China has a new policy on having children. Forever, they have had a one child policy; women were permitted only one child and no more or they suffered severe penalties, then China graduated to a two child policy. Now, China has opened up its policy to allow women to have three children. They contend that with their population aging, they need to increase the worker population. The Decision on Optimizing Birth Policies to Promote Long-term and Balanced Population Development adopted by the Central Committee of Communist Party of China and the State Council in June 2021 made an important strategic deployment of “implementing the policy that a couple can have three children”. They need women to produce more children. Women as baby factories, now there’s freedom for you.
Of course, China is not the only nation with less than a stellar law on women as baby factories.
In Justice Alito’s infamous, leaked draft opinion in the Dobbs v Jackson Women’s Health case he cited a CDC report which expressed that there was a paucity of babies to be adopted. The language used by the report and cited by Alito is “whereas the domestic supply of infants relinquished at birth or within the first month of life and available to be adopted has become virtually nonexistent.” Alito’s footnote closely followed another in which he praised Justice Barrett’s logic that there is no meaningful hardship in conscripting women to remain pregnant and deliver babies because safe haven laws allow them to drop those unwanted babies off at the fire station for adoption. Problem solved, if we have an insufficient domestic supply of infants, just force women to have babies and that’s no big deal because they can just drop them off at the nearest fire station. That’s no more of a hassle than donating at Toys for Tots, right?
Defenders of the onerous opinion have argued that neither Alito nor Barrett meant this outcome but those defenders are woefully mistaken. The philosophical leap required by the opinion lies in the premise of the positions, that women do not have bodily autonomy, that they are baby carriers in this instance, no more, no less. You have to ignore and abandon bodily autonomy before domestic supply of infants and baby drop offs become relevant.
Both China and the United States are conscripting their female populations to child birth. Both China and the United States are conscripting their female population to chattel slavery. Neither starts from a premise that women own their own bodies, rather, their bodies are vessels to accomplish the government’s objectives. Rights? What rights?
Freedom for men, not so much for others
So why am I up in arms about women’s loss of rights on a family law blog post? What do you think lawyers do? We fight for our clients’ rights. We seek to create a more just world. We aim to form a more perfect union. The Supreme Court just reduced women to inferior beings. Lawyers, family lawyers, will not stand idly by. Rather, we will find ways to litigate these issues at every turn, in every opportunity. The right to a family and the right to make the decision about whether to have one is about as family law as family law could get.
In the Dobbs opinion, Alito argues that there is no explicit constitutional protection for abortion rights and that any right not explicitly enumerated in the Constitution must be “deeply rooted in this Nation’s history and tradition” and “implicit in the concept of ordered liberty” in order to qualify for constitutional protection.
To carry that thought a little further, in his concurring opinion in Dobbs, Justice Thomas wrote:
“In future cases, we should reconsider all of this Court’s substantive due process precedents, including Griswold, Lawrence, and Obergefell. Because any substantive due process decision is “demonstrably erroneous,” we have a duty to “correct the error” established in those precedents.”
Substantive Due Process is a demonstrably erroneous decisions? What might that impact?
In addition to the right to an abortion, Substantive Due Process is the underpinning for the right to birth control, the right to same-sex sexual relations and the right to same-sex marriage. Of course, the right to marry outside of your race as decided in the Loving decision is also one of those rights. Thomas didn’t cite that one, did he? Mere oversight on his part?
And don’t forget that in Santosky v Kramer, the Supreme Court determined that under Due Process, parents have a right to parent their children. And in Meyer v Nebraska, the Supreme Court ruled, again under the due process clause, that parents have a fundamental right to control the upbringing of their children. And you just thought that abortion was on the chopping block and that the larger domestic supply of infants was on the auction block.
Oh, but it goes on. The right to have custody of your children and the right to marry at all are all based upon Substantive Due Process. Envision a world where the government has taken away these rights. Do you recognize that world? Does that look like the United States of America to you? It does to five of the people sitting on the Supreme Court.
As we will be watching all other privacy rights wrenched from Americans, family lawyers will be on the front lines, in the trenches, in court fighting those fights, as we have for decades leading up to the landmark decisions which so offends dictators.
China and America are way too close in despicable laws and in running roughshod over their people for my comfort level. Women are not second class citizens of these United States. No one should be. Not now! Not ever!