informally dropped “Pitt” from their names, so the petition itself is unsurprising. Also unsurprising, however, is that every article I saw about the name change petition included Brad Pitt in the headline—so no matter what her legal name will be, Shiloh will continue to be identified as Brad Pitt’s daughter.
But what if she could also petition to sever that link? The story reminded me of a fascinating article published last year by Sean Hannon Williams arguing that adult children should have exit rights from the parent/child relationship and mapping out several versions of what that exit might look like. Professor Williams uses a less sensational but more concrete example to illustrate the need for exit rights; an acquaintance raised by an abusive mother used an adult adoption to sever her legal relationship with her biological mother. Williams points out that the adult adoption was only possible because the woman’s stepmother was willing to become a replacement legal mother—in the absence of someone willing to take on that legal status, his acquaintance would have no ability to legally separate herself from her biological mother. He asks why adult children should be “trapped in a legal relationship that they never consented to,” (P. 668) and spends the rest of his article outlining the why and how of exit rights for adult children.
Williams begins by dispensing with what he calls the “natural law façade of family law,” (P. 672) arguing that availability of divorce upon demand and adult adoption, both of which require the consent of only one person exiting the marriage or parent/child relationship, show that family relationships are not permanent. He then outlines theoretical justifications for an adult child’s duty to their parents, both rejecting them as a moral obligation and arguing that even if they did create a moral duty, that duty should not be enforced through family law. Williams moves on to examine the question from the point of view of the adult child wanting to exit the relationship. I found this portion of the paper to be one of the most thought-provoking sections, particularly when Professor Williams discusses different family roles as elective (assumed by choice), ascriptive (imposed from outside), or conscriptive (imposed by one member of a relationship upon another person). (Pp. 693-96.)
As Williams describes, a single family relationship can take on any of these forms depending on the circumstances—becoming a parent might be elective or ascriptive (particularly in the wake of Dobbs v. Jackson Women’s Health), the parent/child relationship could be elective on the parent’s side but ascriptive on the child’s, or ascriptive on a parent and theoretically elective on behalf of the child if another parent or the state chooses to seek child support on behalf of a minor child. These identities are complicated further once existing examples of exit are included—marriage is jointly elective, but taking away the status of “spouse” can be elective by the party seeking the divorce yet ascriptive/conscriptive if the other person would rather stay married. (P. 696.) Some of the most active debates within family law implicitly center on what relationships should fit into which type of identity.
Having described the current state of unequal and shifting roles within family law, Professor Williams moves on to discuss the stakes for an adult child who wishes to terminate their legal relationship with their parent. There are some legal implications of remaining in the parent/child relationship—primarily inheritance rights and the ability to make medical decisions for an incapacitated parent or child—although they are obviously fewer than before the child reaches the age of majority. But in addition to the legal stakes, Professor Williams also stresses the social and identity-related stakes for an adult child who doesn’t want any tie to their parent. He analogizes the identity aspect to marital divorce, asking the reader to consider how they would feel if the state removed the legal tie to a former spouse, but insisted that you remained spouses in name only. Williams argues, probably correctly, that anyone who supports the existence of legal divorce would bristle at the idea, seeing expressive value in saying who you are not in a familial relationship with, and argues that adult children have the same interests in severing all links to a parent.
Having made his case for the “why,” Professor Williams outlines a number of possible exit regimes, including the substance of whether the former parent and child would become legal strangers or simply have asymmetric obligations (P. 714), such as allowing the adult child to inherit and make medical decisions for the parent if the parent was incapacitated, but not giving the parent the same rights. He also describes six different procedural options of what might justify terminating the parent/child relationship. (Pp. 715-25.) Many of the questions I thought of as I read were covered in the last section of the paper confronting possible objections, which I appreciated since many readers may bristle at the idea of adult children being able to both go “no contact” and cut off their parent legally.
As my example of Shiloh Jolie hopefully illustrates, this is not an article that convinces the reader of a thesis and is then neatly slotted into future footnotes demonstrating a single conclusion. Instead, the article has stuck with me because of how well it raises a raft of questions not just about the specific idea of adult children severing the legal relationship with their parents, but broader themes such as the idea of permanence in family statuses and the interactions between legal and social roles. I have some remaining prosaic questions: the law draws a bright line at the age of eighteen between “child” and “adult,” but my instinctive response to an argument about divorcing parents varies if I imagine an eighteen-year-old versus a thirty-year-old. The law’s bright line seems increasingly artificial and inaccurate, and severing a legal relationship before a person’s frontal lobe is fully developed and at an age when parent/child relationships can often be tempestuous seems saliently different than the same choice made by a person who is by any measure a fully cognitive adult. I also wonder about the potential exploitation of such exit rights—an eighteen-year-old who will receive considerable need-based financial aid for college if they are deemed to have no parents, for example.
The questions that keep popping up in my mind, however, are broader. Thinking about how and why legal relationships create an identity that a person might want to discard prompted a range of questions about the causality between legal relationship, social norms, and identity values. Professor Williams writes at length about the identity value of a legal status, which I find very easy to recognize in other family law contexts. For example, when marriage equality was still in question, it seemed obvious why giving same-sex couples all the legal consequences of marriage but calling their relationships something else like domestic partnerships or civil unions was still not equal. But that may not be true throughout family law, or it may not be true where the granting of legal recognition itself was the significant identity-conferring move.
For example, there has been some recent media attention to the plight of ultra-Orthodox Jewish women trapped in a marriage because their husband refuses to give them a gett, a religious divorce. Such women are free to secure a civil divorce, but it is the private social and religious identity as still married that is significant to them, not their legal status as recognized by the state. And as mentioned earlier, every single news story about Shiloh Jolie had words such as “daughter of Brad Pitt” in the headline, and if Shiloh were to sever Pitt’s parentage through an adult adoption I am confident headlines would continue to link the two. Professor Williams talks about the significance of social norms around marriage as one reason justifying exit rights (P. 700), but as polyamory wins greater public recognition and acceptance it seems fair to question whether those norms have as much strength as they used to. And if those norms weaken, and the identity-granting dimension of marriage becomes less important, by Professor Williams’s logic that divorce is necessary to remove the identity of “X’s spouse,” if society doesn’t care if you’re X’s spouse does that weaken the case for no-fault divorce?
I don’t have answers to any of these thoughts, but it is rare that a single article prompts so many open-ended questions in my mind. Professor Williams described his goal as “begin[ning] a conversation,” (P. 712) and he has succeeded many times over.
Jul 17, 2024 Naomi R. Cahn
Catherine Smith,
“Children’s Equality Law” in the Age of Parents’ Rights, 71
Kan. L. Rev. 539 (2023), available in draft at
SSRN (April 21, 2023).
When I teach canonical parentage and child custody cases such as Michael H. v. Gerald D. or Troxel v. Granville, I ask the class what they know about Victoria or Isabelle and Natalie Troxel. Students are often a little startled to hear the names of the children at the core of these cases, and we then discuss how rarely the children’s actual interests are addressed. The cases are framed as battles between adults over their rights to the child; even though Victoria asserted her own liberty and equal protection claims, the Michael H Court was highly dismissive of them.
Catherine Smith has been working to change that situation. Along with Northwestern Pritzker School of Law Associate Dean Robin Walker Sterling and George State College of Law Professor Tanya Washington, Smith has received a grant of over $2 million to fund a new project, The Advancement for Children’s Constitutional Rights Consortium. One goal is to develop a new casebook, Children and the Constitution, which will focus on children’s rights in the constitutional law canon. Professor Smith’s article, “Children’s Equality Law” in the Age of Parents’ Rights, provides insight into some core aspects of what this revisioning of the constitutional canon might involve. The article notes that, while one conception of children’s rights could include both liberty and equal protection rights, an even “broader conceptualization could invoke a panoply of young people’s social and civil rights.”
“Children’s Equality Law” focuses on one aspect of the new conceptualization that Smith envisions, the possibilities of using the Equal Protection Clause to protect young people when discriminatory treatment results in “group-based hierarchies.” The article notes that constitutional law relies on an assumption that parents have the political power and authority to ensure their children’s well-being. That assumption is not always accurate, Smith points out, and children need their own discrete rights because their parents may be unable to provide the protection they need.
As an initial matter, the article observes that the class of children has never (or at least not yet) been deemed to be subject to any level of scrutiny beyond rational basis. This is partially the result of the Supreme Court’s emphasis on parental rights to the care, custody, and control of their children; correspondingly, Smith observes, parents are presumed to act in their children’s best interests. While others have explored the benefits and drawbacks of that assumption, as well as its use as political rhetoric, Smith looks at a different set of concerns.
Even when parents seek to act in their children’s interests, Smith observes, they may not have the power to promote their children’s interests. As an example, Smith turns to Oyama v. California, 332 U.S. 633 (1948). Kajiro Oyama bought property for his six-year-old son, Fred, in 1934, and a second parcel of land in 1937. Kajiro Oyama subsequently petitioned for guardianship of his son. At the time, California’s Alien Land Act prevented those who were ineligible for American citizenship from buying agricultural real estate, with any property purchased in violation of the law escheating to the state. (The Court explained, in note 3, that federal law permitted “only [] free white persons and persons of African nativity or descent” to be naturalized, and that “it seems to be accepted that Japanese are among the few groups [sic] not eligible for citizenship.”). During World War II, California filed a petition against the Oyamas to declare an escheat of the two pieces of land, and the California courts found that Mr. Oyama’s purchase of the land was made with the intent to avoid application of the Alien Land Act.
Both son and father sued, claiming that the Alien Land Act violated their rights under the Equal Protection Clause. The Supreme Court found that Fred Oyama, an American citizen, had been discriminated against because his father was Japanese, without even reaching the claim that his father had experienced discrimination. To be sure, the discrimination was based on citizenship, rather than childhood. That is, the discrimination was based on the parent’s country of origin, not on discrimination between the rights of adults and children.
In other cases, such as Brown v. Board of Education and Levy v. Louisiana, Smith notes that consideration of children’s rights has been critically important. Such cases, and others discussed in the article, show that “children need rights to protect themselves” (P. 546). Their parents were, essentially, powerless, unable to safeguard their children’s rights.
While these cases do give some voice to children’ interests, they do not, by themselves, articulate a robust jurisprudence that addresses the parameters of children’s rights as individual liberties. Moreover, Smith observes that “[t]he cases are rarely seen or interpreted as a collection of cases establishing a children’s equal protection jurisprudence” (P. 550).
By bringing these cases together, Smith persuasively argues for just such a jurisprudence of children’s rights. The overall project of rewriting the constitutional canon to center children’s rights is groundbreaking.
And this effort has resonance with so many other strands of contemporary scholarship. Consider the work of Aaron Tang, who has found that while children won in over 60% of their cases heard by the Supreme Court from 1953-2022, they continue to confront hurdles to improvements in child welfare and educational equity. Tang argues that, “over the long run, real and substantial social progress is unlikely to be driven by nine justices in robes.” Tang suggests that “work[ing]’ in the trenches” to change policy could be a meaningful source of promoting children’s rights. In addition, Smith’s use of Oyama as an example of the utility of children’s rights also provides a stunning example of Kaipo Matsumura’s observation of the need to “fit [] Asian Americans into the story we teach about family regulation.” Rose Cuison-Villazor has already argued for the need to incorporate Oyama into the property and constitutional law canons, and Smith cites Cuison-Villazor’s work to show how children’s rights can impact the “marginalized groups” of which these children are members.
Ultimately, Smith’s article breaks down silos, revealing the extent to which our blinkered categories have resulted in an impoverished understanding of the constitution and the law more broadly. “Children’s Equality Law” shows why children’s equality matters in constitutional law, in other legal fields—and to families themselves.
Jun 21, 2024 Albertina Antognini
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.
