ADF Alliance Alert

Marriage & Family

The Case for the Genetic Parent: Stanley, Quilloin, Caban, Lehr, and Michael H. Revisited
Anthony Miller, 53 Loyola Law Review, New Orleans 395 (2007) SSRN

Does a genetic parent have right to exercise the fundamental rights which the United States Constitution affords parents? If a lesbian couple has a child with one woman donating the ova, which is artificially inseminated and implanted in the other woman, is the donor woman a mother under the Constitution? If sometime in the future a heterosexual couple has a child through the process if in vitro fertilization and through the use of an artificial womb, would the woman and man be the child’s mother and father for constitutional purposes? While the United States Supreme Court has recognized that parents have many fundamental rights regarding their relationship with their children, the Court has never fully explored the issue of who qualifies as a child’s parent for constitutional purposes. The Court has explored this subject only in regard to the rights of unwed fathers. Four cases, Stanley v. Illinois, Quilloin v. Woolcott, Caban v. Mohamed, and Lehr v. Robertson established that a genetic father who has participated in his child’s upbringing both psychologically and financially, even though he was not married to the child’s mother, should be afforded parental rights. This rule, however, was rejected by the plurality opinion of Michael H. v. Gerald D. with the result that the four unwed father cases are often thought to be overruled. Not only are these cases still viable, but they also have greater applicability today simply because modern reproductive technology has created situations where they apply not only to men who are not unwed fathers but also to many women who have children using new technology. The rule of Stanley v. Illinois, Quilloin v. Woolcott, Caban v. Mohamed, and Lehr v. Robertson should be revisited and applied to all genetic parents who have participated in their child’s life, especially to women who are genetic parents but who have not given birth to their genetic children.

Tolerance and HIV
Andrew M. Francis and Hugo M. Mialon, Emory University (2008) SSRN

We empirically investigate the effect of attitudes toward gays on the spread of HIV in the United States. Using a state-level panel dataset spanning the late 1970s to the late 1990s, we find that tolerance for gays significantly decreases the HIV rate. We then investigate the causal mechanisms potentially underlying this relationship. We find evidence consistent with the theory that tolerant attitudes toward homosexuals cause low-risk men to enter the pool of homosexual partners, as well as cause sexually active men to substitute from underground, anonymous, and risky behaviors to open, socially mediated, and less risky behaviors, both of which lower the HIV rate. We consider several alternative hypotheses and conclude that they are unlikely to explain the findings. Our estimates imply that taking steps to promote tolerance may result in thousands of fewer HIV cases annually.

The Blurring of the Lines: Children and Bans on Interracial Unions and Same-Sex Marriages
Carlos A. Ball, Fordham Law Review (2008) SSRN

This Article explores how old arguments in favor of antimiscegenation laws and contemporary arguments in support of same-sex marriages rely on issues related to children to defend restrictions on who has access to the institution of marriage. In particular, the Article focuses on how concerns about children have been deployed to construct and reify essentialized and dualistic understandings of race (in the context of antimiscegenation laws) and of sex/gender (in the context of bans against same-sex marriage). In doing so, it traces the historical roots of antimiscegenation laws with a particular focus on children. The Article also discusses the ways in which states today use children-based arguments to defend the constitutionality of bans against same-sex marriage. The Article ends with a critique of recent state supreme court opinions that have upheld the constitutionality of those bans based on the contention that, for children, being raised by different-sex couples is optimal while being raised by same-sex couples is suboptimal.

Against Neutrality in the Legal Recognition of Intimate Relationships
Carlos A. Ball, Georgetown Journal of Gender and the Law (2008) SSRN

This Essay argues that it is proper and necessary for the State to take into account considerations of morality in deciding which intimate relationships to recognize. It contends that when the State makes distinctions among intimate relationships in order to recognize and support some (but not all) of them, it must make assessments regarding the value and goodness of those relationships. The Essay defends what it calls a Modified Liberal Position on the recognition by the State of intimate relationships, one that (like the Traditional Conservative Position) allows for the consideration of notions of morality, while calling (like the Traditional Liberal Position) for the legal recognition of same-sex relationships. In doing so, the Essay responds to some of the likely objections by liberals and progressives to the notion that the State should explicitly account for moral considerations in deciding which intimate relationships to recognize.

Sanctity of Life

Upholding the Ban on Partial Birth Abortion: Gonzales v. Carhart
Lian Skaf, 9 Rutgers Journal of Law & Religion 5 (2007)

On April 18, 2007, in Gonzalez v. Carhart, The United States Supreme Court upheld the Congressionally enacted Partial-Birth Abortion Ban Act on what has been termed partial-birth abortion. In the wake of landmark abortion cases such as Roe v. Wade and Planned Parenthood of Southeastern Pa. v. Casey, cases arose that dealt with the timing and procedures of abortion methods. The first major case to deal with the debated practice of second-semester abortion was Stenberg v. Carhart. Here, the Court held a Nebraska statute banning all partial-birth abortions unconstitutional because, by disallowing both dilation and evacuation (“D & E”) techniques and dilation and extraction and (“intact D & E”) techniques, it unduly burdened the right of abortion itself.

A direct response to Stenberg, the purpose of the Partial-Birth Abortion Ban Act was to limit second-semester abortion procedures by disallowing intact D & E abortions. When challenged in district court cases, the Attorney General was enjoined from enforcing the ban. These decisions were later affirmed in the Eighth Circuit and in the Ninth Circuit.

Maternal Health Policies in Transition: Poland and Kyrgyzstan, 1990-2006
Barbara Wejnert, et al. Buffalo Legal Studies Research Paper No. 2008-06 (2008) SSRN

Starting with the initiation of democratic and market economic transitions, unsupportive policies concerning women’s reproductive health were implemented in Kyrgyzstan and Poland in the period 1990-2006. These policies were expressed by a) political decisions limiting available funding to support medical practices protecting women’s reproductive health, b) diminishing or restricted dissemination of knowledge about family planning, and c) the implementation of new contraception and abortion policies. Could, then, these changes be perceived as a combat between democratic liberalism, cosmopolitanism and tolerance versus traditionalism, insularism and fundamentalism? We use analyses of policies concerning women’s reproductive and maternal health to manifest rivalry between economic crisis and the push towards modernity, and between traditionalism and liberalism. We demonstrate that the return to traditional gender roles and gender policies, and their practical application expressed in maternal health policies, illustrate cultural backlash towards diffusing Western liberalism in countries in political and economic transitions.

Abortion, Feticide and Fetal Abuse: Searching for Consistency
Julianna Frisch, William & Mary School of Law. SSRN

This paper explores the legal status or value of the fetus by focusing on several different areas of law: abortion law, feticide, and fetal abuse laws. At the same time, the paper seeks to find consistency between abortion law on one hand, and feticide and fetal abuse law on the other. Ultimately, the conclusion reached is that the laws can coexist. Abortion is legal because the Court balanced the state’s interest in potential life with a woman’s privacy rights and health. However, there is no countervailing interest to be balanced in the case of feticide as fetal abuse, as any interests on the part of the perpetrator do not have merit.

Superhuman: Biotechnology’s Emerging Impact on the Law
Marion Hilligan, et al, 24 T.M. Cooley L. Rev. 1 (2007)

Biotechnology in general and genetic engineering in particular will produce the dominant legal issues of the twenty-first century. Biotechnology will have a greater impact on the law than the information revolution of the twentieth century not simply because it implicates so deeply the full spectrum of human issues from personal health to familial and social relationships to national and world demographics-the subject of this Article’s Part I-but because biotechnology will also force a choice among distinct worldviews that many of us are not prepared to make-the subject of Part II. The emerging conflict between these worldviews is obvious in the competing legislation and legislative proposals currently challenging the technical knowledge and social foresight of foreign, federal, and state governments-the subject of Part III. Put another way, Part I surveys biotechnology’s present and potential impact on traditional socio-legal issues. Part II surveys the worldviews historically and currently influencing the law and shows how biotechnology forces a choice between those views. Part III surveys current biotechnology legislation as an indicator of the broad, general, and specific impact to come. The conclusion elaborates on the personal and jurisprudential challenges and opportunities biotechnology creates.

Bench & Bar

The Looming Collapse of Restrictions on Judicial Campaign Speech
Nat Stern, 38 Seton Hall L. Rev. 63(2008)

While a pessimistic forecast for judicial campaign restrictions is not novel, this Article examines their dim prospects from a variety of perspectives. Part I provides a brief overview of judicial elections and the evolution of campaign speech codes, the Court’s reasoning in White, and the decision’s aftermath. Part II characterizes White as one of a series of major decisions whose full implications have unfolded in phases. To support the thesis that White’s reach will far transcend the announce clause, this Part first argues that an expansive construction offers a more coherent explanation of the Court’s opinion than assuming leniency toward other restrictions. The pattern of lower court rulings confirms and reinforces this understanding of White. In addition, realistically considered, a hostile stance toward curbing judicial campaign expression appears more consistent with the ideological preferences of the Court’s majority. Finally, White resembles decisions in other areas in which an ultimately expansive doctrine was somewhat obscured by the specific setting in which it arose. Assuming this strict approach, Part III describes how specific restrictions on candidates’ speech and related activity can be invalidated. Part IV briefly surveys the likely landscape of an elected judiciary unhampered by enforceable campaign restrictions, and notes alternatives available to critics of politicized judicial races.

International

Law as Affiliation: "Foreign" Law, Democratic Federalism, and the Sovereigntism of the Nation-State
Judith Resnik, 6 Int’l J. Const. L. 33 (2008)

This essay explores the role that law plays in marking the identity of a nation-state and the concerns–which I gather under the term sovereigntism– that animate interest in dictating what position “foreign” law ought to play as a domestic resource in adjudication. In some countries such as the United States, opposition to “foreign” law has a long pedigree, exemplifying an exclusivist form of sovereigntism. In contrast, South Africa’s Constitution is also sovereigntist but inclusively so, directing its jurists–as an expression of that nation’s identity–to consider international law. After showing why exclusivist sovereigntism cannot succeed as a practice in barring law’s migration and how it is wrong as a theory of democracy, I commend engaging in important questions raised by sovereigntism: whether the import and export of law ought to be regulated by national law, what legal actors ought to be active in the trade in law, and how sovereigntism illuminates human aspirations to use law to make distinctive identities for nation-states.

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