Nov 17, 2025 Philomila Tsoukala
A mother sits at a Child Protective Services office, surrounded by the scents of coffee and nicotine gum. Notices about food aid, housing forms, and a chart of deadlines blur as she struggles to focus. She is unemployed—not addicted or pathologically unstable—simply unable to find stability without family support and public aid. Her fraught relationship with her mother-in-law, who has provided childcare and now serves as kin care under Kentucky’s child protection system, has shifted. The caseworker explains that the grandmother may be recognized as a de facto parent, which would allow the state to close the neglect case, cease reunification services for the mother and foster care training and resources for the grandmother.
This grandmother’s bureaucratic pivot from helpful kin to potential legal parent provides the starting point for Rama Hyeweon Kim’s analysis in Parents, Kin, and the State: Family and Households Between Functional Parenthood and Child Protection. Kim begins by noticing that much of the literature on LGBTQ families and assisted reproductive technologies advocates for the recognition of functional parenthood as a normative good, without much engagement with the potential downsides of such a development. (P. 5.) Her article provides precisely such an in-depth engagement. Kim suggests that the costs of this model are real and uneven. Specifically, functional parenthood can burden parent–child relationships in poor and racialized communities, often plagued by higher-than-average rates of parental incarceration and substance abuse, which she calls “peripheral families” (P. 11), by reshaping power within the family under state oversight. Thus, her core claim is not that functional recognition is always wrong, but rather that its use in child-protection contexts brings distributional consequences that much of the reform literature has not fully considered, “including potentially severe and negative impacts on parent–child relationships.” (P. 1.)
Building on this critique, Kim maps the intersection of functional parenthood with kinship care under child protective services in subsequent sections. Section I outlines the doctrinal field of kinship care, highlighting two domains that are often treated separately: private custody and parentage law on the one hand, and public child protection on the other. While the map is descriptive, it also illustrates the transmission of concepts. Here, functional parenthood—initially designed for private disputes—now crosses the boundary and shapes administrative child-welfare practice. Recognizing this crossing reframes the question: it is not whether functional recognition is good in the abstract, but how it operates when the state is already involved and kin care is part of an ongoing public case.
With this theoretical foundation, Part II shifts focus to Kentucky and provides the article’s empirical and doctrinal core. Kim reviewed 79 appellate cases from 2019 and 2023 where functional custody law was applied and conducted thirteen interviews with attorneys, judges, child protection agents, and policy advocates. (P. 12.) Kentucky’s de facto custodian statute gives a kin caregiver standing equal to a parent once a court finds clear and convincing evidence that the caregiver has been the child’s primary provider of care and financial support for a set period. (P. 34.) On paper, this pathway stabilizes existing placements. In practice, Kim shows, it often arises within or alongside neglect proceedings. CPS increasingly relies on kin as first-line placements through voluntary safety plans or informal diversions from formal foster care. This reliance, together with administrative pressure to achieve permanency and close cases, creates incentives to convert provisional kin roles into legal custody through a private-law route. The file closes, the child stays with kin, and the state withdraws, without the full support, oversight, or reunification services that formal foster care would have provided.
The case study documents this dynamic in appellate decisions and practice accounts, showing the two-way traffic between private and public systems. Voluntary kin placements can lead to private petitions for de facto custodian status, while private suits reshape or interrupt ongoing CPS cases. The agency’s search for kin resources also shifts family bargaining. Parents and kin negotiate under the threat of possible state action, while lawyers and judges frame stability in terms of functional caregiving that can be quickly formalized. The result is not a clear victory for anyone. Children may gain continuity; kin may take on long-term obligations with limited support; parents may see their legal position weakened without the protections and services that come with formal dependency cases.
After tracing the mechanics of these processes, Kim turns to the normative terrain in Part III. Here, she develops a complex account that resists easy resolutions. Functional recognition in child protection, she suggests, can take four distinct paths. It can deliver benefits by stabilizing a child’s home with a caregiver already performing the role. Second, it can impede reunification by formalizing custody before a parent has had a fair chance at services. It can amplify harm by legalizing intra-kin conflict and rendering temporary measures difficult to reverse once formalized as parentage. Finally, it can also mitigate harm by checking agency placements that might otherwise occur without adequate scrutiny. Which path ultimately emerges, Kim emphasizes, depends less on doctrinal language than on local practice, fiscal pressures, and agency incentives. Her point, then, is not to condemn functional parenthood, but to issue a warning about the importance of design and context.
Kim’s analysis builds on and extends two classic frameworks that have shaped the study of family law and poverty. If Jacobus tenBroek revealed the duality of family law—protective for the middle class, punitive for the poor—and Tonya Brito charted the “welfarization” of family law, Kim asks us to see the reverse: a familialization of welfare policy, where the state retreats by delegating its duties to kin networks, placing family responsibility where public support should be. This insight connects doctrinal observation to institutional critique: what appears as empowerment at the micro level may signal withdrawal at the macro level.
From this normative analysis, Kim articulates a concrete reform horizon, even as the article remains primarily descriptive. She suggests narrowing the circumstances in which functional claims can be used in neglect cases, particularly where the parent has not been found unfit and has not received adequate services. To address risks, she proposes tying functional recognition used to close child-protection files to obligations for reunification supports, kinship subsidies, and meaningful judicial oversight. She further urges the creation of exit ramps—such as time-limited orders and periodic review—to prevent administrative closure from resulting in long-term parental loss and to ensure that improvements in parental capacity are taken seriously.
In this important contribution, Kim reminds us that the future of family justice depends not only on recognizing care, but on deciding whose care counts and on what terms.
Sep 17, 2025 Aníbal Rosario-Lebrón
Clare Ryan,
The Public/Private Home,
110 Cornell L. Rev. __ (forthcoming 2025), available at
SSRN (August 10, 2024).
This past June, when the Supreme Court delivered its opinions in United States v. Skrmetti and Mahmoud v. Taylor, it entered a new era in the weaponization of rights against sex, sexual orientation, and gender identity and expression (SSOGIE) equality. In this new era, the Court is advancing its anti-equality agenda by co-opting parental rights to the detriment of minors’ wellbeing and autonomy. It did so by ruling on parental rights in Mahmoud while pointedly refusing to engage them in Skrmetti, thereby reinforcing the law’s entrenched treatment of children as property. To understand how this new weaponization emerged, how its advancement can be halted, and how children’s rights can be advanced, it is indispensable to examine the theoretical foundations and shifts in the doctrine of parental rights that have led to its current form. Clare Ryan’s The Public/Private Home precisely provides such a framework.
Ryan’s forthcoming piece in the Cornell Law Review calls for reexamining the concept of family autonomy and privacy and its derivative doctrine of parental rights in light of the profound transformations in contemporary family life. She argues that the assumptions underpinning the public/private divide that shaped these doctrines no longer hold as they do not reflect lived reality. Ryan highlights that the law’s assumptions regarding where the provision of public goods falls on the family/public dichotomy have been subverted by family practices that have moved many activities, such as work, schooling, and healthcare, into what the law still considers the private sphere and vice versa. For instance, on the other side of the spectrum, through social media platforms, homes have become sites of intense surveillance, data collection, and profit by making private life more visible to the public, including the state. Such transformations, Ryan contends, have profound implications for the doctrine of parental rights.
To prove her point, she establishes how the construct of private home life has informed courts’ rationales about family formation and family autonomy. That framework has inevitably led to a conception of parental rights tethered to the private home and akin to a property rights regime in which parents exercise property-like control over children.
Ryan identifies three core doctrinal assumptions of family autonomy and privacy. The first is that the home is a sanctuary protected from external scrutiny. The second is that home is distinct from the market, where care and domestic labor occur outside market regulation, and where no work activity happens. And the last one is that public goods, such as education and health services, are delivered externally, not inside the home. She argues that these premises no longer reflect lived reality, undermining legal coherence and perpetuating and exacerbating children’s inequality and subordination.
Ryan discusses how remote schooling, telemedicine, work-from-home arrangements, and the momfluencer industry have blurred the boundaries between private and public spheres in the home, making the home simultaneously more public and private than ever before. She then critiques, with particular focus on the parent–child legal relationship, how this dual shift has created doctrinal misfits that contribute to systemic inequality and unjust legal outcomes.
Although Ryan concerns herself in the article with harms such as the lack of surveillance from doctors or teachers on children’s possible abuse or neglect because of remote schooling and telemedicine or with child exploitation in social media platforms, I could not stop thinking about how her theory could help explain the Court’s current framework of parental rights and its weaponization in Mahmoud and Skrmetti. In Mahmoud, the Court held that the government’s establishment of an inclusive LGBTQ curriculum violates the free exercise clause, as it substantially interferes with parents’ ability to raise their children in accordance with their religious beliefs, even if alternatives like private or homeschooling exist. Although framed as a general free exercise issue, the decision hinges on parental rights and not on the children’s own free exercise rights or the right to receive an inclusive education. It does not even acknowledge that minors possess such rights. Similarly, the Court dismisses the state’s interest in promoting equality through public education, subordinating it entirely to parental authority.
These outcomes favoring parental rights over recognizing minors as rightholders and subordinating the state’s interests in promoting an egalitarian society to parental will can easily be explained by the phenomenon Ryan aptly points out in her article. By conceptually privatizing the public good of education based on the family home experience of homeschooling or remote education, the Court increasingly augments the scope of parental rights, effectively forcing the state to abdicate its responsibility to ensure equal treatment and inclusive education for all citizens.
This phenomenon also applies to the Court’s decision in Skrmetti denying review to Tennessee’s ban on gender affirming care for minors based on parental rights, but granting certiorari on equal protection grounds. The Court declined to review the parental rights argument raised by the transgender minors, their parents, and their doctor because otherwise it would have been forced to veer from its anti-equality agenda. If the Court had reviewed the rights of parents to choose appropriate medical care for their children, any consistent application of its parental rights doctrine would have demanded that such a right supersede the scientifically unsubstantiated interest of the state in preventing gender affirming care for minors. In a world where the Court privatizes traditionally-defined public goods such as education, then surely health decisions, in a country with no positive constitutional obligation to provide sanitary services, must logically fall under the umbrella of parental rights. Thus, contrary to the actual Court’s decision, a consistent application of the Court’s parental rights doctrine would have resulted in a victory for parents seeking gender affirming care for their children, as the state’s interest would have had to yield to parental will.
Yet, this positive result would have been at the expense of recognizing children’s autonomy. Even though the outcome would have been for minors to continue with their gender affirming care as they desired, their choice in doing so would have been contingent on their parents’ will. Such a rationale reifies the property-like control of parents over children.
This reluctance or incapacity within the legal system to affirm children’s autonomy, even when advancing egalitarian agendas, underscores the need for a conceptual shift, one that Ryan compellingly illuminates. Based on her discussion on the transformation of the public/private home, Ryan proposes to untether parental rights from the private home and reframe them not as entitlements tied to the children and the location of the activity, but as responsibilities to protect a child’s wellbeing regardless of whether activities occur inside or outside the home.
Ryan’s theoretical intervention adds a compelling new voice to the growing chorus advocating for minors’ autonomy. Her work enriches the scholarly movement to bring children out from under parental control and into public and political life advanced by scholars such as Anne Dailey, Catherine Smith, and Laura A. Rosenbury, and reflected in litigation efforts like Genesis v. EPA. Ryan offers a promising path to reducing disparities and challenging the entrenched subordination of children in the legal family structure. As she notes, realizing this vision will require substantial future practical work. I am eager to contribute to that effort and to incorporate her insights into my forthcoming scholarship on minors’ rights to bodily autonomy and self-determination.
Aug 7, 2025 Rachel Rebouché
Yvonne Lindgren & Michelle Oberman,
Recalibrating Risk Under Dobbs, available at
SSRN (November 5, 2024).
Readers familiar with the popular South Korean television program, Squid Game, will appreciate the Jot title’s reference to a child’s game turned into a fictional life-or-death contest. When a light is green, players are free to advance across a field toward a finish line. When the light is red, players must freeze in their positions, as one movement leads to “elimination” from the game.
In their important and novel article, Professors Lindgren and Oberman deploy the terms “green light” and “red light” to help describe physician decision-making with respect to pregnant patients in states that ban almost all abortion – green light decisions are those that are legal; red light decisions are those that would fall afoul of the law. The consequences of acting in “the red,” according to ban states’ laws, can include prison sentences, hefty fines, and loss of professional license. Though not death, as in the program Squid Game, contravening an abortion ban can have severe consequences.
Those potential consequences, in combination with vague statutory language, have triggered a retreat from the previous standard of care when treating pregnant patients. Lindgren and Oberman focus their attention on what they term “yellow light cases” – the care doctors routinely provided to pregnant patients prior to Dobbs, particularly in managing pregnancy complications, that seems risky today because its legality can be difficult to ascertain. This retreat has led to patients’ injuries and deaths that have been the subject of headlines but have not resulted in either patient compensation or provider punishment.
Abortion opponents have argued that the language of bans is clear and that the problem is that doctors refuse to provide care, hiding behind claims of legal ambiguity. Instead of revising the bans, some contend that doctors should be sued for medical malpractice. Tort theory suggests that medical malpractice lawsuits can play a public law function by clarifying the vagueness of law, or shrinking the yellow zone, when lawmakers will not intervene. Can the problem of delayed and denied care be remedied by suing doctors? Recalibrating Risk asks and answers that question with a decisive no. The authors explain that malpractice lawsuits will not solve the problems of delayed or denied care and may exacerbate patients’ ability to gain access to quality, appropriate care. Instead, they suggest strategies that depend on hospitals, health systems, and professional associations to guide providers on providing evidence-based, ethical care.
In this vein, Recalibrating Risk is the first law review article to ask how medical malpractice might address yellow light decisions about abortion care when physician action is likely legal but not clearly so. As the authors note, this inquiry is made against the backdrop of the profession’s aversion to liability, which manifests in many contexts as “defensive” medicine (or providing more care than necessary to avoid liability). In the current abortion context, doctors practice “hesitant” medicine, providing less care than may be optimal to avoid civil liability as well as criminal punishment. Such an aversion is heightened for the healthcare providers, like ER doctors, who do not typically have the same experience and training as obstetricians in abortion or miscarriage care.
The authors make clear that apprehension and hesitation are warranted. Medical professionals are under stress, particularly in ban states, and responding to risk under current abortion laws will have profound downstream effects. Since Dobbs, there have been decreases in applications to residency programs in ban states, as well as movement of physicians from ban states or from the field. I wrote about the changes in medical training, specifically residency training for OB/GYNs and family medicine providers, and how educational shifts post Dobbs could shape the future of care. It may be too soon to understand the connection between residency education provided today, providers’ navigation of abortion bans exceptions, and what that might mean for care deserts, provider liability, and the standard of care. Despite this uncertainty, the concern remains that there may not only be hesitation to deliver abortion care but also no one in a hospital (not to mention in an ER) who is trained to do so.
The article thus seeks to explain whether law and policy, including medical malpractice actions, can reduce the risk of making yellow light decisions. For one, the authors assess the likelihood of exposure to civil or criminal liability. They conclude that yellow light cases would not be the kind lawyers or prosecutors pursue, potentially even in the most-restrictive abortion states. On the civil side, the combination of tort reform caps on damages and the nature of contingency fees mean that few lawyers will take cases against doctors for making legally ambiguous, but likely justifiable, decisions. Litigation is too costly, and the payoff is too small. On the criminal side, prosecutors may be unlikely to pursue a case given that judges and juries will be sympathetic to the mistaken, but not negligent or willfully unlawful, doctor. The authors assert that prosecutions of physicians who perform abortions when a pregnant patient’s life or health is in danger, for instance, “would be legal longshots, and might also be controversial and politically unwise.” (P. 5.)
That said, the possibility that healthcare professionals will not face punishment may not be enough to change the hesitant practice of medicine. For Lindgren and Oberman, change could be the responsibility of healthcare institutions and professional organizations, issuing more guidance or information, as well as the result of litigation against those institutions but not healthcare providers. The authors offer examples (and counterexamples) of when guidance empowers health care professionals to determine what is lawful even if potentially unclear. For example, relaying information to patients about seeking legal abortions out of state is not a yellow-light situation; often, healthcare professionals perceive that law makes such disclosure risky when it in fact does not. (P. 12.) A few issues, however, remain for future thought.
One possibility is that institutions will issue protocols and guidance that constrict rather than expand the care offered. Many abortion bans, as written, do not match the medically accepted standard of care, as has been apparent in emergency situations. And here is a dilemma of the paper. If protocols and guidance are to track the current standard of care, then that advice might run afoul of state law. Though physicians are bound by both ethical or legal duties, the sanctions that result differ markedly, with violation of the law potentially resulting in fines or jail time. Because of these consequences, there is reason to believe that were hospitals and healthcare entities to issue guidance, they would draw lines to increase red light, not green light, decision-making to minimize the chance of legal liability.
The end goal may not be just “uniformity and predictability,” (P. 36) but to change what matters to the organizations issuing guidance. To that end, the authors contemplate corporate negligence claims against healthcare institutions or new emergency adjudicatory processes. Liability for the failure to meet an institution’s duty to provide adequate care or exposure to court hearings to determine legality on an expedited basis (like a judicial bypass hearing for minors seeking abortions without parental involvement) might be two avenues. But they will, of course, incur their own costs, which could be passed to patients either directly or indirectly.
I find promise in the authors’ description of “quiet systems,” such as helplines and networks working on the ground, to clarify an evidence-based standard of care and to reassure providers of best practices. (P. 43.) As the authors convincingly show, although the medical malpractice system will not disappear, it is a mistake to believe it will fill the void of legislative reform and institutional accountability. But, to meet this moment, diverse levers of influence need to be pulled both to shape post-Dobbs practice as well as providers’ perception of and tolerance for risk.
Jul 14, 2025 Dara E. Purvis
In June of 2025, Secretary of Health and Human Services Robert F. Kennedy, Jr. told a legislative committee that his agency would be working towards a goal of every American wearing a device tracking information about the wearer’s body and health within four years.
One assumption underlying RFK Jr.’s campaign is that more information is always helpful – but what if the health information you learn warns of elevated risks that you can do nothing to prevent? Even further, what if you never asked for the information at all? In Poked, Prodded, and Privacy: Parents, Children, and Pediatric Genetic Testing, Allison M. Whelan incisively explores these questions in the context of genetic testing, explaining multiple ways that the privacy rights of children can be violated if their parents consent to genetic testing on their behalf. Professor Whelan’s analysis also illuminates broader dilemmas about the rights of children and authority of parents playing out in multiple troubling ways, including denials of gender affirming care to transgender youth.
It has never been easier to get medical information about yourself, whether it is through the “wearables” HHS will apparently be advertising or genetic testing that can help to identify future health risks. Professor Whelan begins her article with a well-known example of genetic testing that can alert the patient to future risks they may be able to avoid: Angelina Jolie’s genetic testing that revealed a genetic mutation indicating an extremely high risk that she would someday develop breast or ovarian cancer. In response, over the next few years Jolie had a preventative double mastectomy and hysterectomy. Jolie, who had already lost her mother and other close female relatives to breast and ovarian cancer, understood the significance of her test results and was able to take action in response.
Professor Whelan focuses, however, on patients in a very different position: children who undergo pediatric predisposition genetic testing (PPGT) revealing information that they cannot act on in childhood. Such testing indicates one of two things. First, a child has a genetic mutation that means they are certain to or are at a much higher risk of developing an adult-onset disease with no means of prevention or treatment. Professor Whelan uses Huntington’s disease as an example: genetic testing reveals whether a person carries the single genetic abnormality that causes the disease. There is currently no treatment that prevents or slows the progression of Huntington’s, only some treatment that may lessen the severity of symptoms once they appear. Second, PPGT could reveal a risk (but not a certainty) that the patient may develop an adult-onset disease that has treatment options, such as Jolie’s greater cancer risk. Parents consenting to such testing may hope that having information early means that their child will take preventative measures like Jolie’s mastectomy very early in adulthood, hope that other health choices in childhood might delay the onset of a disease, or simply believe that knowing risks earlier would allow their child to mentally and emotionally prepare for future health changes. But the information drawn from PPGT that Professor Whelan focuses on does not indicate any medical treatments or specific behaviors that the parents would direct while their child was still a minor.
The center of Professor Whelan’s concern is the pediatric aspect. Although it is routine for parents to consent to medical care for children, PPGT has extremely limited utility and significant risk, particularly to the privacy rights of the child, including rights against compelled disclosure of private information, unreasonable search and seizure, and bodily autonomy. The right of parents to direct the care of children has been vindicated in a number of Supreme Court cases, as Professor Whelan traces. Furthermore, she highlights that particularly in early cases, the Court largely dismissed any rights held by the child in favor of focusing on the conflict between the parent’s authority and the state’s justification in intervening on behalf of the child. In a few limited contexts, however, the Court has at least hinted at the child’s interests. In Elk Grove Unified School District v. Newdow, for example, the Supreme Court noted that a student whose father objected to her reciting the Pledge of Allegiance in school had “constitutionally protectible interests” that might be in conflict with the interests of her father.
Professor Whelan combines this implication of at least some rights held by the child with the Court’s reasoning in Cruzan v. Missouri Department of Health. There, the patient was an adult, but one incapable of directing her own medical care because she was in a persistent vegetative state. The Supreme Court affirmed the Missouri State Supreme Court’s decision refusing to allow her parents to remove life-sustaining measures, but not because no decision-makers on behalf of an incapacitated person could ever withhold treatment. Rather, the Court held that even assuming that the liberty right includes a decision to decline life-sustaining medical treatment, Missouri’s statute requiring clear and convincing evidence that the incapacitated patient would make such a decision if they were competent to do so did not violate the liberty right. Professor Whelan argues that this perspective has a corollary in the context of PPGT – where the Cruzan Court looked backward to ask what the previously-expressed preferences of the incapacitated person were, any use of PPGT should look forward to ask whether the parents can know whether their child would consent to such genetic testing in the future. Just as the Cruzan court concluded that the patient’s parents could not consent to removing life support because they weren’t sure enough of the patient’s preferences, Professor Whelan concludes that because parents cannot be sure of their child’s future choices around genetic predisposition testing, they should not be able to consent to PPGT.
In the rest of the article, Professor Whelan builds out how a right to future privacy could help guide such a forward-looking decision. Because minors themselves “should possess the primary right to control (1) whether they receive PPGT, (2) whether and how they act on the results, and (3) whether they share the results and with whom,” (P. 1270) any decision to undergo PPGT should not be made by a child’s parents. She argues that the harm of knowing and sharing the results of PPGT cannot be undone – once disclosed, the bell of test results cannot be un-rung. By contrast, because no actions can or should be immediately taken in response to PPGT results, no utility or urgency outweighs the harms to informational and decisional privacy. Given this imbalance, Professor Whelan argues that consent to PPGT should only be given by the child themselves once they are capable of directing their own medical care. Her analysis is admirably nuanced, acknowledging the potential misuses of such a right to future privacy and how the balancing would shift if further medical innovations indicate that preventative steps could be taken during childhood.
Professor Whelan intends her article to lay conceptual groundwork and begin, rather than end, discussion. It is this sparking and reframing of debates in other contexts that may be most valuable – PPGT, while a fascinating jumping-off point for her normative arguments, is, as she acknowledges, a moving target as medicine and technology develop and make such tests more available and more comprehensive in their results. Her articulation of the right to future privacy, however, is useful in a variety of scenarios in which a child’s interests potentially diverge from their parents as well as their state government. Professor Whelan uses the example of gender affirming care for transgender children in a few places in the article to illustrate how current law frames medical care through a lens of parent, child, and state as potential decisionmakers who sometimes come into conflict, a subject I have previously written about. We share a concern for the absence of claims brought squarely on behalf of the children, rather than their parents or doctors. The right to future privacy can be extended further than Professor Whelan’s discussions within this article, moreover, to help illuminate a particular harm of statutes that deny gender affirming care, particularly the denial of puberty blockers: the privacy of that child later in life.
It is not the goal of every transgender and nonbinary person to “pass” as a cisgender person, nor should it be. But it is the goal of some transgender people that their physical body express their gender identity, and puberty blockers make that goal more attainable. The impact goes beyond the copious evidence that trans youth who have access to puberty blockers have better mental health outcomes, as well as the greater risks of harassment and violence to which trans people (particularly women of color) are subjected. Trans children know what puberty blockers are, know what they do, and know that if denied that care, their bodies will undergo permanent changes during puberty that they do not want. As Leelah Alcorn, a transgender girl who tragically died by suicide in 2015, wrote in a Tumblr post scheduled to go online after her death, “The longer you wait, the harder it is to transition. I felt hopeless, that I was just going to look like a man in drag for the rest of my life.” Denial of puberty blockers is a harm that transgender youth may not be able to remedy even if they are able to access gender affirming care after they are adults.
The result, as Leelah Alcorn described it, is a worry that their body will never represent their gender identity. And growing up in the current political climate, it is natural that transgender youth would view public identification of themselves as trans as negative, even dangerous. The harm of denying gender affirming care thus includes a dimension of Professor Whelan’s right to future privacy: a right to choose whether or not to disclose one’s transgender identity in the future.
This brief review obviously only scratches the surface of one implication of Professor Whelan’s article, but demonstrates the rich analysis that her groundwork supports. Not only does she educate the reader about PPGT specifically, but her conceptual work explaining the right to future privacy is one that could help inform discussion of children’s rights at a time that novel approaches are particularly needed.
Cite as: Dara E. Purvis,
The Right to Children’s Future Privacy, JOTWELL
(July 14, 2025) (reviewing Allison M. Whelan,
Poked, Prodded, and Privacy: Parents, Children, and Pediatric Genetic Testing, 109
Iowa L. Rev. 1219 (2024)),
https://family.jotwell.com/the-right-to-childrens-future-privacy/.
Jun 6, 2025 Naomi R. Cahn
Shanta Trivedi,
The Hidden Pain of Family Policing, available at
SSRN. (February 6, 2024).
In one of my first jobs after law school, I worked in a legal services office, representing parents who had been accused of abuse and neglect. Throughout my time, I witnessed their struggle to navigate the complexities of legal proceedings, the inability of the public welfare system to provide the requisite support to the entire family, the pain that my clients experienced in losing their children, and the overall trauma inflicted on parents by a system that claimed to protect their children.
When I read Shanta Trivedi’s The Hidden Pain of Family Policing, I found it to be a powerful intervention in ongoing conversations about, and critiques of, family regulation, justice, and systemic reform precisely because of the article’s focus on parents. Others have argued that, as currently structured, the child welfare system (or what is now frequently labelled the “family policing system”) functions less as a protector of children and more as a carceral technique for surveillance and separation of marginalized families. Trivedi observes that the system relies on an overly simplistic demonization of parents. She calls for a radical rethinking of this system to change attitudes towards parents, emphasizing community-based support, the importance of meeting basic material needs for families, and the adoption of alternative perspectives, including transformative justice and abolition. (P. 51.) Trivedi achieves the article’s goal to “comprehensively examine the wide-ranging effects that family policing intervention can have” by examining “the behavioral, emotional, mental, physical, and social health of parents.” (P. 7.)
At the heart of the article is a critical and often overlooked insight: the family policing system, while purportedly designed to protect children, inflicts profound and lasting harm not just on the very families it targets but specifically on parents. Trivedi uses the term “hidden pain” to describe the psychological, emotional, physical, and social consequences experienced by parents whose lives are disrupted, and often devastated, by state intervention that is justified as protecting their children. These consequences—ranging from mental health deterioration and emotional trauma to stigma, housing instability, and loss of employment—are rarely acknowledged in public discourse or legal proceedings.
The article is nicely organized around this central theme. Part I documents this otherwise-hidden pain, showing the impact on parents from state surveillance of their families. Part II explores the potential explanations for the comparative lack of scholarly focus on parents, suggesting that one reason is “because of who society perceives them to be,” while another is because the child welfare system is focused on protecting children, not their parents. (P. 32.) It discusses – and then undermines – the stereotypes about such parents. And it shows the ironic nature of the conflict between “the idea that children need to be saved from their parents” and the jurisprudential deference typically given to parental decisionmaking. (P. 47) That savior mentality, however, means that children are removed not necessarily because they are unsafe but because state officials fear harm to the children, even though that means “parents are left to suffer as a result.” (P. 49.)
In this Part, Trivedi is particularly effective in demonstrating how this binary conception of “good” versus “bad” parents serves to rationalize the system. Drawing from both case law and anecdotal accounts, she argues that this reductive framing allows the law to ignore or dismiss the suffering of parents, especially those who are low-income, Black, Indigenous, or otherwise marginalized. These parents are often presumed unfit not because of specific harm they have caused, but because they are burdened by “additional stereotypes in a world obsessed with white, upper, middle-class notions of parenting.” (P. 32.)
What sets this article apart is not just its critical review of the harms to parents, but also the humanity which Trivedi brings to the topic. Trivedi forefronts the voices of impacted parents, using stories collected from a variety of sources to highlight the structural violence of the system. For example, she quotes one mother who wonders, “‘Am I still a parent. . . . People who don’t know the situation are like, ‘Have you got any children? Sometimes I choose to say no . . . .’” (P. 18.) Another ponders how to move forward when “‘[her] whole life has been about raising these kids and being there for my kids.’” (Id.) These narratives are not presented as isolated incidents, but as representative of a broader, patterned injustice perpetuated by a system that surveils and punishes rather than supports and nurtures. The inclusion of these personal accounts bridges the gap between academic discourse and lived experience.
In the final part of the article, Trivedi explains that to reduce the overall harm of the family policing system requires not just policy changes that recognize the injuries that the system inflicts on parents (as well as children) but also that rewrite the dominant legal and cultural narratives around parenting, state surveillance, and the meaning of child welfare. Her proposals include limiting unnecessary investigations by replacing mandated reporting with mandatory supportive measures for parents and children (P. 55), recognizing the relationship between poverty and neglect, reducing family separations, enhancing procedural protections for parents, and investing in community-based support systems that address poverty and structural inequality rather than punishing it. She argues convincingly that these reforms are not only legally and ethically necessary, but also essential to restoring trust and justice in communities that have long been over-surveilled. In centering parents’ voices, the article provides an alternative perspective on family protection and emphasizes the real-world impact that policy decisions seemingly focused on children also have on parents.
Ultimately, The Hidden Pain of Family Policing challenges legal professionals, policymakers, and scholars to rethink how we protect children and support families by putting the parent back into the family protection system. To accomplish this goal, Trivedi emphasizes the need for a paradigm shift away from a carceral mindset and towards a narrative that does not rely on dismissive stereotypes about parents but instead respects their autonomy and dignity. Trivedi argues that a narrative change could affect the approaches of workers within the system, lawyers, and judges. Appreciation of context could help judges deciding whether a parent has fulfilled the elements of a reunification plan to contextualize “the effects of separation on a parent that may have hindered their ability to comply.” (P. 65.)
To be sure, the article might have offered even more specificity about the pragmatic and political difficulties of changing the narratives and advocating for consideration of parental interests. But by showing how foregrounding the interests and vulnerabilities of parents can redirect child protection, Trivedi provides a critically important perspective on fundamental flaws in the existing system and opens up space for a more holistic and just approach to family well-being.
May 8, 2025 Albertina Antognini
Laura Portuondo,
Gendered Liberty, 113
Geo. L. J. __ (forthcoming), available at
SSRN (Mar. 11, 2024).
The family law canon is in flux. Much of the conversation has rightly focused on Dobbs v. Jackson Women’s Health Org., 597 U.S. 215 (2022), which narrowed the scope of substantive due process to exclude the right to obtain an abortion. But there is also Fulton v. City of Philadelphia, 593 U.S. 522 (2021), where the Supreme Court found that the city’s decision to terminate its contract with a religious agency for not certifying same-sex parents as foster parents violated the agency’s free exercise rights. And 303 Creative v. Elenis, 600 U.S. 570 (2023), which interpreted the First Amendment’s freedom of expression to protect the religious beliefs of a website designer who refused to create wedding websites for same-sex couples, overriding a state public accommodations law in the process.
These various cases addressing different clauses of the Constitution are broadly united insofar as they portend the Court’s conservative turn in family law and beyond. Yet Laura Portuondo’s forthcoming piece, Gendered Liberty, shows that these cases are more than fellow ideological travelers—rather, they reflect the Supreme Court’s specific and singular understanding of gender. What Dobbs, Fulton, 303 Creative, and others do, is “consistently ensure protections for conduct that enforces traditional gender norms and actively undermine statutory conduct that resists them.” (P. 4.)
It has been obvious for some time now that the Court is expanding First Amendment protections for free exercise and free speech; it is also pulling back from a more robust interpretation of the Fourteenth Amendment. Portuondo’s novel claim, and core contribution, is to argue that this expansion and contraction are related: “[t]hese doctrines work together to affirmatively and artificially subordinate the autonomy and self-determination of those who would defy gender stereotypes to that of those who wish to enforce those stereotypes.” (P. 7.) Thus, the Court’s interpretation of the First Amendment enforces gender conformity by providing protection to those who believe in traditional gender norms, while its interpretation of the Fourteenth Amendment denies constitutional protection to those who engage in gender-nonconforming conduct. Moreover, these doctrines work in conjunction to erase gender altogether, “to launder controversial judgments about the value of gender conformity into seemingly neutral narratives about constitutional liberty.” (P. 7.)
Portuondo offers up the notion of “gendered conduct,” or “conduct linked to a person’s gender identity” (P. 6), which the Court mostly fails to protect, as a parallel to conscientious conduct, or “conduct linked to a person’s religious or moral identity” (P. 9), which the Court zealously safeguards. This direct comparison helps to emphasize the extent of the Supreme Court’s differential treatment. So what exactly constitutes gendered conduct? Portuondo defines it by reference to regulations that “enforce social stereotypes about people . . . with a particular gender identity” or that “disparately harm people . . . with a particular gender identity.” (P. 6.) Gendered conduct can therefore include “pregnancy, abortion, same-sex intimacy, motherhood, gender transition, or something else.” (P. 6.)
By focusing on conduct, Portuondo effectively inures herself to criticism that her argument essentializes gender, or presumes that certain characteristics are innate or inherent to any gender. She understands gender identity to gain meaning from performance and to depend on socially sanctioned scripts, or their subversion, for significance. Throughout her piece, Portuondo calls on pregnancy as paradigmatic of gendered conduct. It is a generative example in more ways than one. Pregnancy is a physiological process, which easily lends itself to biological essentialist arguments that equate pregnancy with gender, or that treat pregnancy as a real difference that warrants differential treatment. The Court in Muller v. Oregon, 208 U.S. 412, 421 (1908), does both, relying on “matters of general knowledge” to reason that “woman’s physical structure and performance of maternal functions place her at a disadvantage in the struggle for subsistence.”
Pregnancy, however, is not so straightforward. It carries varied meanings depending on whether it is performed, how, and by whom. As memoirist and cultural critic Maggie Nelson has submitted: “How can an experience so profoundly strange and wild and transformative also symbolize or enact the ultimate conformity?” Is there not “something inherently queer about pregnancy itself, insofar as it profoundly alters one’s ‘normal’ state, and occasions a radical intimacy with—and radical alienation from—one’s body?” What matters to Portuondo is identifying the ways that law limits who gets to choose pregnancy and under what conditions. It predictably fails to protect, or even to register, inter alia, white women who seek to end their pregnancies, transgender men who are pregnant, black women who want to be mothers, or anyone who inhabits more than one of these identities. (Pp. 33-34.) In Muller, it was not pregnancy itself, but the Court’s assumption that all women were or would become pregnant that made it so that they were “at a disadvantage in the struggle for subsistence”—by upholding a state law limiting their ability to work on the same terms as men.
Because Portuondo delegates the definition of gendered conduct to external sources of law and social meaning, she has to make a case for how such conduct is also important to one’s internal, subjective sense of self. (P. 38.) Portuondo argues that protecting gendered conduct—like the Court currently protects conscientious conduct—would promote individual liberty for everyone, especially for those with marginalized identities. (P. 39.) The payoff of setting up this tight analogy is that it compellingly shows how the principles of liberty and autonomy the Court embraces for conscientious conduct are also at stake for gendered conduct. Portuondo details the many ways the Court has strengthened its support of conscientious conduct by, for instance, holding laws unconstitutional that “devalue” religion (instead of engaging in a discriminatory purpose determination) (P. 13), or finding that such laws automatically fail under a “strictest scrutiny” standard. (P. 16.) Adopting this more expansive read would mean that laws that “devalue” the interests of individuals with a given gender identity, as laws that restrict abortion do, would also be unconstitutional. (Pp. 35-36.) That the Court fails to reason in its Fourteenth Amendment decisions as it does in its First Amendment opinions is that much more egregious.
I am curious, however, to what extent Portuondo’s argument that gendered conduct merits constitutional recognition depends on conscientious conduct being granted such sweeping immunity. Do we need to accept the latter as is, in order to acknowledge the former? Or can criticisms of the Court’s First Amendment jurisprudence coexist with Portuondo’s proffers to shore up the Fourteenth Amendment by relying on it as a template? These questions might just be the inevitable result of a project that both critiques current First Amendment jurisprudence and relies on it as a potential alternative framework of analysis.
Portuondo’s aim to render visible—and legible under the Supreme Court’s own reasoning—the ways that liberty is implicated for gender-nonconforming individuals is crucial, even if “the Supreme Court may be unwilling to listen.” (P. 55.) Although Portuondo’s vision of the Fourteenth Amendment might never materialize, she has articulated exactly why—because of the Court’s one-sided protection of traditional gender norms. Her piece ably shows that this conclusion is anything but natural, or neutral. What the Supreme Court has fashioned is a “gendered liberty” which “recognizes the enforcement of gender norms as a fundamental freedom and denies that defiance of such gender norms has anything to do with freedom at all.” (P. 53.) In reading gender back into the Court’s opinions, Portuondo’s article shows how the law actively enforces a contestable yet consistent definition of liberty—by limiting who gets to claim it.
Cite as: Albertina Antognini,
Whose Liberty?, JOTWELL
(May 8, 2025) (reviewing Laura Portuondo,
Gendered Liberty, 113
Geo. L. J. __ (forthcoming), available at SSRN (Mar. 11, 2024)),
https://family.jotwell.com/whose-liberty/.
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.
