Take Care is pleased to host a symposium on Reproductive Rights and Justice Stories—an important new book edited by Professors Melissa Murray, Katherine Shaw, and Reva B. Siegel. Contributors will relate themes, stories, and case histories in the book to recent developments in American life and law.
Although Reproductive Rights and Justice Stories unfolds diachronically, charting an historical trajectory of reproductive regulation in the United States over a five-decade period, its opening and closing stories of legal, political, and social change reflect a chiastic structure. The first essay, Melissa Murray’s piece on the “criminal law antecedents” of Griswold v. Connecticut, centers on the 1965 Supreme Court landmark that facilitated the technology of non-procreative sex. See Griswold v. Connecticut, 381 U.S. 479 (1965). The last essay, Douglas NeJaime’s piece on the litigation history behind Brooke S.B. v. Elizabeth A.C.C., centers on the 2016 New York Court of Appeals’ landmark that could facilitate the technology of non-sexual procreation—enabling it to flourish even more than it already has. See Brooke S.B. v. Elizabeth A.C.C., 61 N.E.3d 488 (N.Y. 2016). The first essay opens with non-procreative sex and its effects on the law of abortion. The last essay concludes with non-sexual procreation and its effects on the law of parenthood.
This response closes the circle by considering how the technology of reproduction featured in NeJaime’s essay, much like the technology of contraception featured in Murray’s essay, might influence abortion regulation in the broadest sense of “regulation.” It does so in the spirit of Reproductive Rights and Justice Stories, which asks us to view reproductive rights and justice through a “capacious” lens that detects synergies between things that are often kept separate. The undertheorized synergy to which this response directs its attention is that which exists, or could exist, between alternative reproductive technologies (ARTs) and abortion, the former a method of facilitating pregnancy and the latter a method of preventing it.
Because of NeJaime’s masterful telling, the feedback loop that exists among ARTs, sexual orientation equality, and parentage is clear: ARTs facilitated same-sex parentage, which laid the groundwork for marriage equality in Obergefell v. Hodges. See Obergefell v. Hodges, 135 S. Ct. 1732 (2015). Marriage equality, in turn, “vindicated” same-sex parentage and paved the way for decisions like Brooke S.B., which protects even non-marital, non-biological parent-child bonds.
Inspired by the placement of NeJaime’s essay in a collection dedicated in significant (though of course not exclusive) part to stories about not procreating, this response asks: Might a similarly dynamic relationship exist between ARTs and reproductive rights, specifically, the abortion right? ARTs have advanced sexual orientation equality, but might they also advance the abortion right?
There are many ways to come at these questions, but this response focuses on one dimension of ART that could bear on the legal, social, and cultural environment surrounding abortion: ART’s power to disestablish the traditional ideas of maternity on which abortion law and discourse, even pro-choice law and discourse, rests.
Consider Roe v. Wade and Planned Parenthood of Southeastern Pennsylvania v. Casey, two pro-choicedecisions. There, the Court repeatedly referred to women seeking abortion as “mothers,” and conceptualized women’s medical needs in the abortion setting as needs relating to “maternal health.” See, e.g., Roe v. Wade, 410 U.S. 113, 159 (1973) (stating that “it is reasonable and appropriate for a State to decide that at some point in time another interest, that of the health of the mother or that of potential human life, becomes significantly involved”); Planned Parenthood of Southeastern Pennsylvania v. Casey, 505 U.S. 833, 839 (1992) (stating that “it cannot be claimed that the father’s interest in the fetus’ welfare is equal to the mother’s protected liberty”). More dramatically, Gonzales v. Carhart, which upheld the constitutionality of a law that criminalized a method of abortion that looked too much like “birth” (and that therefore rendered the pregnant woman uncomfortably “maternal”), rested its very holding on protecting “expectant mothers” and on respecting the “ultimate expression [of] a mother’s love for her child.” See Gonzales v. Carhart, 550 U.S. 124, 128 & 129 (2001). The same lexicon of maternity also appears in restrictive and punitive abortion laws, including, for instance, Texas’s recently proposed (but ultimately unsuccessful) bill that would have imposed the death penalty on the “mother[s]” of “unborn child[ren]” who seek abortions. See H.B. No. 896, Sect. 19.06.
Importantly, motherhood and abortion are not inherently incompatible—some women who seek abortion might very well consider themselves mothers for any number of reasons. The problem, though, is that the law affixes the maternal label on all pregnant women contemplating abortion, regardless of how they see themselves.
The “homologizing” of pregnancy and motherhood that occurs in abortion law is part and parcel of a larger phenomenon: the notion that all women, and especially all pregnant women, are conclusive mothers who naturally “mother.” See Julia E. Hanigsberg, Homologizing Pregnancy and Motherhood: A Consideration of Abortion, 94 Mich. L. Rev. 371, 374 (1995). As the old proverb goes: “Maternity is a matter of fact. Paternity is a matter of opinion.” Under the common law, mater est quam gestation, or “by gestation the mother is demonstrated.” See John Lawrence Hill, What Does it Mean To Be a “Parent”?: The Claims of Biology as the Basis for Parental Rights, 66 N.Y.U. L. Rev. 353, 370 (1991). The Supreme Court eventually formalized this idea in its approach to “illegitimacy” and unwed fatherhood. In the 1970s, the Court upheld laws that burdened paternal (but not maternal) illegitimacy on the ground that “[u]nlike the mother … whose identity will rarely be in doubt, the identity of the father will frequently be unknown.” See Parham v. Hughes, 441 U.S. 347, 355-56 (1979) (upholding a law denying the father of a non-marital, unlegitimated child the right to sue a third party for the child’s wrongful death). By 2001, a majority of the Court invoked this maternity meme when upholding sex discrimination in federal law, confidently declaring that “[t]he mother is always present at birth” and that “proof of motherhood …is inherent in birth itself.” See Tuan Anh Nguyen v. I.N.S., 533 U.S. 53, 64 (2001) (upholding federal citizen transmission law’s sex-specific proof-of-parentage requirements). Even the Court’s most recent unwed father case—which rejected a law on sex-stereotyping grounds—asserted that maternity is obvious by a woman’s act of “giving birth.” See Sessions v. Morales-Santana, 137 S. Ct. 1678, 1693 & 1694 (2017) (stating that federal citizen transmission law’s sex-specific proof-of-parentage requirement reflects the reality that maternity, unlike paternity, is obvious by a woman’s act of “giving birth” but striking down that law’s sex-specific duration-of-residence requirement as an “anachronistic” stereotype).
This idea that maternity, unlike paternity, is obvious and uncomplicated shades quickly into sex stereotypes about mothering and fathering. See, e.g., Sylvia A. Law, Rethinking Sex and the Constitution, 132 U. Pa. L. Rev. 995, 1036 (1984). It also has “trickled down” from the Supreme Court to lower courts in their resolution of a wide variety of issues where sex differences appear to be relevant. Witness, for instance, the role that maternity certainty has played in recent transgender discrimination litigation, a context that has nothing to do with “obvious” mothers and “uncertain” fathers. There, some courts have credited states’ arguments that so-called “bathroom bills” pass constitutional muster because they are based on this fundamental sex difference: the fact that “‘at the moment of birth the mother’s knowledge of the child and the fact of parenthood have been established in a way not guaranteed in the case of the …. father.’” See Carcaño v. McCrory, 203 F. Supp. 3d 615, 643 (M.D.N.C. 2016) (citing Nguyen, 533 U.S. at 64); see also Brief for Petitioner R.G. & G.R. Harris Funeral Homes v. EEOC & Stephens, 2017 WL 2771553 at *24 (6th Cir. 2017) (citing Tuan Anh Nguyen v. I.N.S,, 533 U.S. 61, 66 (2001)), cert. granted in part R.G. & G.R. Harris Funeral Homes v. EEOC & Stephens, 2019 WL 1756679. Most important here, this maternity meme reflects and reproduces the same norms that have long shaped abortion law, which takes for granted that pregnant women are obvious mothers and inherently maternal.
Alternative reproduction, including the technologies of today and the more radical technologies of tomorrow, disrupts the law’s—including abortion law’s—pregnancy/motherhood homology in several ways. First, as a matter of fact, ART makes it harder to say that the pregnant woman is always the mother (she might be a surrogate). Second, ART expands the class of people who can be legal mothers beyond the pregnant woman (consider the non-biological mother in Brooke S.B.). Third, as a matter of doctrine, ART has precipitated a number of maternity cases (like Brooke S.B.) that address dual and dueling maternity. See, e.g., In re: Baby M., 537 A.2d 1227 (N.J. 1988); Johnson v. Calvert, 851 P.2d 776 (1993); K.M. v. E.G., 117 P.3d 673 (Cal. 2005); P.M. v. T.B., 907 N.W.2d 522 (Iowa 2018). These cases—along with statutory reform efforts like the 2017 Uniform Parentage Act, which recognizes that maternity can be as complicated as paternity—challenge one of constitutional law’s most deeply-rooted axioms: that pregnant women are presumptive mothers; that the mother is “always an identifiable parent,” Caban v. Mohammed, 441 U.S. 390, 399 (Stewart, J., dissenting); that the mother (unlike the father) is “known with certainty,” Caban, 441 U.S. at 405 (Stevens, J., dissenting); that “[t]he mother is always present at birth,” Tuan Anh Nguyen v. I.N.S., 533 U.S. 53, 64 (2001); and that “proof motherhood… is inherent in birth itself,” Nguyen, 533 U.S. at 64.
In 1973, the Roe v. Wade Court considered how “new medical technologies such as … artificial insemination, and even artificial wombs,” affected questions like “what is life” and “when does life begin?” Roe v. Wade, 410 U.S. 113, 161 (1973). Indeed, it was precisely because ofthose technologies that the Roe majority refrained from extending independent due process protection to potential life, lest the Court undermine the abortion right entirely. See Roe, 410 U.S. at 159 (rejecting Texas’s argument that life begins at conception in part because of technological advances that render the questions of “what is life” and “when does it begin” resistant to judicial resolution). On this telling, alternative reproductive technologies have served as an explicit constraint on the state’s regulatory power in the abortion context for as long as the abortion right has existed.
Similarly today, cases like Brooke S.B. invite us to consider how reproductive medical technologies, old and new, affect questions like “who is the mother,” “what is a mother,” and even “what are sex and gender?” While important generally, such questions are especially relevant in a regulatory atmosphere that increasingly seeks to “establish” official understandings of sex, gender, and motherhood through (among many other things) laws that flagrantly prohibit abortion, thereby compelling pregnant women to live out the idealized maternal role long assigned to them. As Reproductive Rights and Justice Stories so wonderfully shows, regulation takes many shapes—and so does resistance. Sometimes, resistance occurs through overt acts of legal and political defiance at various levels of government: Estelle Griswold’s near gleeful confrontation with law enforcement; Wendy Davis’s thirteen-hour legislative filibuster; Crystal Ferguson’s ultimately successful Supreme Court battle. And sometimes, resistance is less visible—even beginning outside the formal boundaries of law with the technologies that simultaneously allow motherhood to flourish and interrogate its very being.