Dissenting in the 1972 decision Stanley v. Illinois, Chief Justice Burger criticized the majority for suggesting that fathers and mothers were sometimes similarly situated when it came to nonmarital parenthood. “I believe that a State is fully justified in concluding, on the basis of common human experience, that the biological role of the mother in carrying and nursing an infant creates stronger bonds between her and the child than the bonds resulting from the male’s often casual encounter,” said Burger.1 “Centuries of human experience buttress this view.”2 On Burger’s account, differential legal treatment of mothers and fathers was constitutionally sound because it reflected an obvious biological reality: that women had stronger attachments to children because only women carried, birthed, and nursed them. No matter that in 1972, the percentage of women who breastfed infants had “reached its nadir [of] 22%.” For Burger, breastfeeding was not just central to motherhood, but a constitutionally agreeable justification for sex discrimination—against men.
In Unsexing Breastfeeding, Professor Naomi Schoenbaum takes on the “centuries” of “common human experience” that assumes that breastfeeding is (1) exclusively biological, and (2) exclusively female. Schoenbaum shows that social practices have changed in the five decades since Burger’s 1972 dissent, with more than 80% of infants breastfeeding as of 2017 (P. 145 n.38), and that the law remains as tethered today as it was then to the idea that breastfeeding is—and should be—a female-only activity. For example, the Patient Protection and Affordable Care Act requires covered employers to offer lactation support services and breastfeeding education to women but not to men (P. 173). Similarly, the Family and Medical Leave Act grants mothers but not fathers workplace leave to attend breastfeeding-related appointments (P. 177). Moreover, state and federal public accommodation laws grant women but not men the right to breastfeed in public (P. 179). Likewise, hortatory policies like that of Florida celebrate breastfeeding as “an important and basic act of nurture which must be encouraged in the interests of maternal and child health and family values.” (Fla. State. Ann. Sec. 383.015 (1993) (emphasis added)) (P. 242).
In addition to exposing the vast network of laws, regulations, and policies that presume that breastfeeding is women’s work, Unsexing Breastfeeding unpacks what that work actually entails. The word “breastfeeding” captures a situation that might seem obvious enough: the feeding of an infant or young child at someone’s breast. However, as Schoenbaum explains, breastfeeding is so much more. She says: “[S]uccessful breastfeeding depends on substantial investments in capital and expenditures of labor that are separate and apart from lactation” (Pp. 159-160); “insurance coverage for these products” (P. 161); self-educating on things like “the mechanics of breastfeeding” and “how to set up the breastpump and how to store breastmilk” (P. 162); transporting a baby to the lactating parent at work to be fed (P. 165); figuring out how to position the baby (P. 165); burping the baby; learning “important hunger cues” (P. 166); and supporting the lactating parent physically and emotionally (P. 166). Unsexing Breastfeeding conceptualizes breastfeeding much as property professors conceptualize property: as a bundle of activities rather than a single activity, a set of social relationships about things rather than a thing itself. In a prior article titled Unsexing Pregnancy, Schoenbaum and her co-author unbundled pregnancy into its biological and social components, challenging sex equality’s largely uninterrogated assumption that pregnancy is a physical condition unique to women. In Unsexing Breastfeeding, Schoenbaum extends her unbundling project to breastfeeding and to sex equality’s similarly uninterrogated assumptions about what breastfeeding labor involves—and who might be involved in it.
Unsexing Breastfeeding argues that the law of breastfeeding ought to be unsexed not just because breastfeeding itself isn’t (necessarily) sexed, but also because the sexed law of breastfeeding is failing so many constituencies. It is failing trans men and non-binary persons, some of whom can (and do) perform all aspects of breastfeeding, including lactation (P. 146). It is failing men, who are relegated to the status of “mere back-ups” (P. 145) when it comes to sustaining infants. It is failing women, who are burdened not just by the enormously time- (and energy-) consuming labor of breastfeeding, but by the gendered childcare expectations that breastfeeding sets into motion. How caregivers perform “from the start” (P. 190), says Schoenbaum, cements “sticky roles that are hard to reverse” (P. 145). Finally, the sexed law of breastfeeding is failing sex equality, which rejects sex stereotypes parading as biological rationalizations and which prohibits the “separate spheres” mentality that the sexed law of breastfeeding reflects and reproduces.
Like all good scholarship, Unsexing Breastfeeding inspires as many questions as it answers. One question is whether unsexing breastfeeding law is enough to unsex breastfeeding. If breastfeeding practices were unsexed, would men take advantage of them? Some studies suggest that many employed men in heterosexual relationships who can take parental leave upon the birth of a child, don’t, prompting commentators to argue that the United States should follow Norway and Sweden’s example of the “daddy quota,” that is, the policy of reserving a part of parental leave only for fathers. What else would have to happen outside the law for the unsexing project to unfold?
Another question is how unsexing the law of breastfeeding will help single women who aren’t partnered. As Schoenbaum reports, non-marital births account for a significant share of all births (P. 177). While not all unmarried women with children are unpartnered, many—25%—are. One asks: could breastfeeding equality (between women and men) stymie breastfeeding justice by folding support into the traditional, nuclear family rather than externalizing it onto the state or some other entity?
Finally, Schoenbaum criticizes state hortatory breastfeeding policies (like Florida’s) for focusing on the maternal/child relationship to the exclusion of the paternal/child relationship. But one wonders whether the state should be in the business of encouraging breastfeeding at all. Breastfeeding is incredibly hard work, as Schoenbaum powerfully demonstrates. Even if unsexing the law of breastfeeding makes breastfeeding—or, more aptly, keeping a child alive—easier for some people, it still doesn’t make it easy for any lactating person. What if people don’t want to breastfeed, or have a disability that prevents them from breastfeeding? Will the unsexing project box those people out by allowing the state to engage in breastfeeding preferentialism, so long as the state does so in a sex neutral way?
Unsexing Breastfeeding invites robust critical inquiry about these and other issues. But its intervention is broader still. Fifty years ago, Chief Justice Burger—in dissent—relied on the biological differences of pregnancy and breastfeeding to make the case for why sex discrimination was constitutionally permissible. In 2022, Justice Alito—writing for a Court majority—went further still, relying on the biological difference of pregnancy to reason that abortion classifications didn’t discriminate on the basis of sex at all. The regulation of a medical procedure that “only one sex can undergo,” said Alito, did not amount to sex-based state action under the Equal Protection Clause.3 Among other things, Dobbs represents the disturbing retrenchment of biologism and the logic of real differences in American law, which undergirds everything from anti-abortion advocacy to the tsunami of anti-trans legislation and sentiment in the United States. Unsexing Breastfeeding, which takes on a particularly stubborn manifestation of real differences, couldn’t come at a better time.
- 405 U.S. 645, 664 (1972) (Burger, C.J., dissenting) (emphasis added).
- Id.
- Dobbs v. Jackson Women’s Health Organization, 142 S. Ct. 2228, 2245-46 (2022).
