Ruth Institute board member Helen Alvare has a brilliant article on recasting abortion law in terms of family law, instead of constitutional law.
family law is experiencing second thoughts about “what was lost” during the period when lawmakers fell into a pattern of prioritizing adults’ interests over children’s. This is a fair characterization of family law’s failures over the past 30-40 years: the failure to place meaningful limits on the use of ARTs in order to defer to adults’ wishes and to the flourishing of the fertility industry; the adoption of no-fault divorce laws which turned a blind eye to the wellbeing of minor children within a marriage. This “adults’-eye-view” (really a blindness) has permeated recent judicial decisions creating a right to same-sex marriage on the grounds that legal marriage is unrelated to any state interest in procreation and child-rearing.
A backlash against the adults-first approach is now brewing. Bills introduced at the state level have suggested a number of positive steps, including restricting assisted reproductive technologies to married couples, or limiting donor anonymity. Others have proposed slowing down divorce proceedings, especially for couples with minor children. Meanwhile, every state which has turned the question of same-sex marriage over to voters has passed a law or constitutional amendment banning them, largely after campaigns insisting on the links between marriage, procreation, and child welfare. …
The “adults-first” notion has long reigned in abortion law. Consider abortion’s component parts: Abortion is the destruction of a human life by the mother—the only person physically “given” to the child for nurture. Abortion is performed when the child is at perhaps the most defenseless moment of his or her existence. And while the killing of strangers—born or unborn—is prohibited in the United States, family members are permitted to be aborted. The wound to the good of the child, and even to the good of the whole family, is apparent. Abortion law makes the family not only not the safest place, but the only legally sanctioned danger zone. The law, in particular, casts mothering as a serious threat. It suggests that women – due to their childbearing potential – are cursed and not gifted. It makes invisible the humanity of children. Considered from the perspective of family and social welfare, this is not good for women, for children, or for the larger society. …