Tuesday, January 15, 2013

Liberty, Equality, and the Rights to Have Families

Guest Blogger

Ariela Dubler

Writing in 1943, Dr. Charlotte Silverman, a researcher at the U.S. Children’s Bureau, argued that one troubling consequence of the absence of fair maternity leave policies in workplaces  was that, faced with the prospect of losing their jobs, more women were choosing to have abortions.  Better leave policies, she argued, would mean fewer abortions.

Five years later, in the aftermath of World War II, when a congressional subcomittee held hearings on a bill that would have guaranteed paid maternity leave to female government workers, Genrose Gehri, the director of a home for unmarried mothers, was questioned about whether paid maternity leave would encourage more women to avoid marriage.  Gehri dismissed these concerns.  “I know that every time such a bill is considered,” she testified, “there is always the fear lest the unmarried be included in these benefits, that illegitimacy will be encouraged.  I think there is no need for such a fear as that.  The unmarried girl who has a second child in my judgment, is a sick person.”
*          *          *

Today, we tend not to reason about abortion and marriage as intimately connected to parental leave policies.  This was not always so—I offer the above historical tidbits for a quick peek at alternate ways of reasoning about women’s family and work choices.
Our constitutional law is one force that has helped pull these areas of family regulation away from one another.  In my comments, I want to ask what we would learn if we started to move these strands of reasoning back together.  Thinking about Roe and Lawrence together is part of that process, but I think we can go further.
“The View from Roe’s 40th Anniversary and Lawrence’s 10th Anniversary” offers a particular perspective on families, as well as a particular perspective on the relationship between families and liberty/equality reasoning.  But consider how our perspective on the many points of intersection among family/liberty/equality questions might be altered if we broadened our lens and gazed at the family from a viewpoint that included, not only Roe and Lawrence, but also two additional cases with remarkably similar anniversaries: Cleveland Board of Education v. LaFleur (decided the year after Roe) and Nevada Department of Human Resources v. Hibbs (decided the very same term as Lawrence).  In LaFleur, the Supreme Court struck down mandatory maternity leave policies as a violation of the Fourteenth Amendment’s Due Process guarantees.  The Court held that such policies violated a pregnant teacher’s liberty interests and penalized that teacher for her decision to have a child.  In Hibbs, the Court held that Congress had the power to pass the gender-neutral leave provisions of the FMLA under Section Five of the Fourteenth Amendment because they were a congruent and proportional remedy for a history of state action counter to the guarantees of the Equal Protection Clause—specifically, maternity-only leave policies.
When we add LaFleur and Hibbs to the mix, work becomes a key site where the constitutional dimensions of the family are defined.  And broadening our lens allows us to ask additional questions about the Constitution and the family that are harder to see if we consider only Roe and Lawrence.  For example:

            What if our liberty jurisprudence protected not only a right not to procreate, but also a more robust right to procreate?  What would that mean for how we think about both liberty and equality within the family?

            What if our constitutional reasoning broke down the old “separate spheres” and understood the workplace alongside the home, work alongside sexual intimacy, as the key cites where the familial liberty and equality are defined?
            And how would we think about the liberty- and equality-based limits on family regulation if we considered abortion, marriage, and parental leave—as well as the connections among these family-defining policy arenas—as related sites of family definition?

Ariela R. Dubler is George Welwood Murray Professor of Legal History at
Columbia Law School. You can reach her by e-mail at ariela.dubler at

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