The price of pleasure

Northwestern University Law Review

Volumn 104, Issue 3, 2010, Pages 917-978

  Motro, Shari ^a  

^a UNIVERSITY OF RICHMOND   (United States)

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[No Author keywords available]

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EID: 78751604634     PISSN: 00293571     EISSN: None     Source Type: Journal    
DOI: None     Document Type: Article

References (519)

1. JONI MITCHELL: WOMAN OF HEART AND MIND (Eagle Rock 2003) (DVD's extra features).
2. GUTTMACHER INST., FACTS ON PUBLICLY FUNDED CONTRACEPTIVE SERVICES IN THE UNITED STATES 1 (2009), available at http://www.guttmacher.org/pubs/fb_contraceptive_serv.pdf.
3. Stanley K. Henshaw, Unintended Pregnancy in the United States, 30 FAM. PLAN. PERSP. 24, 27 (1998), available at http://www.guttmacher.org/pubs/journals/3002498.pdf.
4. Melinda Beck, The Birth-Control Riddle, WALL ST. J., Apr. 20, 2010, at D1 ("One out of every two American women aged 15 to 44 has at least one unplanned pregnancy in her lifetime. Among unmarried women in their 20s, seven out of 10 pregnancies are unplanned.").
5. see also Rob Stein, New Debate on Sex Education as Teen Pregnancies Head Back Up; in First Jump Since 1990, Rate Continues to be Highest for Minorities, WASH. POST, Jan. 26, 2010, at A4.
6. See Susan Frelich Appleton, Toward a "Culturally Cliterate" Family Law?, 23 BERKELEY J. GENDER L & JUST. 267, 286-87 (2008).
7. Because the focus of this Article is on pregnancy, "sex" or "sexual relations" generally refers to penile-vaginal penetration. There are, of course, many other types of sex. See Susan Frelich Appleton, Toward a "Culturally Cliterate" Family Law?, 23 BERKELEY J. GENDER L & JUST. 267, 286-87 (2008) ("[Family law's] preoccupation with penile-vaginal penetration-not the usual route to orgasm for women-communicates the irrelevance of female sexual pleasure....Family law thus constructs male orgasmic pleasure as worthy of concern and naturalizes anorgasmic sexual experiences for women.").
8. Linda C. McClain, "Irresponsible" Reproduction, 47 HASTINGS L.J. 339, 340 (1996) (defining "irresponsible reproduction" to include conception outside of wedlock and abortion).
9. Although it falls outside the scope of this Article, it is worth noting that whereas both genders must contend with the risks of contracting a sexually transmitted disease, some studies indicate that women are more vulnerable to infection. See, e.g., Women's Health, STDs & Women: What Causes STDs?, http://www.womens-health.co.uk/www.std-women.html (last visited Aug. 28, 2010) ("The reason women are more vulnerable to infection than men is because the surface area which is exposed is larger in women. The vagina serves as a type of reservoir which lengthens the time of contact with infectious fluids. Tiny, micro-injuries, which can absorb these fluids into the blood, are more common in women than men as well....The complications caused by STDs tend to be more severe for women.").
10. See Martha Chamallas, Consent, Equality, and the Legal Control of Sexual Conduct, 61 S. CAL. L. REV. 777, 830-35 (1988).
11. See Martha Chamallas, Consent, Equality, and the Legal Control of Sexual Conduct, 61 S. CAL. L. REV. 777, 830-35 (1988) (arguing that the law is not at a point where deception is generally regarded as an impermissible inducement to sex).
12. Jane E. Larson, "Women Understand So Little, They Call My Good Nature 'Deceit'": A Feminist Rethinking of Seduction, 93 COLUM. L. REV. 374, 381 (1993) (arguing that the existing adjudicatory system demonstrates an absence of authentic consent required under sexual fraud).
13. Michelle Oberman, Sex, Lies, and the Duty to Disclose, 47 ARIZ. L. REV. 871, 887-89 (2005) ("The post-seduction norm of nondisclosure [that enables sexual fraud] represents a degree of complacency with regard to bald-faced lying that is almost unparalleled in the common law governing tort and contract.").
14. Lea VanderVelde, The Legal Ways of Seduction, 48 STAN. L. REV. 817, 893 (1996) (exploring the history of seduction under the law, and treatment of sexual fraud under the Field Codes).
15. Indeed, though Hirshman and Larson recognize and do much to expose the injustice of the current sexual default vis-à-vis all women, their proposal would make consensual sexual partners responsible towards each other only if they are engaged in a long-term relationship that involves some form of economic reliance or sacrifice. See LINDA R. HIRSHMAN & JANE E. LARSON, HARD BARGAINS: THE POLITICS OF SEX 281 (1998) (introducing the authors' proposal for a "statutory concubinage contract").
16. See MARTHA ALBERTSON FINEMAN, THE NEUTERED MOTHER, THE SEXUAL FAMILY AND OTHER TWENTIETH CENTURY TRAGEDIES 230-33 (1995).
17. The law should, she argues, support the vertical "Mother/Child dyad" rather than horizontal sexual affiliations (like husbands and wives). See MARTHA ALBERTSON FINEMAN, THE NEUTERED MOTHER, THE SEXUAL FAMILY AND OTHER TWENTIETH CENTURY TRAGEDIES 230-33 (1995).
18. See Rachel Benson Gold, Recession Taking Its Toll: Family Planning Safety Net Stretched Thin as Service Demand Increases, 13 GUTTMACHER POL'Y REV. 8, 11-12 (2010) (examining the recession's harsh impact on women of reproductive ages and acknowledging that many women, even before the recession, were uninsured without sufficient public support to provide sufficient family planning support).
19. Christie Campbell-Grossman et al., Community Leaders' Perceptions of Single, Low-Income Mothers' Needs and Concerns for Social Support, 22 J. COMMUNITY HEALTH NURSING 241, 254 (2005) (noting that even where support is available, it is "difficult to navigate, often unfriendly, culturally insensitive, and ineffective in meeting the needs of single mothers at times").
20. Indeed, even California, a state once touted for its "landmark healthcare programs," Shane Goldmacher & Evan Halper, Schwarzenegger's Revised Budget Plan Is Expected to Eliminate Health Programs, L.A. Times, May 13, 2010, http://articles.latimes.com/2010/may/13/local/la-me-state-budget-20100513, has proposed limiting the state's Medicaid program for pregnant women by reducing eligibility requirements from 200 percent to 133 percent of the poverty level.
21. Tom Eley, U.S. States Slash Medicaid, GLOBALRESEARCH.CA, Feb. 22, 2010, http://www.globalresearch.ca/index.php?context=va&aid=17743.
22. But see California Access for Infants and Mothers Program, http://www.aim.ca.gov (last visited Aug. 28, 2010). To address the unmet needs of pregnant women, Democrats for Life have proposed a bill, the Pregnant Women Support Act, H.R. 6145, 109th Cong. (2006), aimed at supporting "women facing unplanned pregnancies, new parents and their children by providing comprehensive measures for health care needs, supportive services and helpful prenatal information and postnatal services."
23. I explore Fineman's theory in more detail in Shari Motro, Preglimony, 63 STAN. L. REV. (forthcoming 2011).
24. In my next piece I will address the practical aspects of this project in more detail by proposing a first step towards comprehensive preglimony recognition through tax reform. See Shari Motro, Preglimony, 63 STAN. L. REV. (forthcoming 2011).
25. GUTTMACHER INST., FACTS ON PUBLICLY FUNDED CONTRACEPTIVE SERVICES IN THE UNITED STATES 1 (2009), available at http://www.guttmacher.org/pubs/fb_contraceptive_serv.pdf, at 1.
26. GUTTMACHER INST., FACTS ON PUBLICLY FUNDED CONTRACEPTIVE SERVICES IN THE UNITED STATES 1 (2009), available at http://www.guttmacher.org/pubs/fb_contraceptive_serv.pdf, at 1.
27. GUTTMACHER INST., FACTS ON PUBLICLY FUNDED CONTRACEPTIVE SERVICES IN THE UNITED STATES 1 (2009). at 1, 4 ("About half of all pregnancies in the United States each year-more than three million-are unintended. By age 45, more than half of all American women will have experienced an unintended pregnancy, and about one-third will have had an abortion.").
28. Genesis 3:16 (King James).
29. See Jennifer S. Hendricks, Body and Soul: Equality, Pregnancy, and the Unitary Right to Abortion, 45 HARV. C.R.-C.L. L. REV. 329, 342 (2010) (suggesting that "the idea of a health exception [to abortion regulations], however broad or narrow, incorporates an implicit distinction between normal pregnancy and the complications of pregnancy," and that the "distinction renders the inherent risks and physical burdens of all pregnancies invisible").
30. See CHRISTIANE NORTHRUP, WOMEN'S BODIES, WOMEN'S WISDOM 477-94 (1998).
31. THE BUSINESS OF BEING BORN (Barranca Productions 2008); Welcome to Orgasmic Birth, http://www.orgasmicbirth.com (last visited Aug. 28, 2010).
32. For resources on the pleasure of birth, see Welcome to Orgasmic Birth, http://www.orgasmicbirth.com (last visited Aug. 28, 2010).
33. Sylvia A. Law, Rethinking Sex and the Constitution, 132 U. PA. L. REV. 955, 955-56 (1984).
34. See, e.g., Lucy J. Puryear, Understanding Your Moods When You're Expecting-The Conspiracy of Silence, STORKNET, June 2008, http://www.storknet.com/cubbies/pregnancy/moods-silence.htm.
35. Some courts have reinforced this trivializing view of pregnancy's symptoms. See, e.g., Dormeyer v. Comerica Bank-Ill., 223 F.3d 579, 583 (7th Cir. 2000) (finding that employer did not violate the Pregnancy Discrimination Act even though the plaintiff's absenteeism was due to pregnancy illness, because the plaintiff was fired based on her absenteeism, not pregnancy).
36. Troupe v. May Dept. Stores Co., 20 F.3d 734, 738 (7th Cir. 1994) (finding that an employer did not violate the Pregnancy Discrimination Act by dismissing a pregnant employee who was suffering from severe and incapacitating "morning sickness" for her "chronic tardiness" the day before her paid maternity leave was set to begin).
37. see also Ann C. McGinley & Jeffrey W. Stempel, Condescending Contradictions: Richard Posner's Pragmatism and Pregnancy Discrimination, 46 FLA. L. REV. 193 (1994) (discussing the Troupe case and Judge Posner's flippant view of pregnancy).
38. Susan Renee Wilcox, Pregnancy, Hyperemesis Gravidarum, EMEDICINE, Jan. 13, 2010, http://emedicine.medscape.com/article/796564-overview.
39. See generally WebMD, Health & Pregnancy Guide, Common Pregnancy Pains and Their Causes, http://www.webmd.com/baby/guide/pregnancy-coping-with-discomforts (last visited Aug. 28, 2010).
40. Merck Manual of Medical Information, Risk Factors that Develop During Pregnancy, http://www.merck.com/mmhe/print/sec22/ch258/ch258c.html (last visited Aug. 28, 2010).
41. see also Christiane Northrup, A Woman's Nation: Reclaim Your Right to Birth Right, HUFFINGTON POST, Oct. 16, 2009, http://www.huffingtonpost.com/christiane-northrup/c-section-or-natural-birt_b_323422.html ("According to the Centers for Disease Control (CDC), the number of maternal deaths in the United States is probably up to three times as high as the number reported in our national statistics because not all maternal deaths are classified as pregnancy-related on the death certificate. According to midwife Ina May Gaskin, who launched the Safe Motherhood Quilt Project to bring this issue to public attention, the maternal death rate has actually doubled in the UNITED STATES in the last 25 years. It was 7.5 per 100,000 live births in 1982. In 1999, that rate had risen to 13.2 deaths per 100,000 births. By 2005, it was up to 15.1 per 100,000 live births!" (footnotes omitted)).
42. See WebMD, Health & Pregnancy Guide, Common Pregnancy Pains and Their Causes, http://www.webmd.com/baby/guide/pregnancy-coping-with-discomforts (last visited Aug. 28, 2010).
43. see also EILEEN L. MCDONAGH, BREAKING THE ABORTION DEADLOCK 69-71 (1996) (describing the complicated physiological changes and physical exchanges between fetus and woman during even healthy pregnancies).
44. See Columbia University, Mailman School of Public Health, Averting Maternal Death and Disability, http://www.amddprogram.org (last visited Aug. 28, 2010).
45. UNICEF, THE PROGRESS OF NATIONS 48 (1997), available at http://www.unicef.org/pon97.
46. see also Bharati Sadasivam, The Rights Frame-work in Reproductive Health Advocacy-A Reappraisal, 8 HASTINGS WOMEN'S L.J. 313, 343 (1997) ("A staggering 585,000 women worldwide die every year due to complications associated with pregnancy and childbirth.").
47. Amnesty International reports that "maternal mortality ratios have increased from 6.6 deaths per 100,000 live births in 1987 to 13.3 deaths per 100,000 live births in 2006." AMNESTY INT'L, DEADLY DELIVERY: THE MATERNAL HEALTH CARE CRISIS IN THE USA, SUMMARY 3 (2010), http://www.amnestyusa.org/dignity/pdf/DeadlyDeliverySummary.pdf.
48. Maternal deaths are only the tip of the iceberg: "During 2004 and 2005, more than 68,000 women nearly died in childbirth in the USA. Each year, 1.7 million women suffer a complication that has an adverse effect on their health." AMNESTY INT'L, DEADLY DELIVERY: THE MATERNAL HEALTH CARE CRISIS IN THE USA, SUMMARY 3 (2010).
49. See Circle Surrogacy, Payment/Bills, http://www.circlesurrogacy.com/surrogate/faq.html#Payments (last visited Aug. 28, 2010).
50. See WebMD, Health & Pregnancy Center, Pregnancy and Signs of Labor, http://www.webmd.com/baby/labor-signs (last visited Aug. 28, 2010) ("[L]abor contractions usually cause discomfort or a dull ache in your back and lower abdomen, along with pressure in the pelvis....Some women describe contractions as strong menstrual cramps.").
51. Lewis E. Mehl-Madrona & Morgane Mehl-Madrona, The Medical Risks of Epidural Anesthesia (Epidurals), http://www.healing-arts.org/mehl-madrona/mmepidural.htm (last visited Aug. 28, 2010).
52. WebMD, Episiotomy and Perineal Tears-Overview, http://www.webmd.com/baby/tc/ episiotomy-and-perineal-tears-overview (last visited Aug. 28, 2010).
53. The episiotemy "can impair sexual pleasure by irreversibly injuring clitoral muscles, replacing erectile tissue in the vulva with scar tissue, interfering with the capacity to produce natural lubrication, and making future intercourse painful." Susan Frelich Appleton, Toward a "Culturally Cliterate" Family Law?, 23 BERKELEY J. GENDER L & JUST. 267, 286-87 (2008), at 324.
54. Appleton notes that despite these risks and the questionable efficacy of the episiotomy in aiding delivery, it remains "one of the most common medical procedures in the United States." Susan Frelich Appleton, Toward a "Culturally Cliterate" Family Law?, 23 BERKELEY J. GENDER L & JUST. 267, 286-87 (2008) at 323-24.
55. D. Ashley Hill, Cesarean Section, CHILDBIRTHSOLUTIONS, 2000, http://www.childbirthsolutions.com/articles/birth/cesarean/index.php.
56. WebMD, Health & Pregnancy, Cesarean Section-Topic Over-view, http://www.webmd.com/baby/tc/cesarean-section-topic-overview?page=2 (last visited Aug. 28, 2010).
57. Christiane Northrup, A Woman's Nation: Reclaim Your Right to Birth Right, HUFFINGTON POST, Oct. 16, 2009, http://www.huffingtonpost.com/christiane-northrup/c-section-or-natural-birt_b_323422.html.
58. eMedicineHealth, Cesarean Childbirth, http://www.emedicinehealth.com/cesarean_childbirth/ article_em.htm (last visited Aug. 28, 2010).
59. Christiane Northrup, A Woman's Nation: Reclaim Your Right to Birth Right, HUFFINGTON POST, Oct. 16, 2009, http://www.huffingtonpost.com/christiane-northrup/c-section-or-natural-birt_b_323422.html.
60. Compare WebMD, Health & Pregnancy, Cesarean Section-Topic Overview, http://www.webmd.com/baby/tc/cesarean-section-topic-overview?page=2 (last visited Aug. 28, 2010). ("[I]t may take 4 weeks or longer to fully recover [after a C-section].").
61. with D. Ashley Hill, Cesarean Section, CHILDBIRTHSOLUTIONS, 2000, http://www.childbirthsolutions.com/articles/birth/cesarean/index.php ("Many women recover [from a C-section] surprisingly quickly and leave [the hospital] after a few days.").
62. On recovery of the perineal area in particular, see Frederick R. Jelovsek, Vaginal Conditions After Delivery, WOMEN'S HEALTH RESOURCE, http://www.wdxcyber.com/npreg14.htm (last visited Aug. 28, 2010) ("One study that looked at how long, on the average, it took women to recover various functions after normal vaginal delivery found that the median time (time for 50% of subjects) 'for perineal comfort in general (including walking and sitting) was 1 month (range, 0-6 months).
63. 20% of women took more than 2 months to achieve general perineal comfort. For comfort during sexual intercourse, the median time was 3 months (range, 1 to more than 12 months); 20% of women took longer than 6 months to achieve comfort during sexual intercourse.'").
64. See Matthew D. Oldfield, Long Term Prognosis of Women with Gestational Diabetes in a Multiethnic Population, 83 POSTGRAD. MED. J. 426 (2007).
65. Miranda Hitti, Anal Incontinence Lingers After Vaginal Birth: More Common with Anal Sphincter Tear, Additional Births, and Increased Age, WEBMD HEALTH NEWS, Dec. 10, 2004, http://www.webmd.com/baby/news/20041210/anal-incontinence-lingers-after-vaginal-birth.
66. WebMD, Health & Pregnancy, Postpartum Problems, http://www.webmd.com/baby/guide/ postpartum-problems (last visited Aug. 28, 2010).
67. University of Michigan Depression Center, Women and Depression, Postpartum Depression, http://www.depressioncenter.org/understanding/postpartum.asp (last visited Aug. 28, 2010).
68. University of Michigan Depression Center, Women and Depression, Postpartum Depression, http://www.depressioncenter.org/understanding/postpartum.asp (last visited Aug. 28, 2010).
69. Kevin Caruso, Postpartum Depression and Suicide, SUICIDE.ORG, http://www.suicide.org/ postpartum-depression-and-suicide.html (last visited Aug. 28, 2010).
70. Medline Plus, Postpartum Depression, http://www.nlm.nih.gov/medlineplus/postpartumdepression.html (last visited Aug. 28, 2010).
71. Sally Ann Lederman, Pregnancy Weight Gain and Postpartum Loss: Avoiding Obesity While Optimizing the Growth and Development of the Fetus, 56 J. AM. MED. WOMEN'S ASS'N 53, 53 (2001).
72. Univ. of Md. Med. Ctr., Pregnancy Guide, http://www.umm.edu/pregnancy/000214.htm (last visited Aug. 28, 2010).
73. See Univ. of Md. Med. Ctr., Pregnancy Guide, http://www.umm.edu/pregnancy/000214.htm (last visited Aug. 28, 2010).
74. Andrea Thompson, Breast-Feeding Isn't Such a Drag on Breasts, MSNBC.COM, Nov. 2, 2007, http://www.msnbc.msn.com/id/21599854.
75. See CATHARINE A. MACKINNON, SEX EQUALITY 395 (2d ed. 2007).
76. Novelist Rachel Cusk's unsentimental account of her own first pregnancy paints the most evocative picture I have seen of the existential dread that can come along with pregnancy, even when the pregnancy is wanted and the woman has a full-fledged partner. She writes: In the mornings, when I wake up, I observe the rising mountain of my stomach and have to fight surges of intense claustrophobia. With many weeks of pregnancy remaining I am marooned as far from myself as I will ever be. It is not just abstinence, stripped of the pleasure of the possibility of giving in to temptation, that grates on me; nor even the extremity of my physical transformation, nor the strange pains that accompany it, nor the surreally floundering being that writhes like a live fish in my stomach, nor the disempowerment I feel, the vulnerability to others' eyes and assumptions....It is the population of my privacy, as if the door to my room were wide open and strangers were in there, rifling about, that I find hard to endure. It is as if I have been arrested or called to account, summoned by the tax inspector, isolated and searched. I am living not freely but in some curious tithe. I have surrendered my solitude and become, for these nine months, a bridge, a link, a vehicle.
77. RACHEL CUSK, A LIFE'S WORK 33-34 (2001).
78. CYNTHIA R. DANIELS, AT WOMEN'S EXPENSE: STATE POWER AND THE POLITICS OF FETAL RIGHTS (1993).
79. RACHEL ROTH, MAKING WOMEN PAY: THE HIDDEN COSTS OF FETAL RIGHTS (2000).
80. April L. Cherry, Roe's Legacy: The Nonconsensual Medical Treatment of Pregnant Women and Implications for Female Citizenship, 6 U. PA. J. CONST. L. 723, 732-33 (2004).
81. Martha A. Field, Controlling the Woman to Protect the Fetus, 17 L. MED. & HEALTH CARE 114 (1989).
82. Dawn E. Johnsen, The Creation of Fetal Rights: Conflicts with Women's Constitutional Rights to Liberty, Privacy, and Equal Protection, 95 YALE L.J. 599, 612-13 (1986).
83. Nancy K. Rhoden, The Judge in the Delivery Room: The Emergence of Court-Ordered Cesareans, 74 CAL L. REV. 1951, 1986 (1986).
84. Katherine A. Taylor, Compelling Pregnancy at Death's Door, 7 COLUM. J. GENDER & L. 85, 103-08 (1997).
85. see also In re A.C., 573 A.2d 1235, 1253 (D.C. 1990) (vacating a lower court's judgment ordering a cesarean for a woman dying of cancer posthumously).
86. CATHARINE A. MACKINNON, SEX EQUALITY 395 (2d ed. 2007), at 395.
87. Casey, 505 U.S. at 901.
88. Casey, 505 U.S. at 901.
89. see also Planned Parenthood of Se. Pa. v. Casey, 505 U.S. 833, 889 (1992) ("Mere notification of pregnancy is frequently a flashpoint for battering and violence within the family. The number of battering incidents is high during the pregnancy and often the worst abuse can be associated with pregnancy.").
90. CATHARINE A. MACKINNON, SEX EQUALITY 395 (2d ed. 2007), at 395 ("Pregnancy is a distinctive site of physical and sexual abuse. Domestic battering increases during pregnancy. Widely available pornography that makes pregnancy into a sexual fetish targets pregnant women for sexual aggression.").
91. See PAN AM. HEALTH ORG., DOMESTIC VIOLENCE DURING PREGNANCY, http://www.paho.org/English/AD/GE/VAWPregnancy.pdf (last visited Aug. 28, 2010).
92. Pregnancy might also be the result of violence. Women in violent relationships are more likely to experience an unintended pregnancy because their partners are more likely to refuse to use condoms or to prevent them from using birth control pills-flushing them down the toilet or physically abusing the woman for using the pill.
93. See LINDA R. HIRSHMAN & JANE E. LARSON, HARD BARGAINS: THE POLITICS OF SEX 281 (1998), at 274 (citing a study that found 29% of teenage mothers reported having had sexual intercourse as a result of physical force).
94. see also M. Jocelyn Elders & Alexa D. Albert, Adolescent Pregnancy and Sexual Abuse, 280 JAMA 648, 648-49 nn.4-7 (1998) (noting that "sexual abuse is a common antecedent of adolescent pregnancy, with up to 66% of pregnant teens reporting histories of abuse").
95. Mary Ellsberg & Barbara Shane, Violence Against Women: Effects on Reproductive Health, 20 OUTLOOK 1, 3 (2002) ("Women who have been sexually abused are much more likely than non-abused women to use family planning clandestinely, to have had their partner stop them from using family planning, and to have a partner refuse to use a condom to prevent disease.").
96. Gina Wingood & Ralph DiClemente, The Effects of an Abusive Primary Partner on Condom Use and Sexual Negotiation Practices of African American Women, 87 AM. J. PUB. HEALTH 1016 (1997).
97. DOMESTIC VIOLENCE AND BIRTH CONTROL SABOTAGE: A REPORT FROM THE TEEN PARENT PROJECT, CENTER FOR IMPACT RESEARCH (Feb. 2000) (reporting the connections between teen pregnancy, domestic violence, and birth control sabotage).
98. Reva Siegel, Reasoning from the Body: A Historical Perspective on Abortion Regulation and Questions of Equal Protection, 44 STAN. L. REV. 261, 374-75 (1992).
99. For a discussion of pregnancy and work, see Samuel Issacharoff & Elyse Rosenblum, Women and the Workplace: Accommodating the Demands of Pregnancy, 94 COLUM. L. REV. 2154 (1994).
100. See Saeed Ahmed, Pregnancy Does Cause Memory Loss, Study Says, CNNHEALTH.COM, Feb. 5, 2008, http://www.cnn.com/2008/HEALTH/conditions/02/05/pregnancy.memory/index.html.
101. Univ. of Maryland Med. Ctr., Pregnancy Guide, http://www.umm.edu/pregnancy/000214.htm (last visited Aug. 28, 2010).
102. For example, the Act covers only businesses with fifteen or more employees, see EEOC, Facts About Pregnancy Discrimination, http://www.eeoc.gov/facts/fs-preg.html (last visited Aug. 28, 2010), and even where it does apply, a plaintiff's chances of success in litigation over its protections are slim.
103. A plaintiff bringing a discrimination claim bears the burden of proving a causal link between her pregnancy and the adverse treatment she received. She must also show that the adverse treatment resulted from a policy adopted in order to disadvantage her rather than in spite of its disadvantage to her. This renders many cases difficult to litigate. See Joanna Grossman, A Marked Increase in Pregnancy Discrimination Claims and Other Key Developments Illustrate the Continuing Struggle of Pregnant Workers-Including Pregnant Attorneys: Part Two in a Two-Part Series of Columns, FINDLAW, Apr. 15, 2008, http://writ.news.findlaw.com/grossman/20080415.html.
104. 42 U.S.C. § 2000e(k) (2006).
105. See Jennifer Cunningham & Therese Macan, Effects of Applicant Pregnancy on Hiring Decisions and Interview Ratings, 57 SEX ROLES 497, 507 (2007) (providing empirical data showing that even where potential candidates offered "identical interview performances, raters [gave] less favorable hiring ratings to an applicant who [was] visibly pregnant").
106. see also Jennifer Cunningham & Therese Macan, Effects of Applicant Pregnancy on Hiring Decisions and Interview Ratings, 57 SEX ROLES 497, 507 (2007) at 497 ("[W]ith regard to pregnancy discrimination during the hiring process, several major companies have settled hiring discrimination charges [filed with the EEOC,] including Wal-Mart and Dillard's Department Store.").
107. Joanna L. Grossman, Pregnancy, Work, and the Promise of Equal Citizenship, 98 GEO. L.J. 567, 575 & n.37 (2010) (noting the escalation of pregnancy discrimination charges filed with the Equal Employment Opportunity Commission).
108. See, e.g., Rafeh v. Univ. Research Co., 114 F. Supp. 2d 396, 399-400 (D. Md. 2000) (granting an employer's motion for summary judgment upon a finding that demotion of a pregnant employee was not discriminatory when based on her unsatisfactory performance during pregnancy).
109. Wellborn v. Spur-wink, 873 A.2d 884, 891 (R.I. 2005) (holding that a pregnant employee's demotion to a "fill-in" position following her pregnancy amounted to discriminatory treatment).
110. see also Lesley Alderman, When the Stork Carries a Pink Slip, N.Y. TIMES, Mar. 27, 2009, at B6 (noting the suspicion that in laying off new or expectant mothers, some employers are taking advantage of the "laxity" of Title VII by using the "dismal economy" as a subtext "to tacitly discriminate" against pregnant women).
111. The Pregnancy Discrimination Act requires that employers hold open a job for a pregnancy-related absence the same length of time that jobs are held open for other employees on sick or disability leave, but it does not mandate paid maternity leave. 42 U.S.C. § 2000e(k).
112. Recent U.S. Department of Labor data show that just eight percent of private sector employers nationwide provide paid family leave to care for newborns. INST. FOR WOMEN'S POL'Y RESEARCH, MATERNITY LEAVE IN THE UNITED STATES 3 (2007), available at www.iwpr.org/pdf/parentalleaveA131.pdf.
113. See, e.g., Jelen v. Price, 458 N.E. 2d 1267, 1270 (Ohio App. 1983) (acknowledging that duties and financial responsibilities imposed by state paternity statutes on fathers of illegitimate children were "in derogation of the common law and must [therefore] be strictly construed" (citation omitted)).
114. People ex rel. Lawton v. Snell, 111 N.E. 50, 51 (N.Y. 1916).
115. In re Cirillo's Estate, 114 N.Y.S.2d 799, 801 (N.Y. Sup. Ct. 1952).
116. See, e.g., CAL. FAM. CODE § 7637 (West 2009) ("The judgment or order may direct the father to pay the reasonable expenses of the mother's pregnancy and confinement.").
117. R.I. GEN. LAWS § 15-8-1 (2008) ("The father of a child which is or may be born out of lawful wedlock is liable to the same extent as the father of a child born in lawful wedlock... for the reasonable expense of the mother's pregnancy and confinement.").
118. VA. CODE. ANN. § 20-49.8(A) (2009) ("A judgment or order establishing paren-tage... may direct either party to pay the reasonable and necessary unpaid expenses of the mother's pregnancy and delivery or equitably apportion the unpaid expenses between the parties.").
119. State ex rel. Reitenour, 807 A.2d 1259, 1262 (N.H. 2002) (relying on N.H. REV. STAT. § 168-A:1 in finding that "[o]nce paternity has been established, the father of a child born out of wedlock is liable for the 'reasonable expense of the mother's pregnancy and confinement'").
120. See, e.g., Coxwell v. Matthews, 435 S.E.2d 33, 33-34 (Ga. 1993) (holding that a claim for $15,459 in pregnancy and birth-related medical expenses may be made in an action to determine the paternity of a child and affirming the trial court's order that the father reimburse the mother for the entire amount).
121. Sisneroz v. Polanco, 975 P.2d 392, 398-99 (N.M. Ct. App. 1999) (holding that the mother of a child born out of wedlock had standing to seek reimbursement for pregnancy and birthing expenses while recognizing the trial court's discretion to grant or deny pregnancy and birthing costs).
122. State ex rel. Dep't of Health and Human Res. v. Carpenter, 564 S.E.2d 173, 176 (W. Va. 2002) (requiring a birth father to reimburse the Department of Health and Human Resources for $4,879 in birth and medical expenses paid on behalf of the mother).
123. Kathy L.B. v. Patrick J.B., 371 S.E.2d 583, 587 (W. Va. 1988) (requiring a child's biological father to reimburse the mother for birth expenses).
124. see also MASS. ANN. LAWS ch. 209C, § 9 (LexisNexis 2000 & Supp. 2010) ("An order may be entered requiring a parent chargeable with support to reimburse the mother... for medical expenses attributable to the child or associated with childbirth or resulting from the pregnancy.").
125. N.D. CENT. CODE § 14-20-48 (2009) (adopting language from Section 621(d) of the Uniform Parentage Act).
126. OKLA. STAT. ANN. tit. 10, § 7700-621 (West 2009) (same); TEX. FAM. CODE ANN. § 160.621 (Vernon 2008) (same).
127. TEX. FAM. CODE ANN. § 160.636(g) (Vernon 2008) ("On a finding of parentage, the court may... on a proper showing, order a party to pay an equitable portion of all of the prenatal and postnatal health care expenses of the mother and the child.").
128. UTAH CODE ANN. § 78B-15-613 (2008) (adopting language from Section 621(d) of the Uniform Parentage Act).
129. WASH. REV. CODE ANN. § 26.26.570 (West 2005) (same).
130. WYO. STAT. ANN. § 14-2-813 (2009) (same).
131. UNIF. PARENTAGE ACT § 621(d) (amended 2002) ("Copies of bills for genetic testing and for prenatal and postnatal health care for the mother and child which are furnished to the adverse party not less than 10 days before the date of a hearing are admissible to establish... that the charges were reasonable, necessary, and customary."), available at http://www.law.upenn.edu/bll/archives/ulc/upa/final2002.pdf.
132. Many jurisdictions have been silent on the issue, but Minnesota, Montana, and Ohio-whose statutes are modeled on the Uniform Parentage Act-do not include lost wages as part of the reasonable expenses associated with the birth. See Bunge v. Zachman, 578 N.W.2d 387, 389 (Minn. Ct. App. 1998).
133. In re Paternity of W.L., 855 P.2d 521, 523-24 (Mont. 1993).
134. Jelen, 458 N.E.2d at 1270. Lost wages are also not included in reasonable expenses of pregnancy in Arkansas.
135. See Taylor v. Finck, 211 S.W.3d 532, 537 (Ark. 2005).
136. See In re Baby Girl D., 517 A.2d 925, 929 (Pa. 1986) (construing the "reasonable lying-in expenses" language to mean that Lamaze classes, prenatal care, and sonograms are not chargeable to the adopting parents to reimburse for expenses on behalf of the natural mother). The court in Taylor relied on this holding in denying a birth mother reimbursement for such expenses from the birth father. 211 S.W.3d at 537.
137. See Taylor, 211 S.W.3d at 537 (holding that lying-in expenses "normally would not include items such as maternity clothes, lost wages, or counseling").
138. See 750 ILL. COMP. STAT. ANN. 45/14 (West 2009).
139. IOWA CODE ANN. § 600B.1 (West 2001).
140. KY. REV. STAT. ANN. § 406.011 (West 1999).
141. ME. REV. STAT. ANN. tit. 19-A, § 1552 (1998 & Supp. 2009).
142. MASS. ANN. LAWS ch. 209C, § 9 (LexisNexis 2000 & Supp. 2010).
143. MICH. COMP. LAWS ANN. § 722.712 (West 2002 & Supp. 2010).
144. MISS. CODE ANN. § 93-9-7 (2004).
145. NEB. REV. STAT ANN. § 43-1407 (LexisNexis 2008).
146. N.J. STAT. ANN. § 9:17-45 (West 2002).
147. N.C. GEN. STAT. ANN. § 49-15 (West 2009).
148. OR. REV. STAT. ANN. § 109.155 (West 2009).
149. R.I. GEN. LAWS § 15-8-1 (2003).
150. UTAH CODE ANN. § 78B-15-305 (2008).
151. W. VA. CODE ANN. § 48-1-244 (LexisNexis 2009).
152. See ALA. CODE § 26-17-636(g) (LexisNexis 2009).
153. ARK. CODE ANN. § 9-10-110 (2009).
154. ARIZ. REV. STAT. § 25-809 (LexisNexus 2007).
155. CAL. FAM. CODE § 7637 (West 2009).
156. COLO. REV. STAT. ANN. § 19-4-116(3)(a) (West 2009).
157. CONN. GEN. STAT. ANN. § 46b-172a (West 2009) (when a father comes forward as parent).
158. FLA. STAT. ANN. § 742.031(1) (Supp. 2005).
159. HAW. REV. STAT. ANN. § 584-15(c) (LexisNexis 2005).
160. KAN. STAT. ANN. § 38-1121(c) (2009).
161. MD. CODE. ANN., FAM. LAW § 5-1033 (LexisNexis 2006).
162. MINN. STAT. ANN. § 257.66(3) (West 2007).
163. MO. ANN. STAT. § 210.841 (West 2004).
164. MONT. CODE ANN. § 40-6-116 (2009).
165. NEV. REV. STAT. ANN. § 126.161 (LexisNexis 2004 & Supp. 2007).
166. N.D. CENT. CODE § 14-20-57 (2009).
167. OHIO REV. CODE ANN. § 3111.13 (West 2005).
168. TENN. CODE. ANN. § 36-2-311 (2005).
169. TEX. FAM. CODE ANN. § 160.636(g) (Vernon 2008).
170. VA. CODE ANN. § 20-49.8(A) (2008).
171. WASH. REV. CODE ANN. § 26.26.130 (West 2005).
172. WIS. STAT. ANN. § 767.89 (West 2009).
173. AM. LAW INST., PRINCIPLES OF THE LAW AND FAMILY DISSOLUTION: ANALYSIS AND RECOMMENDATIONS § 3.01 (2002) ("Historically, the law did not treat children of formal and informal relationships equally with respect to parental support. In a series of cases beginning in the late 1960s, the United States Supreme Court held that most legal distinctions between marital and nonmarital children violate the equal-protection clause of the Fourteenth Amendment. Accordingly, it is now generally accepted that children of informal and formal relationships must be treated equally with respect to the amount and duration of child support.").
174. See Jeffery W. Santema, Annotation, Liability of Father for Retroactive Child Support on Judicial Determination of Paternity, 87 A.L.R.5th 361, § I (2002) ("The parents of a child born out of wedlock have an obligation to support the child....It is the fact of paternity or maternity, not that of marriage, that obligates the parents to nourish and rear the child. Hence, the support rights of children born out of wedlock are the same as those of children born in wedlock.").
175. See Coxwell v. Matthews, 435 S.E.2d 33, 34 (Ga. 1993) (holding that "the duty to protect and maintain a child includes the duty to ensure that the child receives adequate medical care prior to and during birth").
176. This same case mentions the lost earnings that pregnancy may spell for a woman, but it nevertheless confines the man's obligation to prenatal and birthing expenses. See Coxwell v. Matthews, 435 S.E.2d 33, 34 (Ga. 1993). (stating that were the court "to hold that the father of an out-of-wedlock child has no obligation to pay the birthing expenses of his child, that duty would fall either on the mother, whose condition, in some circumstances, might impair her earning ability, or on the state").
177. The concurrence in Coxwell also suggests that pre-natal and birthing expenses should be shared as a matter of gender equity, although it does not recognize that gender equity may translate into a much broader liability. See Coxwell v. Matthews, 435 S.E.2d 33, 34 (Ga. 1993). at 35 (Sears-Collins, J., concurring) ("A healthy pregnancy and birth are essential for a healthy child. Therefore, the conclusion is inescapable that the duty to provide for a child's maintenance and protection incorporates expenses incurred by the mother due to pregnancy and birth. This is especially true in view of (a) changing family roles and the modern economic partnership concept of parenthood, (b) growing recognition that the relationship between a father and his child is important for more reasons than the provision of food, clothing, and shelter, and (c) efforts in recent years to eliminate sex discrimination.").
178. Though technological developments have made it possible to conduct genetic testing in utero, such testing poses a risk to the health of both mother and fetus. See Am. Pregnancy Ass'n, Paternity Testing, http://www.americanpregnancy.org/prenataltesting/paternitytesting.html (last visited May 29, 2010).
179. For this reason, a court may not order genetic testing until the child is born. A mother may, however, volunteer to pursue a prenatal test for paternity. See UNIF. PARENTAGE ACT § 502(c) & comments (amended 2002), available at http://www.law.upenn.edu/bll/archives/ulc/upa/final2002.pdf.
180. But see C. v. L., 305 N.Y.S.2d 69, 72 (N.Y. Fam. Ct. 1969) (holding that the termination of pregnancy did not divest a woman of her right to proceed with such a claim and that the cost of a therapeutic (i.e., medically indicated) abortion can be awarded at the court's discretion as a "reasonable expense" in connection with pregnancy).
181. see also Stockton v. Oldenburg, 713 N.E.2d 259, 266 (Ill. App. Ct. 1999) (Myerscough, J., concurring in part and dissenting in part) (arguing there is a broad scope to reasonable expense in connection with pregnancy that encompasses therapeutic abortion).
182. But see Alice D. v. William M., 450 N.Y.S.2d 350, 353 (N.Y. Civ. Ct. 1982) (requiring actual birth as a predicate for reasonable expense award and differentiating itself from C. v. L. at 353: "mandating an actual birth as a predicate for relief in the Family Court is sound").
183. DEL. CODE ANN. tit. 13, § 504 (2009).
184. The New York legislature has also created a separate duty that the father owes to the mother: "The father is liable to pay the reasonable expenses of the mother's confinement and such reasonable expenses in connection with her pregnancy as the court in its discretion may deem proper." FAM. CT. ACT § 514 (2010).
185. see Tuer v. Niedoliwka, 285 N.W.2d 424, 426-27 (Mich. Ct. App. 1979) (distinguishing between a woman's right to reimbursement for a share of her pregnancy and confinement expense-a right which she may contract away-and her child's right to support-a right which she may not contract away).
186. Anonymous v. Anonymous, 265 N.Y.S.2d 827 (N.Y. Fam. Ct. 1965) (holding that Section 514 of the New York Family Court Act authorizes a court to require the father of a child involved in a filiation proceeding to pay the cost of necessary psychiatric care where there is a patently clear causal relationship between the need for psychotherapy and the mother's pregnancy, confinement, and recovery (but refusing to do so in the case because the mother failed to sufficiently establish this relationship)).
187. See Div. of Child Support Enforcement ex rel. Harper v. Barrows, 570 A.2d 1180, 1184 (Del. 1990) (stating that the court has the authority to require the incarcerated father of a child born out of wedlock to pay for post-natal expenses incurred by the mother relating to the birth of their child in the amount of $620).
188. DCES/J.O'C. v. D.U., 2009 Del. Fam. Ct. LEXIS 3, at *6 (Del. Fam. Ct. Mar. 18, 2009) (discussing only out-of-pocket delivery expenses in connection with a man's pregnancy-related obligation).
189. In this case, however, the obligation fell under a parallel, retroactive child support provision (Section 513) rather than under Section 504. DCES/J.O'C. v. D.U., 2009 Del. Fam. Ct. LEXIS 3, at *6 (Del. Fam. Ct. Mar. 18, 2009). Nevertheless, though the case addresses the difference in the statute of limitations applicable to the two provisions, it makes no mention of the possibility that a different monetary outcome would result from an obligation falling under one section or the other.
190. DEL. CODE ANN. tit. 13, § 513(a)(3) (2009).
191. see also DCES/J.O'C., 2009 Del. Fam. Ct. LEXIS at 5 (explaining that the Delaware statute treats pregnancy-related medical bills and retroactive child support as separate obligations under Section 504 and Section 513(a)(3) respectively, but that "where a duty of support has been determined, the Court may order the obligor to pay the cost of prenatal, postnatal and lying-in expenses, allowing the expenses Mother claims to fall under child support, not financial support for Mother").
192. For discussions of sex-equality based arguments for reproductive freedom, see CATHARINE A. MACKINNON, Privacy v. Equality: Beyond Roe v. Wade, in FEMINISM UNMODIFIED 93 (1987).
193. Sylvia A. Law, Rethinking Sex and the Constitution, 132 U. PA. L. REV. 955, 955-56 (1984), at 978.
194. Donald H. Regan, Rewriting Roe v. Wade, 77 MICH. L. REV. 1569, 1621-22 (1979).
195. Reva Siegel, Reasoning from the Body: A Historical Perspective on Abortion Regulation and Questions of Equal Protection, 44 STAN. L. REV. 261, 374-75 (1992).
196. Reva B. Siegel, Sex Equality Arguments for Reproductive Rights: Their Critical Basis and Evolving Constitutional Expression, 56 EMORY L.J. 815 (2007).
197. Eisenstadt v. Baird, 405 U.S. 438, 453 (1972) (guaranteeing access to contraception regardless of marital status).
198. Roe v. Wade, 410 U.S. 113, 153 (1973) (guaranteeing a woman's right to a first trimester abortion).
199. ANN CRITTENDEN, THE PRICE OF MOTHERHOOD 234 (2001). Crittenden's book provided the inspiration for the title of this Article.
200. See A.A. Ewies, Levonorgestrel-Releasing Intrauterine System-The Discontinuing Story, 36 GYNECOL ENDOCRINOL 1 (2009).
201. Chrisandra L. Shufelt & C. Noel Bairey Merz, Contraceptive Hormone Use and Cardiovascular Disease, 53 J. AM. C. CARDIOLOGY 221 (2009).
202. Sasitorn Siritho et al., Risk of Ischemic Stroke Among Users of the Oral Contraceptive Pill, 34 STROKE 1575 (2003).
203. Nat'l Cancer Inst., Oral Contraceptives and Cancer Risk: Question and Answers, May 4, 2006, http://www.cancer.gov/cancertopics/factsheet/Risk/oral-contraceptives (linking oral contraceptives to an increase in some forms of cancer and a decrease in others).
204. Oral Contraceptives Linked to Asthma Risk, REUTERS, Mar. 27, 2009, http://www.reuters.com/article/healthNews/idUSTRE52Q6PA20090327.
205. Pros and Cons of the Pill Tricky For Black Women, REUTERS, June 30, 2008, http://www.reuters.com/ article/healthNews/idUSTON07346120080630 (describing a study showing black women at a lower risk of heart disease and diabetes from oral contraceptives than white women).
206. Geraldine Sealey, Why I Hate the Pill, SALON.COM, May 3, 2010, http://www.salon.com/life/feature/2010/05/03/pill_pushback ("Although a libido-destroying pill does wonders to lower your pregnancy risk, it's also done a number on my relationships, self-esteem and emotional well-being.").
207. Ads marketing the newest invention-the "ring" (a plastic device that releases hormones directly into the vagina)-are especially misleading. The ads-which feature the slogan: "Let Freedom Ring!"-emphasize the fact that the ring contains a lower dose of hormones than most oral contraceptives. This is true, but studies suggest that the mode of delivery may increase certain risks. Since the ring, like the patch, releases hormones directly into the blood stream, the net amount of hormones absorbed by the body may be higher than those absorbed by women taking hormones orally. The company that manufactures the ring is facing over 100 pending lawsuits. See Stephanie Mencimer, Is NuvaRing Dangerous?, MOTHER JONES, May/June 2009, http://www.motherjones.com/environment/2009/05/ nuvaring-dangerous.
208. Similarly, Bayer ads presenting the pill as a beneficial "lifestyle drug"-to combat acne, headaches, and anxiety-resulted in a lawsuit by the Food and Drug Administration and the attorneys general of twenty-seven states claiming Bayer underplayed the drug's dangers. The case ended in a settlement requiring that the company launch a $20 million corrective ad campaign. See Natasha Singer, A Birth Control Pill That Promised Too Much, N.Y. TIMES, Feb. 11, 2009, at B1.
209. Planned Parenthood, Birth Control Pills, http://www.plannedparenthood.org/health-topics/birth-control/birth-control-pill-4228.htm (last visited Aug. 28, 2010).
210. See Sharon Lerner, Why Doesn't Health Care Cover Birth Control?, DOUBLEX, Nov. 12, 2009, http://www.doublex.com/section/news-politics/why-doesnt-healthcare-cover-birth-control.
211. Geraldine Sealey, Erections Get Insurance; Why Not the Pill?, ABC NEWS, June 19, 2002, http://abcnews.go.com/ US/story?id=91538.
212. JACQUELINE E. DARROCH, JENNIFER J. FROST & LISA REMEZ, GUTTMACHER INST., IN BRIEF: IMPROVING CONTRACEPTIVE USE IN THE UNITED STATES 1, 6 (2008), available at http://www. guttmacher.org/pubs/2008/05/09/ImprovingContraceptiveUse.pdf ("More than one in five public providers report that the majority of their contraceptive clients have difficulty paying for visits, and another third think that such difficulties affect a sizable proportion of clients. Among private providers, more than half believe that a sizable minority of their clients have payment problems.").
213. MARGARET SANGER, WOMAN AND THE NEW RACE 100 (1920).
214. See Project Voice, http://www.theabortionproject.org (last visited Aug. 28, 2010).
215. WebMD, Emotional Reactions After an Abortion, http://www.webmd.com/hw-popup/emotional-reactions-after-an-abortion (last visited Aug. 28, 2010) ("Natural hormonal changes that occur in your body during pregnancy are affected by an abortion. These hormonal changes can make you feel more emotional than usual. You may experience a spectrum of feelings, ranging from sadness, anger, and regret to guilt or relief. In fact, hormonal changes can cause depression symptoms, including sleeplessness (insomnia), sadness, tearfulness, anxiety, hopelessness, irritability, and poor concentration.").
216. I do not, however, mean to suggest that the emotional aspects of the procedure justify abortion restrictions. For discussions of debates surrounding the woman-protective rationale for restricting abortion, see Reva B. Siegel, The Right's Reasons: Constitutional Conflict and the Spread of Woman-Protective Antiabortion Argument, 57 DUKE L.J. 1641 (2008).
217. and Jeannie Suk, The Trajectory of Trauma: Bodies and Minds of Abortion Discourse, 110 COLUM. L. REV. 1193 (2010).
218. Am. Pregnancy Ass'n, Unplanned Pregnancy: Possible Physical Side Effects (2007), http://www.americanpregnancy.org/unplannedpregnancy/possiblesideeffects.html (last visited Aug. 28, 2010).
219. WebMD, Women's Health, Abortion-Before, During, and After an Abortion: When to Call a Doctor, http://women.webmd.com/tc/abortion-before-during-and-after-an-abortion-when-to-call-adoctor (last visited Aug. 28, 2010).
220. See ELIZABETH RING-CASSIDY & IAN GENTLES, WOMEN'S HEALTH AFTER ABORTION: THE MEDICAL AND PSYCHOLOGICAL EVIDENCE (2002).
221. Abortion can lead to many other harmful side effects. See CUNNINGHAM ET AL., WILLIAMS OBSTETRICS 247 (22d ed. 2005) ("Although serious complications of abortion most often occur with criminal abortion, even spontaneous abortion and legal elective abortion continue to be associated with severe and even fatal infections. Severe hemorrhage, sepsis, bacterial shock, and acute renal failure have all developed in association with abortion but at much lower frequency. Uterine infection is the usual outcome, but parametritis, peritonitis, endocarditis, and septicemia may all occur." (citations omitted)).
222. Joel Brind et al., Induced Abortion as an Independent Risk Factor for Breast Cancer: A Comprehensive Review and Meta-Analysis, 50 J. EPIDEMIOLOGY & CMTY. HEALTH 481 (1996).
223. David A. Grimes & Mitchell D. Creinin, Induced Abortion: An Overview for Internists, 140 ANNALS INTERNAL MED. 620 (2004).
224. One out of 1,000,000 American women dies as a result of having an abortion at or before eight weeks. Additionally, "[t]he risk of death associated with abortion increases with the length of pregnancy... to one per 29,000 at 16-20 weeks-and one per 11,000 at 21 or more weeks." GUTTMACHER INST., FACTS ON INDUCED ABORTION IN THE UNITED STATES 2 (2010), available at http://www.guttmacher.org/pubs/fb_induced_abortion.pdf.
225. Earlier studies indicated that the risk of maternal death from abortion was much higher at all lengths of gestation. See CUNNINGHAM ET AL., WILLIAMS OBSTETRICS 247 (22d ed. 2005), at 247 (relying on studies using data collected before 2004, the authors conclude that "[l]egally induced abortion, performed by trained gynecologists, especially when performed during the first 2 months of pregnancy, has a mortality rate of only 0.7 per 100,000 procedures. The relative risk of dying as the consequence of abortion approximately doubles for each 2 weeks after 8 weeks' gestation").
226. For a more partisan view of the medical risks associated with abortion, see JOHN C. WILLKE & BARBARA H. WILLKE, WHY WE CAN'T LOVE THEM BOTH (1997), available at http://www.abortionfacts.com/ online_books/love_them_both/why_cant_we_love_them_both.asp.
227. See Planned Parenthood of Se. Pa. v. Casey, 505 U.S. 833, 874 (1992) (holding that states may enact restrictions so long as these do not unduly burden women seeking an abortion).
228. Webster v. Reprod. Health Servs., 492 U.S. 490, 511 (1989) (holding that non-life-saving abortions for women prepared to pay full cost may be banned in public facilities).
229. Harris v. McRae, 448 U.S. 297, 316 (1980) (upholding a ruling allowing funding for medically necessary abortions to be denied unless the mother's life is in danger).
230. See GUTTMACHER INST., FACTS ON INDUCED ABORTION IN THE UNITED STATES 2 (2010), available at http://www.guttmacher.org/pubs/fb_induced_abortion.pdf ("Eighty-seven percent of all U.S. counties lacked an abortion provider in 2005; 35% of women live in those counties....In 2005, the cost of a nonhospital abortion with local anesthesia at 10 weeks' gestation ranged from $90 to $1,800; the average amount paid was $413....Fifty-eight percent of abortion patients say they would have liked to have had their abortion earlier. Nearly 60% of women who experienced a delay in obtaining an abortion cite the time it took to make arrangements and raise money. Teens are more likely than older women to delay having an abortion until after 15 weeks of pregnancy, when the medical risks associated with abortion are significantly higher....Congress has barred the use of federal Medicaid funds to pay for abortions, except when the woman's life would be endangered by a full-term pregnancy or in cases of rape or incest. Seventeen states use public funds to pay for abortions for some poor women, but only four do so voluntarily; the rest do so under a court order.").
231. Germaine Greer, The Backlash Myth, NEW REPUBLIC, Oct. 5, 1992, at 21.
232. Greer continues, "[T]he choice to end [a pregnancy] can only be a genuine choice if the pregnant woman has other alternatives. If she will lose her lodgings and her job or her educational opportunities if she has a baby, then she has no choice at all. If her boyfriend threatens to leave her if she does not accept termination; if her parents threaten to make her a ward of court or to disown her... her right to choose is being ignored." Germaine Greer, The Backlash Myth, NEW REPUBLIC, Oct. 5, 1992. at 23.
233. The reproductive choices relevant to this Article relate to pregnancy prevention and termination. For a discussion of the harms associated with choices made possible by reproductive technologies (IVF and surrogacy), see JANICE G. RAYMOND, WOMEN AS WOMBS: REPRODUCTIVE TECHNOLOGIES AND THE BATTLE OVER WOMEN'S FREEDOM (1995).
234. See Planned Parenthood of Central Mo. v. Danforth, 428 U.S. 52, 71 (1976).
235. Planned Parenthood of Central Mo. v. Danforth, 428 U.S. 52, 71 (1976) (holding unconstitutional the Missouri statute requiring spousal consent to an abortion, and noting that "[i]nasmuch as it is the woman who physically bears the child and who is the more directly and immediately affected by the pregnancy [relative to the man], as between the two, the balance [of the decision whether to abort] weighs in her favor").
236. Stephen K. v Roni L., 164 Cal. Rptr. 618, 620 (Cal. Ct. App. 1980) ("[A]lthough Roni may have lied and betrayed the personal confidence reposed in her by Stephen, the circumstances and the highly intimate nature of the relationship wherein the false representations may have occurred, are such that a court should not define any standard of conduct therefor.").
237. C.A.M. v. R.A.W., 568 A.2d 556, 556 (N.J. Super. Ct. App. Div. 1990) (affirming the lower court's entry of summary judgment in favor of a father who had misrepresented a vasectomy prior to consensual intercourse).
238. Douglas R. v. Suzanne M., 487 N.Y.S.2d 244, 246 (App. Div. 1985) (dismissing an action by a man claiming he was defrauded by a woman who removed an intrauterine contraceptive device without informing him).
239. But see Barbara A. v. John G., 193 Cal. Rptr. 422, 431 (Cal. Ct. App. 1983) (upholding a battery damages award to a woman whose reliance on a man's fraudulent misrepresentation of sterility resulted in an ectopic pregnancy which ended in miscarriage and surgery rendering her sterile).
240. Alice D. v. William M., 450 N.Y.S.2d 350, 356-57 (N.Y. Civ. Ct. 1982) (allowing a woman to recover damages against a former partner for the costs of an abortion, loss of earning potential, and pain and suffering based on negligent misrepresentation).
241. Martha Chamallas, Consent, Equality, and the Legal Control of Sexual Conduct, 61 S. CAL. L. REV. 777, 830-35 (1988).
242. I. Glenn Cohen, The Right Not to Be a Genetic Parent?, 81 S. CAL. L. REV. 1115, 1158 (2008).
243. Jill E. Evans, In Search of Paternal Equity: A Father's Right to Pursue a Claim of Misrepresentation of Fertility, 36 LOY. U. CHI. L.J. 1045, 1065-92 (2005).
244. Jane E. Larson, "Women Understand So Little, They Call My Good Nature 'Deceit'": A Feminist Rethinking of Seduction, 93 COLUM. L. REV. 374, 381 (1993), at 380.
245. Larson argues that "physical and emotional injuries caused by deceptive inducement into sex" should be compensable through a "sexual fraud" tort, a revitalized, modernized, feminist variation on the common law tort of seduction. Larson's proposal is limited to "intentional, harmful misrepresentation made for the purpose of gaining another's consent to sexual relations." Jane E. Larson, "Women Understand So Little, They Call My Good Nature 'Deceit'": A Feminist Rethinking of Seduction, 93 COLUM. L. REV. 374, 381 (1993), at 380.
246. Paula C. Murray & Brenda J. Winslett, The Constitutional Right to Privacy and Emerging Tort Liability for Deceit in Inter-personal Relationships, 1986 U. ILL. L. REV. 779, 780 (arguing that where a woman intentionally deceives her partner into impregnating her, public policy considerations regarding the child's interest should not absolve the woman of all liability towards the father).
247. Michelle Oberman, Sex, Lies, and the Duty to Disclose, 47 ARIZ. L. REV. 871, 887-89 (2005).
248. Lea VanderVelde, The Legal Ways of Seduction, 48 STAN. L. REV. 817, 893 (1996) (arguing with regards to all harmful forms of "sexual connection," including sexual fraud).
249. Joshua Kleinfeld, Comment, Tort Law and In Vitro Fertilization: The Need for Legal Recognition of "Procreative Injury," 115 YALE L.J. 237, 239-40 (2005).
250. Anne M. Payne, Annotation, Sexual Partner's Tort Liability to Other Partner for Fraudulent Misrepresentation Regarding Sterility or Use of Birth Control Resulting in Pregnancy, 2 A.L.R.5th 301 (1992).
251. One study of unmarried parents in Oakland, California, revealed that most unmarried parents were romantically involved when their child was born and that about half were living together. SARAH MCLANAHAN ET AL., PUB. POLICY INST. OF CAL., FRAGILE FAMILIES ONE YEAR LATER: OAKLAND, CALIFORNIA 7 (2003), available at http://www.ppic.org/content/pubs/op/op_1002smop.pdf.
252. Approximately 80 percent of the mothers in the survey "reported that the father had contributed financial support or helped in other ways (such as providing transportation) during the pregnancy." SARAH MCLANAHAN ET AL., PUB. POLICY INST. OF CAL., FRAGILE FAMILIES ONE YEAR LATER: OAKLAND, CALIFORNIA 7 (2003), available at http://www.ppic.org/content/pubs/op/op_1002smop.pdf. at 10.
253. see also MAUREEN R. WALLER, MY BABY'S FATHER: UNMARRIED PARENTS AND PATERNAL RESPONSIBILITY 2-3 (2002) ("Approximately 33 percent of all births in the United States now occur to unmarried parents... [and] about half of these parents are living together at the time of their child's birth." (citation omitted)).
254. See JACQUELINE E. DARROCH, JENNIFER J. FROST & LISA REMEZ, GUTTMACHER INST., IN BRIEF: IMPROVING CONTRACEPTIVE USE IN THE UNITED STATES 1, 6 (2008), available at http://www. guttmacher.org/pubs/2008/05/09/ImprovingContraceptiveUse.pdf, at 1 ("Slightly more than half of unintended pregnancies occur among women who were not using any method of contraception in the month they conceived, and more than four in 10 occur among women who used their method inconsistently or incorrectly. Only one in 20 are attributable to method failure.").
255. EILEEN L. MCDONAGH, BREAKING THE ABORTION DEADLOCK 69-71 (1996), at 52-53 ("The reason women become pregnant, therefore, is not because a high probability of pregnancy is associated with any single incident of unprotected sexual intercourse, or even with a month of unprotected sex. Rather, it is because couples engage in multiple acts of sexual intercourse, thereby increasing a woman's exposure to the risk of pregnancy.").
256. Surveys of men in abortion clinic waiting rooms reveal that most men pay for some or all of the procedure. The studies make no mention of additional costs like lost wages. See, e.g., ARTHUR B. SHOSTAK, GARY MCLOUTH & LYNN SENG, MEN AND ABORTION: LESSONS, LOSSES, AND LOVE 36 (1984).
257. Jennifer A. Reich & Claire D Brindis, Conceiving Risk and Responsibility: A Qualitative Examination of Men's Experiences of Unintended Pregnancy and Abortion, 5 INT'L J. MEN'S HEALTH 133, 145 (2006).
258. Note, however, that data on how many men accompany their partner to the clinic are inconsistent. Compare Jennifer A. Reich & Claire D Brindis, Conceiving Risk and Responsibility: A Qualitative Examination of Men's Experiences of Unintended Pregnancy and Abortion, 5 INT'L J. MEN'S HEALTH 133, 145 (2006), at 135 ("One recent study found that only 22-25% of women came or left the abortion procedure with the man by whom they became pregnant." (citation omitted)).
259. with Geoffrey P. Miller, Custody and Couvade: The Importance of Paternal Bonding in the Law of Family Relations, 33 IND. L. REV. 691, 711 n.111 (2000) (finding that men accompanied their partners to abortion clinics approximately half of the time (citation omitted)).
260. Such imbalances may often be gendered in nature. Hirshman and Larson argue that "[i]n hetero-sexual exchanges, the male and female sexual players start from a baseline of physical inequality of strength, size and vulnerability to pregnancy." LINDA R. HIRSHMAN & JANE E. LARSON, HARD BARGAINS: THE POLITICS OF SEX 281 (1998), at 22.
261. Accordingly, a just sex code should "establish baselines that moderate the downward spiral of unequal bargaining" by "shifting the burden of silence onto the stronger player." LINDA R. HIRSHMAN & JANE E. LARSON, HARD BARGAINS: THE POLITICS OF SEX 281 (1998). at 2, 283.
262. But even where the imbalance does not fall along gendered lines, the same principle holds: the baseline should protect the weaker party to the "sexual bargain." LINDA R. HIRSHMAN & JANE E. LARSON, HARD BARGAINS: THE POLITICS OF SEX 281 (1998). at 267-68.
263. See Chien-Chung Huang & Wen-Jui Han, Child Support Enforcement and Sexual Activity of Male Adolescents, 69 J. MARRIAGE & FAMILY 763, 772 (2007) [hereinafter Huang & Han, Child Support Enforcement].
264. see also Chien-Chung Huang & Wen-Jui Han, Perceptions of Child Support and Sexual Activity of Adolescent Males, 27 J. OF ADOLESCENCE 731 (2004) (discussing empirical studies relating to teen sexual activity, use of contraceptives, and pregnancy).
265. A recent study suggests that child support enforcement decreases the incidence of abortion. Jocelyn Crowley, Radha Jagannathan, & Galo Falchettore, The Effect of Child Support Enforcement on Nonmarital Births and Abortion in the United States (unpublished manuscript) (on file with author).
266. For data on the higher incidence of abortion among poor women, see RACHEL K. JONES, LAWRENCE B. FINER & SUSHEELA SINGH, GUTTMACHER INST., CHARACTERISTICS OF U.S. ABORTION PATIENTS, 2008, at 1, 9 (2010), available at http://www.guttmacher.org/pubs/US-Abortion-Patients.pdf ("Poor women were overrepresented among abortion patients. Their relative abortion rate was more than twice that of all women in 2008... and more than five times that of women at 200% or more of the poverty level....").
267. Annie Murphy Paul, Is the Recession Causing More Abortions?, SLATE, May 15, 2009, http://www.doublex.com/section/health-science/recession-causing-more-abortions?page=0,0 (arguing that "financial hardship has been an ever-present motivation for ending a pregnancy").
268. For a broader argument that family law should recognize and support friendships that do not resemble marriage or marriage-like relationship, see Laura A. Rosenbury, Friends With Benefits?, 106 MICH. L. REV. 189 (2007).
269. See Robin West, Jurisprudence and Gender, 55 U. CHI. L. REV. 1, 2 (1988).
270. A related theory has been advanced by Linda Hirshman and Jane Larson, who employ the term "libertinism" to describe the individualistic sexual ideology that has dominated sexual politics since the 1960s. See LINDA R. HIRSHMAN & JANE E. LARSON, HARD BARGAINS: THE POLITICS OF SEX 281 (1998), at 10, 211.
271. "[W]hat separates us," West quotes Michael Sandel as saying, "is in some important sense prior to what connects us....We are distinct individuals first, and then we form relationships and engage in co-operative arrangements with others." Robin West, Jurisprudence and Gender, 55 U. CHI. L. REV. 1, 2 (1988), at 2.
272. Thus, under the "separation thesis," "the inevitability of the individual's material separation from the 'other,' entails, first and foremost, an existential state of... freedom: because the individual is separate from the other, he is free of the other." Robin West, Jurisprudence and Gender, 55 U. CHI. L. REV. 1, 2 (1988) at 5.
273. Robin West, Jurisprudence and Gender, 55 U. CHI. L. REV. 1, 2 (1988) at 2.
274. see also LINDA R. HIRSHMAN & JANE E. LARSON, HARD BARGAINS: THE POLITICS OF SEX 281 (1998), at 10 (arguing that the individualist perspective of "libertine sexual deregulation" in the 1960s "turned women into men, sexually female, but with all the other characteristics of men: strength, independence, emotional control and separation from the consequences of reproduction").
275. Robin West, Jurisprudence and Gender, 55 U. CHI. L. REV. 1, 2 (1988), at 2-3.
276. See Robin L. West, The Difference in Women's Hedonic Lives: A Phenomenological Critique of Feminist Legal Theory, 15 WIS. WOMEN'S L.J. 149, 210 (2000) ("The experience of being human, for women, differentially from men, includes the counter-autonomous experience of a shared physical identity between woman and fetus, as well as the counter-autonomous experience of the emotional and psychological bond between mother and infant. Our reproductive role renders us non-autonomous in a second, less obvious, but ultimately more far-reaching sense. Emotionally and morally women may benefit from the dependency of the fetus and the infant upon us. But materially we are more often burdened than enriched by that dependency. And because we are burdened, we differentially depend more heavily upon others, both for our own survival, and for the survival of the children who are part of us. Women, more than men, depend upon relationships with others, because the weakest of human beings-infants-depend upon us. Thus, motherhood leaves us vulnerable: a woman giving birth is unable to defend herself against aggression; a woman nursing an infant is physically exposed; a woman nurturing and feeding the young is less able to feed herself. Motherhood leaves us unequal....To the considerable degree that our potentiality for motherhood defines ourselves, women's lives are relational, not autonomous.").
277. West believes that both liberal and radical feminists have mistakenly adopted autonomy as their ultimate goal without asking whether it correlates with women's experiences, desires, or capacity for happiness. She views liberal feminists' commitment to increasing women's choices and radical feminists' commitment to increasing women's power as both essentially assimilationist; they "share a vision of human being, and therefore of our subjective well-being, as 'autonomous'" rather than connected or "relational." Robin L. West, The Difference in Women's Hedonic Lives: A Phenomenological Critique of Feminist Legal Theory, 15 WIS. WOMEN'S L.J. 149, 210 (2000) at 209-10.
278. See Robin West, Jurisprudence and Gender, 55 U. CHI. L. REV. 1, 2 (1988), at 9-12.
279. see also ALLAN G. JOHNSON, THE GENDER KNOT: UNRAVELING OUR PATRIARCHAL LEGACY 56 (1997) ("Patriarchy is grounded in a Great Lie that the answer to life's needs is disconnection, competition, and control rather than connection, sharing, and cooperation. The Great Lie separates men from what they need most by encouraging them to be autonomous and disconnected when in fact human existence is fundamentally relational. What is a 'me' without a 'you,' a 'mother' without a 'child,' a 'teacher' without a 'student'? Who are we if not our ties to other people-'I am... a father, a husband, a worker, a friend, a son, a brother'? But patriarchal culture turns the truth inside out and 'self-made-man' goes from oxymoron to cultural ideal." (ellipsis in original)).
280. See Robin West, Jurisprudence and Gender, 55 U. CHI. L. REV. 1, 2 (1988), at 50-58 (referencing the position of critical legal theorists Roberto Unger and Duncan Kennedy that the essential human condition is defined by a fundamental contradiction between connection and separation).
281. see also Robin West, Jurisprudence and Gender, 55 U. CHI. L. REV. 1, 2 (1988), at 70-71.
282. West argues that the separation thesis is drastically untrue of women and not entirely true of men either: "First, it is not true materially. Men are connected to another human life prior to the cutting of the umbilical cord. Furthermore, men are some-what connected to women during intercourse....Nor is the separation thesis necessarily true of men existentially....[M]en can connect to other human life. Men can nurture life. Men can mother. Obviously, men can care, and love, and support, and affirm life....On the flip side, the 'connection thesis' is also not entirely true of women, either materially or existentially. Not all women become pregnant, and not all women are sexually penetrated. Women can go through life unconnected to other human life. Women can also go through life fundamentally unconcerned with other human life." Robin West, Jurisprudence and Gender, 55 U. CHI. L. REV. 1, 2 (1988), at 70-71.
283. Robin West, Jurisprudence and Gender, 55 U. CHI. L. REV. 1, 2 (1988), at 52.
284. Of course, not everybody wants the same thing. Critics of relational feminism have made this clear. See, e.g., JANET HALLEY, SPLIT DECISIONS: HOW AND WHY TO TAKE A BREAK FROM FEMINISM 58-76 (2006) (critiquing West's cultural feminism as a form of feminist supremacy). Some women want to be left alone just as some men want to have sex and never hear from the woman again, even if she bears their child. Some lovers are indeed strangers. But that does not mean that their background assumptions should govern all. The fact that they do puts tremendous pressure on people whose sensibilities run contrary, producing dynamics that can leave both sexes feeling abused and embattled.
285. See 1 AM. JUR. 2D Abortion and Birth Control § 25 (2009).
286. See Planned Parenthood of Se. Pa. v. Casey, 505 U.S. 833, 887-98 (1992); Cecily L. Helms & Phyllis C. Spence, Take Notice Unwed Fathers: An Unwed Mother's Right to Privacy in Adoptions, 20 WIS. WOMEN'S L.J. 1, 20 (2005) (discussing statutes that consider a man who engages in non-marital sex to be on notice of a possible pregnancy).
287. Anne M. Payne, Annotation, Parent's Child Support Liability as Affected by Other Parent's Fraudulent Misrepresentation Regarding Sterility of Use of Birth Control, or Refusal to Abort Pregnancy, 2 A.L.R.5th 337, § 2(a) (1992) "[A] mother's... right to privacy encompasses her decision whether to terminate her pregnancy, and therefore no state may interfere with or regulate the decision to terminate in the first trimester absent a compelling interest outweighing that right. To date, the courts have refused to deem a woman's decision to bear a child despite the objections of the child's father, even where he has offered to pay for an abortion, to create an unconstitutional infringement on the father's federal or state equal protection or due process rights." (citations omitted)).
288. But see Kim Shayo Buchanan, Lawrence v. Geduldig: Regulating Women's Sexuality, 56 EMORY L.J. 1235, 1245 (2007) (discussing fathers' rights advocates' recent calls for a "financial abortion" option, which would free men of the obligation to pay child support where the woman carrying his fetus refuses to abort the pregnancy).
289. John Tierney, Op-Ed., Men's Abortion Rights, N.Y. TIMES, Jan. 10, 2006, at A25.
290. For a discussion of women's limited obligations to notify their partners of a pregnancy, see Mary Beck, Toward a National Putative Father Registry Database, 25 HARV. J.L. & PUB. POL'Y 1031, 1061 (2002) ("State cases have held that notice is not required to unwed fathers who have not established a relationship with the child nor filed with a putative father registry, without regard for the length of time permitted by the deadline....Courts have also upheld the constitutionality of the termination of rights when there is a failure to register regardless of the mother's identification and notification of the father.").
291. The statute of limitations for retroactive child support can be as long as eighteen years from the birth of the child. State ex rel. Reitenour, 807 A.2d 1259, 1262 (N.H. 2002) ("[O]nce paternity has been established, the father of a child born out of wedlock may be liable for past expenses associated with the mother's pregnancy and confinement....Additionally, the applicable statute of limitations permits proceedings to be brought within eighteen years of the date of birth of the child in question.").
292. In New Hampshire, the only limitation on the mother's ability to collect is the statute of limitations. See State ex rel. Reitenour, 807 A.2d 1259, 1262 (N.H. 2002).
293. Maine, by contrast, limits a father's liability to the six-year period preceding the commencement of an action brought within the status of limitations. See ME. REV. STAT. ANN. tit. 19-A, § 1554 (1998).
294. See UNIF. ADOPTION ACT § 3-404, 9 U.L.A. 11 (1994).
295. UNIF. PARENTAGE ACT § 403 (amended 2002), 10 U.L.A. 321.
296. see also Lehr v. Robertson, 463 U.S. 248, 263-64 (1983) (holding that an unwed father's right to be notified of adoption proceedings was contingent upon his filing with the state's putative father registry).
297. Note that indigent mothers applying for public assistance may also be forced to reveal the identity of their child's father as a condition for receiving benefits, but these requirements are grounded on the state's interest in minimizing its own liability rather than on fathers' right to know. See Ann Laquer Estin, Love and Obligation: Family Law and the Romance of Economics, 36 WM. & MARY L. REV. 989, 1070 (1995).
298. An additional communication-related manifestation of the separation thesis concerns the rules governing sexual fraud. As we have seen, victims of sexual fraud have limited recourse against their deceivers. The rationales behind rulings in this area focus on privacy, evidentiary challenges, reluctance to brand a child as "damage," and maintenance of child support obligations. As one opinion put it, absolving a father from the obligation to support his child would "create a new and inferior category of out-of-wedlock child based upon the circumstances of conception and would subordinate the constitutional rights and other interests of the child to those of one of the parents." Inez M. v. Nathan G., 451 N.Y.S.2d 607, 609 (N.Y. Fam. Ct. 1982).
299. see also Perry v. Atkinson, 240 Cal. Rptr. 402, 405-06 (Cal. Ct. App. 1987) (noting that concern over the child elicits a different public policy consideration than a cause of action to recover damages for severe injury resulting from misrepresentations and is not insulated from judicial scrutiny).
300. Thus, child support statutes typically peg the amount of support owed to the child's needs and welfare and to the parents' financial capabilities, "without reference to the fault of either parent in causing conception of the child." Anne M. Payne, Annotation, Parent's Child Support Liability as Affected by Other Parent's Fraudulent Misrepresentation Regarding Sterility of Use of Birth Control, or Refusal to Abort Pregnancy, 2 A.L.R.5th 337, § 2(a) (1992), at § 7(a).
301. Even when an action is brought subsequent to a child support determination and is clearly presented as a claim for personal recovery by one parent against the other, courts tend to interpret the claim as centrally about the child. See C.A.M. v. R.A.W., 568 A.2d 556, 556 (N.J. Super. Ct. App. Div. 1990).
302. Moorman v. Walker, 773 P.2d 887, 888 (Wash. App. 1989), review denied, 779 P.2d 730 (Wash. 1989). Since the child was innocent of the fraud and, courts believe, is likely to suffer should one parent be permitted to recover from the other, they often bar such claims.
303. But focusing on the child ignores a critical relational dimension of the situation. Sex is not typically like an arms-length commercial transaction: it often takes place in the context of a relationship in which people want and expect honesty. And yet, the standards governing sexual relations fall far short of those governing the most impersonal of transactions. As one commentator put it, intimate relationships are governed by a caveat emptor rule, a "norm of nondisclosure [that] represents a degree of complacency with regard to bald-faced lying that is almost unparalleled in the common law governing tort and contract." Michelle Oberman, Sex, Lies, and the Duty to Disclose, 47 ARIZ. L. REV. 871, 887-89 (2005), at 889.
304. Planned Parenthood of Central Mo. v. Danforth, 428 U.S. 52, 71 (1976) (invalidating consent provisions of a Missouri statute, including requiring blanket parental consent as a condition for an unmarried minor's abortion during the first trimester based on insufficient state interest but upholding the constitutionality of the statute's reporting and recordkeeping requirements).
305. Planned Parenthood of Se. Pa. v. Casey, 505 U.S. 833, 895 (1992) (invalidating part of a Pennsylvania statue that required a married woman to provide, among other things, the reason for failure to provide notice of an abortion to her husband as an unconstitutional deviation from the standards established for such reporting provisions under Danforth).
306. Danforth, 428 U.S. at 69.
307. The Court reasoned that "the marital couple is not an independent entity with a mind and heart of its own, but an association of two individuals each with a separate intellectual and emotional makeup. If the right of privacy means anything, it is the right of the individual, married or single, to be free from unwarranted governmental intrusion into matters so fundamentally affecting a person as the decision whether to bear or beget a child." Danforth, 428 U.S. at 70 n.11
308. Quoting Eisenstadt v. Baird, 405 U.S. 438, 453 (1972) (internal quotation marks omitted).
309. Danforth, 428 U.S. at 71.
310. Danforth, 428 U.S. at 71.
311. Casey, 505 U.S. at 901.
312. Casey, 505 U.S. at 895 ("We recognize that a husband has a 'deep and proper concern and interest... in his wife's pregnancy and in the growth and development of the fetus she is carrying."
313. Citing Danforth, 428 U.S. at 69.
314. Casey, 505 U.S. at 877-79.
315. The District Court found that [t]he 'bodily injury' exception could not be invoked by a married woman whose husband, if notified, would, in her reasonable belief, threaten to... retaliate against her in future child custody or divorce proceedings;... inflict psychological intimidation or emotional harm upon her, her children or other persons;... inflict bodily harm on other persons such as children, family members or other loved ones; or... use his control over finances to deprive of necessary monies for herself or her children.
316. Casey, 505 U.S. at 888.
317. Casey, 505 U.S. at 893 ("[T]here are millions of women in this country who are the victims of regular physical and psychological abuse at the hands of their husbands. Should these women become pregnant, they may... have justifiable fears of physical abuse, but may be no less fearful of the consequences of reporting prior abuse to the Commonwealth of Pennsylvania....[Accordingly,] many women who are pregnant as a result of sexual assaults by their husbands will be unable to avail themselves of the exception for spousal sexual assault... because the exception requires that the woman have notified law enforcement authorities within 90 days of the assault, and her husband will be notified of her report once an investigation begins. If anything in this field is certain, it is that victims of spousal sexual assault are extremely reluctant to report the abuse to the government; hence, a great many spousal rape victims will not be exempt from the notification requirement." (citations omitted)).
318. Casey, 505 U.S. at 897.
319. Casey, 505 U.S. at 897.
320. The final holding of the case is correct because healthcare providers at abortion clinics should not be tasked with enforcing communication obligations between lovers that should arise-as I discuss further in Part III-when a woman learns of the fact of conception, not when she prepares to terminate a pregnancy. The clinics' job is to treat women according to their individual decisions.
321. See Jennifer A. Reich & Claire D Brindis, Conceiving Risk and Responsibility: A Qualitative Examination of Men's Experiences of Unintended Pregnancy and Abortion, 5 INT'L J. MEN'S HEALTH 133, 145 (2006), at 135 (noting "men articulate the importance of responsibility and may internalize expectations to behave responsibly").
322. Of the twenty men interviewed, three learned about their partners' pregnancies and abortions after they occurred. Jennifer A. Reich & Claire D Brindis, Conceiving Risk and Responsibility: A Qualitative Examination of Men's Experiences of Unintended Pregnancy and Abortion, 5 INT'L J. MEN'S HEALTH 133, 145 (2006) at 142.
323. These men "said that they would not have done anything to dissuade the woman from having an abortion, but they wished they could have been involved." Jennifer A. Reich & Claire D Brindis, Conceiving Risk and Responsibility: A Qualitative Examination of Men's Experiences of Unintended Pregnancy and Abortion, 5 INT'L J. MEN'S HEALTH 133, 145 (2006) at 142.
324. As one subject put it, "I felt saddened later that she never told me. She never let me in on the process of decision [making]....I think if two people are involved, then two people should be involved in the process. When it comes down to the nitty gritty, I don't think any man could force a woman to have a child, but I think that it should really be talked about and should really be discussed from all angles....I felt that then and I feel it now." Jennifer A. Reich & Claire D Brindis, Conceiving Risk and Responsibility: A Qualitative Examination of Men's Experiences of Unintended Pregnancy and Abortion, 5 INT'L J. MEN'S HEALTH 133, 145 (2006) at 142-43 (alterations in original).
325. PAT CALIFIA, Feminism and Sadomasochism, in PUBLIC SEX: THE CULTURE OF RADICAL 165, 168 (1994).
326. see also Lesley Hall, Pain and the Erotic, PAIN, http://www.wellcome.ac.uk/en/pain/ microsite/culture1.html (last visited Aug. 28, 2010) ("[S]ubcultures of individuals interested in consensual sadomasochistic practices... [have] developed codes of conduct to ensure the safety of participants, embodied in the rubric 'Safe, Sane and Consensual.'... Far from the masochist, or 'bottom', being at the mercy of the sadist, or 'top', it was widely claimed that the bottom controlled the scene by defining its limits; while the top was not indulging in a frenzy of violence, but consciously and attentively deploying certain practices, some of them demanding considerable skill and dexterity.").
327. PAT CALIFIA, Feminism and Sadomasochism, in PUBLIC SEX: THE CULTURE OF RADICAL 165, 168 (1994), at 167-72.
328. PAT CALIFIA, Feminism and Sadomasochism, in PUBLIC SEX: THE CULTURE OF RADICAL 165, 168 (1994). at 168.
329. PAT CALIFIA, Feminism and Sadomasochism, in PUBLIC SEX: THE CULTURE OF RADICAL 165, 168 (1994). at 168.
330. Califia writes that "S/M does not necessarily involve pain" but also acknowledges that "pain is a subjective experience." PAT CALIFIA, Feminism and Sadomasochism, in PUBLIC SEX: THE CULTURE OF RADICAL 165, 168 (1994). at 170.
331. See PAT CALIFIA, Feminism and Sadomasochism, in PUBLIC SEX: THE CULTURE OF RADICAL 165, 168 (1994). at 170. ("Depending on the context, a certain sensation may frighten you, make you angry, urge you on, or get you hot. In many situations, people choose to endure pain or discomfort if the goal for which they are striving makes it worthwhile. Long-distance runners are not generally thought of as perverts, nor is Mother Theresa.").
332. NEST Rules, http://nestgatherings.com/Default.aspx?CatID=119&CatName=NEST%20Rules% 20&%20Waiver (last visited Aug. 15, 2010).
333. See People v. Samuels, 58 Cal. Rptr. 439, 447 (Ct. App. 1967) ("[C]onsent of the victim is not generally a defense to assault or battery, except in a situation involving ordinary physical contact or blows incident to sports such as football, boxing or wrestling....Even if it be assumed that the victim... did in fact... submit to a beating which was so severe as to constitute an aggravated assault, defendant's conduct in inflicting that beating was no less violative of a penal statute obviously designed to prohibit one human being from severely or mortally injuring another.").
334. State v. Collier, 372 N.W.2d 303, 305-07 (Iowa Ct. App. 1985) (affirming Collier's assault conviction in holding that sadomasochism does not qualify as any activity to which a participant can consent to assault).
335. Commonwealth v. Appleby, 402 N.E.2d 1051, 1060 (Mass. 1980) ("The fact that violence may be related to sexual activity (or may even be sexual activity to the person inflicting pain on another...) does not prevent the State from protecting its citizens against physical harm....The general rule is: 'It is settled that to commit a battery upon a person with such violence that bodily harm is likely to result is unlawful, and consent thereto is immaterial.'"
336. Quoting Commonwealth v. Farrell, 78 N.E.2d 697, 705 (Mass. 1948) (emphasis in original).
337. But see People v. Jovanovic, 700 N.Y.S.2d 156, 167-69 (App. Div. 1999) (holding that email communications in which the complainant referred to her prior sadomasochistic activities with third parties tended to establish a likelihood of consent).
338. NEST Rules, http://nestgatherings.com/Default.aspx?CatID=119&CatName=NEST%20Rules% 20&%20Waiver (last visited Aug. 15, 2010).
339. See STEPHANIE COONTZ, MARRIAGE, A HISTORY 34 (2005) ("The story that marriage was invented for the protection of women is still the most widespread myth about the origins of marriage.").
340. STEPHANIE COONTZ, MARRIAGE, A HISTORY 34 (2005) at 31 ("Probably the single most important function of marriage through most of history... was its role in establishing cooperative relationships between families and communities.").
341. see also STEPHANIE COONTZ, MARRIAGE, A HISTORY 34 (2005) at 34-49 (discussing the invention of marriage).
342. NANCY F. COTT, PUBLIC VOWS 15 (2002) ("When the colonies declared independence and joined together in a new nation, a marital metaphor became... compelling....Marriage, being a voluntary and long-sustained bond, provided a ready emblem....As an intentional and harmonious juncture of individuals for mutual protection, economic advantage, and common interest, the marriage bond resembled the social contract that produced government.").
343. E. J. GRAFF, WHAT IS MARRIAGE FOR? 61 (2004) ("Much of medieval European peasant society took it for granted that courting young men and women would go walking all night... so long as the couple married once she was pregnant, which is why roughly a third of brides were pregnant on their wedding day, and why most suits in ecclesiastical courts had to do with 'pre-contracts'-one person insisting that the other, now trying to marry another, had already implicitly married her in some midnight rendezvous....The Church licensed prostitutes' guilds and collected regular dispensation fees for their trade, assuming prostitution to be the only way to stop male lust from overwhelming honorable mothers. Priests took concubines so often that by the late Middle Ages there was actually a Church fee schedule for priests' concubines and bastards.").
344. See Stanley K. Henshaw, Unintended Pregnancy in the United States, 30 FAM. PLAN. PERSP. 24, 27 (1998), available at http://www.guttmacher.org/pubs/journals/3002498.pdf and accompanying text.
345. JOAN JACOBS BRUMBERG, THE BODY PROJECT: AN INTIMATE HISTORY OF AMERICAN GIRLS 143 (1997).
346. Sociologists describe a "hookup culture" on college campuses that leaves students who do not participate in it on the margins of the social scene, describing themselves as "abnormal." KATHLEEN A. BOGLE, HOOKING UP: SEX, DATING, AND RELATIONSHIPS ON CAMPUS 64-71 (2008) (describing particular college students who consciously choose not to "hook up," their motivations for doing so, and the ostracism many who choose this route feel they face).
347. Goodridge v. Dep't of Pub. Health, 798 N.E.2d 941, 995 (Mass. 2003) (Cordy, J., dissenting). The case held that a bar against same-sex marriage violated the state's constitution.
348. Goodridge v. Dep't of Pub. Health, 798 N.E.2d 941, 995 (Mass. 2003) (Cordy, J., dissenting).
349. See Kerry Abrams & Peter Brooks, Marriage as a Message: Same-Sex Couples and the Rhetoric of Accidental Procreation, 21 YALE J.L. & HUMAN. 1, 3-4 (2009) ("Justice Cordy's dissenting opinion [in Goodridge] presented marriage as a necessary channeling of male sexuality to useful and policed reproduction. For Justice Cordy, marriage is an institution designed to create a safe social and legal space for accidental heterosexual reproduction, a space that is not necessary for same-sex couples who, by definition, cannot accidentally reproduce. Following the publication of Goodridge, Cordy's rationale was taken up by the majority in every other state supreme court (saving the California... and Connecticut...), and many state district and appellate courts, that heard a same-sex marriage case. Without marriage, these opinions suggest, heterosexual people would labor under the misimpression that reproduction is acceptable without a long-term commitment to parenting. By limiting marriage to opposite-sex couples-people who might accidentally reproduce through their sexual relations-the state can send a message that marriage is the proper space for reproduction and constrain an unwieldy and dangerous male (hetero)sexuality that would otherwise cause social chaos.").
350. Note however that economically dependent spouses generally have few mechanisms for enforcing their entitlements during marriage. Spouses' economic rights generally vest at divorce. For a discussion of spouses' limited economic rights during an ongoing marriage, see Alicia B. Kelly, Money Matters in Marriage: Unmasking Interdependence in Ongoing Spousal Economic Relations, 47 U. LOUISVILLE L. REV. 113, 144-51 (2008).
351. see also Katharine Silbaugh, Turning Labor into Love: Housework and the Law, 91 NW. U. L. REV. 1, 34 (1996) (Silbaugh explains that spouses' duty of mutual support is "not directly enforceable between the parties when married. The support obligation may be enforceable during a marriage only by third party creditors who may sue one spouse for certain very narrow categories of debts... undertaken by the other."). Even at divorce, while property distribution determinations may take childcare contributions into account, they do not look at pregnancy and the "labor" of childbirth for purposes of determining spouses' contributions to the marriage.
352. See MARTHA ALBERTSON FINEMAN, THE NEUTERED MOTHER, THE SEXUAL FAMILY AND OTHER TWENTIETH CENTURY TRAGEDIES 230-33 (1995), at 228-30 (arguing that marriage and the "sexual family"-i.e., a conception of family focused on sexual affiliation rather than on the mother/child relationship-perpetuate gender inequality).
353. Susan Frelich Appleton, Toward a "Culturally Cliterate" Family Law?, 23 BERKELEY J. GENDER L & JUST. 267, 286-87 (2008), at 296-97 (describing family law's failure to deliver on the presumed promises of marriage).
354. See STEPHANIE COONTZ, MARRIAGE, A HISTORY 34 (2005), at 112.
355. Susan Frelich Appleton, Toward a "Culturally Cliterate" Family Law?, 23 BERKELEY J. GENDER L & JUST. 267, 286-87 (2008), at 273 ("By licensing marriage and attaching to it material and status-based benefits, the state singles out the favored, 'legitimate' site for sexual activity, and clearly communicates its preference for monogamy.").
356. Shari Motro, Op-Ed., Single and Paying for It, N.Y. TIMES, Jan. 25, 2004, at 15.
357. See generally NAOMI CAHN & JUNE CARBONE, RED FAMILIES V. BLUE FAMILIES 42-44 (2010).
358. For an overview of statutory rape law, see Russell L. Christopher & Kathryn H. Christopher, Adult Impersonation: Rape by Fraud as a Defense to Statutory Rape, 101 NW. U. L. REV. 75, 111-16 (2007).
359. "[I]n the English legal tradition," for example, explain Kerry Abrams and Peter Brooks, "[m]arriage... functioned not as a check on the wildness of male heterosexuality but as a way for men to maintain sexual freedom without adverse financial consequences." Kerry Abrams & Peter Brooks, Marriage as a Message: Same-Sex Couples and the Rhetoric of Accidental Procreation, 21 YALE J.L. & HUMAN. 1, 3-4 (2009), at 9.
360. Marriage obviously provided no protections to mistresses, prostitutes, or slaves. See Jane E. Larson, "Women Understand So Little, They Call My Good Nature 'Deceit'": A Feminist Rethinking of Seduction, 93 COLUM. L. REV. 374, 381 (1993), at 389-90 ("Victorian... conventions of female sexual modesty protected 'respectable' women only at the expense of prostitutes, enslaved women, and domestic servants, against whom male sexual interest was redirected.").
361. Some might counter that the benefits of marriage protect women by deterring extramarital sex, thereby reducing the instances of pregnancies out of wedlock. Some feminists also believe that over much of history, channeling sex into marriage and punishing extramarital sex through criminal fornication laws produced a net benefit for women. See LINDA R. HIRSHMAN & JANE E. LARSON, HARD BARGAINS: THE POLITICS OF SEX 281 (1998), at 276 ("Given natural and social vulnerabilities in sex and reproduction, the weighty and mutual obligations of socially enforced marriage was a better outcome than most women could have expected from sexual bargaining on their own....[L]aws against fornication generally elevated the status of women in history by increasing the price that men paid for heterosexual access.").
362. KRISTIN LUKER, TAKING CHANCES: ABORTION AND THE DECISION NOT TO CONTRACEPT 116 (1975) ("It is in the area of sanctioned sexuality that women suffer the most dramatic loss of bargaining power in courtship. Under the traditional taboos surrounding intercourse for the first half of [the twentieth] century, sanctioned sexual expression was a scarce commodity and one which was a powerful inducement to marriage. In general... the stricter the norms against premarital intercourse, the more valuable sex becomes as a currency of bargaining in the marriage market."). In light of the prevalence of nonmarital sex today, however, the relevance of these objections is largely historical.
363. Elizabeth S. Scott, Marriage, Cohabitation and Collective Responsibility for Dependency, 2004 U. CHI. LEGAL F. 225, 225.
364. See NAOMI CAHN & JUNE CARBONE, RED FAMILIES V. BLUE FAMILIES 42-44 (2010), at 60 ("Social science research... suggests that well over 90% of all adults engage in sex before they marry.").
365. As Cahn and Carbone show, the main cultural divide in America today seems to be not between unmarried youth who abstain and those who are sexually active. Rather, the main division is in how people tend to handle an unplanned pregnancy. Conservatives tend toward the "shotgun wedding"; liberals are more likely to terminate the pregnancy. See generally LAUREN F. WINNER, REAL SEX: THE NAKED TRUTH ABOUT CHASTITY 14-19 (2005) (detailing the prevalence of "sexual sin in contemporary Christendom").
366. Facts on American Teens' Sexual and Reproductive Health, GUTTMACHER INST. (Jan. 2010), http://www.guttmacher.org/pubs/FB-ATSRH.html.
367. For a related discussion, see Lawrence B. Finer & Stanley K. Henshaw, Disparities in Rates of Unintended Pregnancy in the United States, 1994 and 2001, 38 PERSP. ON SEXUAL & REPROD. HEALTH 90, 92-93 (2006), available at http://www.guttmacher.org/pubs/psrh/full/3809006.pdf.
368. Stanley K. Henshaw, Unintended Pregnancy in the United States, 30 FAM. PLAN. PERSP. 24, 27 (1998), available at http://www.guttmacher.org/pubs/journals/3002498.pdf, at 27.
369. See LAUREN F. WINNER, REAL SEX: THE NAKED TRUTH ABOUT CHASTITY 14-19 (2005), at 17 ("In 2001, a study of 6,800 students showed that virgins who took the [True Love Waits abstinence] pledge were likely to abstain from sex for eighteen months longer than those who did not take the pledge. This... means simply that a lot of abstinence pledgers are having sex at nineteen instead of eighteen.").
370. Heather D. Boonstra, Advocates Call for a New Approach After the Era of 'Abstinence-Only' Sex Education, 12 GUTTMACHER POL'Y REV. 6, 8 (2009), available at http://www.guttmacher.org/pubs/gpr/12/1/gpr120106.html. In addition to her critique of current abstinence programs, Winner's book aims-through personal sexual accounts, theological references, and an honest discussion of cultural trends-to provide modern Christians with a compelling argument for the admittedly challenging imperative of abstinence until marriage.
371. LAUREN F. WINNER, REAL SEX: THE NAKED TRUTH ABOUT CHASTITY 14-19 (2005) at 17.
372. More broadly, rather than functioning as an insurance policy against unintended procreation, marriage is more commonly the form of choice for couples who intend to conceive. "Many people to-day marry," write Kerry Abrams and Peter Brooks, "once they think they have found the person they want to procreate with, not because they have decided to have sex for the first time and want to insure themselves against 'accidents,' but because they have been (irresponsibly?) engaging in sex for quite some time and only now are ready to settle down and have a child." Kerry Abrams & Peter Brooks, Marriage as a Message: Same-Sex Couples and the Rhetoric of Accidental Procreation, 21 YALE J.L. & HUMAN. 1, 3-4 (2009), at 32.
373. The scope of this Article is limited to unmarried conception, but the treatment of pregnancy in marriage and divorce law is also lacking.
374. NAOMI CAHN & JUNE CARBONE, RED FAMILIES V. BLUE FAMILIES 42-44 (2010), at 60.
375. See NAOMI CAHN & JUNE CARBONE, RED FAMILIES V. BLUE FAMILIES 42-44 (2010) at 26 ("[D]ivorce risk... increases with younger age of marriage, lower economic status, and having a baby either prior to marriage or within the first seven months after marriage. Accordingly, family strategies that either emphasize marrying young, or marriage as the solution to an improvident pregnancy[,] are likely to increase rates of divorce, all other things being equal.").
376. Marriage provides a useful way to formalize intimate relations between lovers who would choose to marry regardless of the risk of procreative accidents. By standardizing a basket of rights and responsibilities between adults who intend to unite for life, it absolves couples of the need to deliberate and negotiate over every aspect of their union. Its maximalist one-size-fits-all defaults designate spouses as each others' primary beneficiaries, caretakers, guardians, agents, and representatives in all aspects of life-financial, medical, spiritual. In this capacity, spouses replace parents and siblings as a person's most significant legal relation. Though pregnancy and co-parenting are life-altering undertakings, marriage binds people to a broader, more extensive commitment than is needed to protect lovers who conceive and their unplanned children.
377. See NAOMI CAHN & JUNE CARBONE, RED FAMILIES V. BLUE FAMILIES 42-44 (2010), at 59 ("[M]arriage at younger ages is a risky enterprise. It has historically required a high degree of community-reinforced socialization into marital roles-including stereotypical gender roles, male financial contributions and female dependence-to succeed. New research emphasizes that full emotional maturity does not occur until the mid-twenties, and the less than fully mature early twenties brain (especially if male) is primed for risk taking and sexual experimentation. At the same time, the modern economy provides fewer opportunities for the men who are ready to start families in their early twenties to move into productive employment.").
378. see also LINDA R. HIRSHMAN & JANE E. LARSON, HARD BARGAINS: THE POLITICS OF SEX 281 (1998), at 276 ("Rather than try to force sexual actors into marriage, we choose to modify that anarchic state of nature that characterizes nonmarital sexual bargaining.").
379. But see Elizabeth S. Scott, Marriage, Cohabitation and Collective Responsibility for Dependency, 2004 U. CHI. LEGAL F. 225, 225, at 235 ("[E]ven broken marriages provide financial and relationship benefits for dependent family members.").
380. Goodridge v. Dep't of Pub. Health, 798 N.E.2d 941, 996 (Mass. 2003) (Cordy, J., dissenting).
381. See Elizabeth S. Scott, Marriage, Cohabitation and Collective Responsibility for Dependency, 2004 U. CHI. LEGAL F. 225, 225, at 255 ("Under ordinary contract principles, courts should enforce agreements between cohabiting parties dealing with property distribution and support. Many courts have adopted this view in recent years and have been ready to enforce these contracts. If a couple has an express written agreement, enforcement is usually straightforward. Sometimes, even without a writing, substantial evidence exists of the couple's agreement that property acquired during the union would be shared or that one party would provide post-dissolution support.").
382. See Elizabeth S. Scott, Marriage, Cohabitation and Collective Responsibility for Dependency, 2004 U. CHI. LEGAL F. 225, 225, at 256 ("Courts' responses to financial claims by cohabitating parties based on conduct rather than express promise have been mixed. In general, contracts implied in fact will be legally enforced if the conduct is promissory-that is, if it is sufficiently clear to demonstrate an understanding between the parties that an obligation exists." (footnote omitted)).
383. Scott has gone as far as arguing that contract principles justify a standard default imposing marriage-like commitments on couples who live together for many years and conduct themselves as married. As long as they have not explicitly contracted otherwise, she argues, "an agreement to assume marital obligations can be inferred." Elizabeth S. Scott, Marriage, Cohabitation and Collective Responsibility for Dependency, 2004 U. CHI. LEGAL F. 225, 225, at 258.
384. see also Shahar Lifshitz, Married Against Their Will 11-13 (Bar-Ilan Univ. Pub. L. and Legal Theory Working Paper Series, Paper No. 06-09, 2009), available at http://ssrn.com/abstract=1352043 (explaining two models of implicit contractual relationships between cohabitating couples).
385. A minority of jurisdictions and the American Law Institute's Principles of Family Dissolution reject the contractual approach in favor a status-based solution.
386. Contract is seen as a poor vehicle for regulating intimate relations for two main reasons. First, as ALI chief reporter Ira Ellman put it, "people do not think of their intimate relationships in contract terms." Ira Ellman, "Contractual Thinking" Was Marvin's Fatal Flaw, 76 NOTRE DAME L. REV. 1365, 1373 (2001).
387. Second, the contract rubric fails to address the equitable claims of abandoned partners where no implied agreement can be reasonably inferred. Ira Ellman, "Contractual Thinking" Was Marvin's Fatal Flaw, 76 NOTRE DAME L. REV. 1365, 1373 (2001). at 1372 n.39.
388. But see Elizabeth S. Scott, Marriage, Cohabitation and Collective Responsibility for Dependency, 2004 U. CHI. LEGAL F. 225, 225, at 262-63 ("[A] contractual framework is compatible with liberal values, and thus has a normative appeal that the status-based A.L.I. approach lacks. The proposed default rules rest on realistic assumptions about the intentions of many couples in informal unions, while at the same time offering protection to naïve parties whose expectations may not be shared by their partners.").
389. The better, more honest reason for imposing marital obligations on domestic partners, the argument goes, is fairness. See Shahar Lifshitz, Married Against Their Will 11-13 (Bar-Ilan Univ. Pub. L. and Legal Theory Working Paper Series, Paper No. 06-09, 2009), available at http://ssrn.com/abstract=1352043, at 13-16 (describing different rationales for the status model's equation of marital obligations and cohabitation).
390. See UNIF. ADOPTION ACT § 3-404, 9 U.L.A. 11 (1994) and accompanying text.
391. See Casey, 505 U.S. at 877-79
392. Casey, 505 U.S. at 897 and accompanying text.
393. The fact that some women are coerced into having abortions does not, however, justify abortion restrictions.
394. See also Sylvia A. Law, Rethinking Sex and the Constitution, 132 U. PA. L. REV. 955, 955-56 (1984), at 1034-35 (arguing that a statute requiring a pregnant woman to notify the man who impregnated her of the fact of the pregnancy, while preferable to abortion-only notification policies, would be indefensibly oppressive to women).
395. See generally Reva B. Siegel, The Right's Reasons: Constitutional Conflict and the Spread of Woman-Protective Antiabortion Argument, 57 DUKE L.J. 1641 (2008), at 1687-92 (explaining how the woman-protective antiabortion argument blends feminist arguments with traditional gender stereotypes).
396. I credit Susan Appleton with this idea (which she suggested without necessarily endorsing). For a recent discussion of putative father registries, see Laura Oren, Unmarried Fathers and Adoption: "Perfecting" or "Abandoning" an Opportunity Interest, 36 CAP. U. L. REV. 253, 266-67 (2007) ("By 2007, at least thirty-four states had adopted one form or another of putative father registry....Typically, they permit registration before the birth of the child and no later than thirty days after....The consequences of not registering can be strikingly different from one state to another. In some states, any putative father who wants to be notified about a possible adoption proceeding must register or lose the opportunity for notice and objection. In others, the statute requires due diligence to identify and notify putative fathers, including those who have failed to register.").
397. see also 750 ILL. COMP. STAT. ANN. 50/12.1 (West 2009) ("The Department of Children and Family Services shall establish a Putative Father Registry for the purpose of determining the identity and location of a putative father of a minor child who is, or is expected to be, the subject of an adoption proceeding, in order to provide notice of such proceeding to the putative father....[F]ailure to timely register with the Putative Father Registry (i) shall be deemed to be a waiver and surrender of any right to notice of any hearing in any judicial proceeding for the adoption of the child, and the consent or surrender of that person to the adoption of the child is not required, and (ii) shall constitute an abandonment of the child and shall be prima facie evidence of sufficient grounds to support termination of such father's parental rights under this Act.").
398. Lehr v. Robertson, 463 U.S. 248, 250-51 (1983) ("The State of New York maintains a 'putative father registry.' A man who files with that registry demonstrates his intent to claim paternity of a child born out of wedlock and is therefore entitled to receive notice of any proceeding to adopt that child....In addition to the persons whose names are listed on the putative father registry, New York law requires that notice of an adoption proceeding be given to several other classes of possible fathers of children born out of wedlock-those who have been adjudicated to be the father, those who have been identified as the father on the child's birth certificate, those who live openly with the child and the child's mother and who hold themselves out to be the father, those who have been identified as the father by the mother in a sworn written statement, and those who were married to the child's mother before the child was six months old.").
399. See, e.g., UTAH CODE ANN. § 78B-6-110(1)(a) (West 2008) (putting putative fathers on constructive notice once they have engaged in sexual intercourse).
400. VA. CODE ANN. § 63.2-1250(E) (2008) ("Any man who has engaged in sexual intercourse with a woman is deemed to be on legal notice that a child may be conceived and the man is entitled to all legal rights and obligations resulting therefrom. Lack of knowledge of the pregnancy does not excuse failure to timely register. In the event that the identity and whereabouts of the birth father are reasonably ascertainable, written notice of the existence of an adoption plan and the availability of registration with the Putative Father Registry shall be provided by certified mailing to the man's last known address.").
401. See Jacqueline M. Fontana, Cooperation and Good Cause: Greater Sanctions and the Failure to Account for Domestic Violence, 15 WIS. WOMEN'S L.J. 367, 368-69 (2000).
402. See Planned Parenthood of Se. Pa. v. Casey, 505 U.S. 833, 908-09 (2002).
403. See Planned Parenthood of Se. Pa. v. Casey, 505 U.S. 833, 908-09 (2002). at 888 ("The 'bodily injury' exception could not be invoked by a married woman whose husband, if notified, would, in her reasonable belief, threaten to (a) publicize her intent to have an abortion to family, friends or acquaintances; (b) retaliate against her in future child custody or divorce proceedings; (c) inflict psychological intimidation or emotional harm upon her, her children or other persons; (d) inflict bodily harm on other persons such as children, family members or other loved ones; or (e) use his control over finances to deprive of necessary monies for herself or her children.").
404. Jacqueline M. Fontana, Cooperation and Good Cause: Greater Sanctions and the Failure to Account for Domestic Violence, 15 WIS. WOMEN'S L.J. 367, 368-69 (2000), at 380-87 (discussing the cooperation requirement and good cause exceptions to that requirement in several federal and state laws and the insufficient protections they provide to potential victims of domestic violence).
405. Again, the role of the state in supporting dependents generally, and pregnant women in particular, is outside the scope of this Article.
406. See generally Katharine Silbaugh, Commodification and Women's Household Labor, 9 YALE J.L. & FEMINISM 81 (1997).
407. Wrongful pregnancy cases, also referred to as wrongful conception cases, are usually cases that involve a failed sterilization, abortion, or other contraception procedure or prescription which, due to a health care provider or pharmacist's negligence, results in an unwanted pregnancy. Martha C. Romney & Dorothy Duffy, Medicine and Law: Recent Developments, 25 TORT & INS. L.J. 351, 358 (1990).
408. On the legality of surrogate motherhood arrangements, see Bridget J. Crawford, Taxing Surrogacy, in CHALLENGING GENDER INEQUALITY IN FISCAL POLICY MAKING (Åsa Gunnarsonn et al. eds., forthcoming 2010) (manuscript at 2), available at http://papers.ssrn.com/sol3/papers.cfm?abstract_ id=1422180 ("Only a small number of states expressly permits or prohibits surrogacy. In New Hampshire, Florida and Ohio-to name just three-paid surrogacy agreements are enforceable, but they are subject to stringent regulations. In contrast, in New York and at least five other states, paid surrogacy agreements are void, unenforceable and potentially subject to criminal penalties. Most states, however, occupy a 'middle ground', with limited or no statutory or case law authority that speaks to the validity or enforceability of surrogacy contracts and with no civil or criminal prohibition either.").
409. See Boone v. Mullendore, 416 So. 2d 718, 721 (Ala. 1982) (allowing for the recovery of damages against a doctor held negligent in a "wrongful pregnancy" case based on the mother's physical pain and suffering, mental anguish, her husband's loss of consortium, and medical expenses incurred by the parents as a result of the pregnancy).
410. Coleman v. Garrison, 327 A.2d 757, 761-62 (Del. Super. Ct. 1974), aff'd, 349 A.2d 8 (Del. 1975) (allowing damages in a wrongful pregnancy suit for pain and suffering due to pregnancy, cost of a tubal ligation, loss of consortium, and medical expenses related to pregnancy).
411. See Kingsbury v. Smith, 442 A.2d 1003, 1006 (N.H. 1982).
412. Beardsley v. Wierdsman, 650 P.2d 288, 292 (Wyo. 1982).
413. See Smith v. Gore, 728 S.W.2d 738, 751-52 (Tenn. 1987) ("In assessing these damages, the jury may consider the reason for which Plaintiff underwent the pregnancy avoidance technique. Other considerations may include the age of the parent or parents, marital status, the number of other children for whom the parent or parents are already responsible, and the economic condition of the parent or parents. The degree of distress could be amplified by a combination of these factors.").
414. Miller v. Johnson, 343 S.E.2d 301, 305 (Va. 1986). Indeed, in some cases even the woman's "struggle whether to rear, place for adoption, or terminate the pregnancy" is reimbursable. Gore, 728 S.W.2d at 752.
415. See also White v. United States, 510 F. Supp. 146, 149 (D. Kan. 1981) (upholding the potential recoverability of damages for emotional and mental anguish, provided the requisite physical injury or willful, malicious, or wanton conduct accompanies it).
416. Weintraub v. Brown, 470 N.Y.S.2d 634, 641-42 (Sup. Ct. 1973) (allowing recovery for a mother's emotional distress resulting from the actual or anticipated physical pain and suffering associated with pregnancy and delivery following an unsuccessful vasectomy).
417. See Flax v. McNew, 896 S.W.2d 839, 843-45 (Tex. App. 1995) (holding that a mother may potentially recover damages resulting from an unsuccessful sterilization procedure based on permanent scars, pain, suffering, and physical impairment).
418. Jurisdictions differ, however, on whether the tortfeasor doctor may also be held liable for the costs of raising a child. Most states have found that the birth of a normal, healthy, albeit unwanted child is not a compensable injury. See Boone v. Mullendore, 416 So. 2d 718, 721-23 (Ala. 1982).
419. Flowers v. Dist. of Columbia, 478 A.2d 1073, 1077-78 (D.C. 1984).
420. Byrd v. Wesley Med. Ctr., 699 P.2d 459, 465-67 (Kan. 1985).
421. C.S. v. Neilson, 767 P.2d 504, 516 (Utah 1988).
422. James G. v. Caserta, 332 S.E.2d 872, 876-78 (W. Va. 1985).
423. Bruce Keplinger & James J. Cramer, Wrongful Pregnancy: A House Divided, 23 TORT & INS. L.J. 496, 501-05 (1988).
424. That said, a minority of jurisdictions do allow for recovery of child rearing expenses. See, e.g., Hartke v. McKelway, 707 F.2d 1544, 1552-53 (D.C. Cir. 1983).
425. Univ. of Ariz. Health Sci. Ctr. v. Super. Ct., 667 P.2d 1294, 1301 (Ariz. 1983).
426. Stills v. Gratton, 127 Cal. Rptr. 652, 658-59 (Ct. App. 1976).
427. Ochs v. Borrelli, 445 A.2d 883, 884-85 (Conn. 1982).
428. Jones v. Malinowski, 473 A.2d 429, 435 (Md. 1984).
429. Green v. Sudakin, 265 N.W.2d 411, 412-13 (Mich. Ct. App. 1978) (holding that public policy considerations could not warrant physicians' exemption from the consequences of failing to notify a patient that they had not performed an agreed-upon sterilization procedure).
430. Sherlock v. Stillwater Clinic, 260 N.W.2d 169, 175-76 (Minn. 1977).
431. See Gore, 728 S.W.2d at 752.
432. See Surrogate Mothers, Inc., Approximate Expenses, http://www.surrogatemothers.com/ expense.html (last visited Aug. 28, 2010).
433. See Circle Surrogacy, Payment/Bills, http://www.circlesurrogacy.com/surrogate/faq.html# Payments (last visited Aug. 28, 2010).
434. See Shelley M. Tarnoff, When Things Go Wrong: Pregnancy Termination in Surrogacy, OPTS, June 1, 2010, http://www.opts.com/pgterm.htm ("If the surrogate undergoes a therapeutic abortion or spontaneous abortion, according to the terms of the agreement, she is usually paid a pro rata portion of her fee, calculated by multiplying her total fee by a fraction, the numerator of which is the number of days of pregnancy and the denominator of which is the normal term of pregnancy. Additionally, a fee of $500.00 is often paid to the surrogate for undergoing a therapeutic abortion, selective reduction, amniocentesis or other invasive procedure to compensate her for associated pain and suffering.").
435. see also Alex Kuczynski, Her Body, My Baby, N.Y. TIMES MAG., Nov. 30, 2008, at 42 ("The typical cost for gestational surrogacy... would be anywhere from $30,000 to $60,000....The fees to the surrogate would be paid out in monthly installments, not in one lump sum at the end. In this way the surrogate would be reimbursed for her monthly gestational responsibilities even if the pregnancy ended in miscarriage. No money ever changes hands directly between the intended parents... and the surrogate. All the money goes into an escrow account..., and a third party pays out the monthly fees. [Intended parents] and surrogates are discouraged from discussing money. This is partly to remove the air of commercialism from the proceedings.").
436. See Welcome to Orgasmic Birth, http://www.orgasmicbirth.com (last visited Aug. 28, 2010).
437. The marginal utility method would lessen the woman's burden and increase the man's such that both suffer a comparable loss. The result would mitigate the woman's burden only to the point at which the man would "share her pain." For example, a wealthy woman's pregnancy-related costs expressed in dollars would typically be high because her low marginal utility of wealth makes her pain "worth more," so she requires more dollars to be made whole. But if she conceives with a man of modest means she would be entitled only to a small fraction of her total loss, an amount roughly balancing the parties' loss relative to their overall circumstance. A poor woman who conceives with a rich man would be entitled to an amount close to but never exceeding her experienced loss, which will be much lower in dollars than the loss of the rich woman. (The poor woman's high marginal utility of wealth means that she requires less to be made whole.) Only where both parties are equally wealthy will the payment equal half of the woman's loss. This method would therefore increase the deterrence potential of the new default rule, protect poor men from the risk of devastating losses (should they accidentally impregnate a rich woman), as well as limit rich men's risk exposure in the face of gold diggers. A woman who might be tempted to abuse the law in order to extract a large payment from a rich man will quickly realize that she will never be able to recover more than her own true costs.
438. For a discussion on the drawbacks of broad judicial discretion over divorce, see AM. LAW INST., PRINCIPLES OF THE LAW OF FAMILY DISSOLUTION: ANALYSIS AND RECOMMENDATIONS § 4.09 cmt. a (2000).
439. see also Jana B. Singer, Divorce Reform and Gender Justice, 67 N.C. L. REV. 1103, 1119 (1989) ("[D]ivorce doctrines that allow for substantial judicial discretion generally operate to women's disadvantage....The absence of clear-cut legal standards also affects the negotiation process in ways that disadvantage the economically weaker party, generally the woman, in a divorce. Finally, the lack of precise standards... may drive up the costs associated with divorce, particularly attorneys' fees, which again penalizes the economically weaker spouse.").
440. For example, decisionmakers could possibly consider the parties' relative fault, age, dependents, and behavior following conception.
441. I credit Corinna Lain for this insight.
442. For further discussion of the impact of mandatory pregnancy support on choice, see Craigslist: Atlanta Classifieds for Jobs, Apartments, Personals, For Sale, Services, Community, http://www.atlanta.craigslist.org (last visited Aug. 28, 2010).
443. Craigslist hosts such listings under categories named "missed connections" and "casual encounters" for various geographical areas. See, e.g. Craigslist: Atlanta Classifieds for Jobs, Apartments, Personals, For Sale, Services, Community, http://www.atlanta.craigslist.org (last visited Aug. 28, 2010).
444. See Friends with Benefits, http://findfriendswithbenefits.com (last visited Aug., 2010).
445. See OKCupid, http://www.OKCupid.com/questions/ask (last visited May, 30, 2010) (users must create an account to access this page).
446. JDate.com asks users to indicate whether they are looking for a date, a friend, marriage, marriage and children, a long-term relationship, or an activity partner. JDate.com-The Leading Jewish Singles Network! Explore the Possibilities, http://www.jdate.com/ Applications/Registration/Registration.aspx (last visited Aug. 28, 2010).
447. FriendFinder.com advertises itself as providing "personals for fun, friends, & love." Friendfinder: Have Fun, Meet People, & Find Love, http://www.friendfinder.com (last visited Aug. 28, 2010).
448. See Urban Dictionary, NSA, http://www.urbandictionary.com/define.php?term=nsa (last visited May 27, 2010) ("No Strings Attached, but it doesn't refer to a type of relationship, but to the willingness/desire to have sex without the necessity of a relationship. NSA means lets have some fun without creating any obligations beyond the moment. We do what we do tonight and dont [sic] ever have to see each other again. But without the negative connotation of one-night stand, even if that is what it is." One of the examples supplied reads: "Single successful individual with no time to spend in the bars looks for NSA relationship.-craigslist").
449. Child support would continue to begin in utero. As we have seen, disentangling pregnancy-related expenses incurred for the benefit of a future child from costs borne by the woman in her own right necessarily forces arbitrary line drawing. Anything that might add to a pregnant woman's stress could affect the fetus's health and well-being. Georgia Justice Hunt's dissent in Coxwell v. Matthews captures the view that requiring lovers who conceive to share the price of pleasure broadly conceived leads to a slippery slope, an unlimited class of expenses for which men might be obligated to pay.
450. See Coxwell v. Matthews, 435 S.E.2d 33, 35 (Ga. 1993) (Hunt, J., dissenting) ("The majority states the truism that prenatal care for a child has an impact on postnatal care. So, too, do a myriad of other things such as: food, shelter, and clothing for the mother, childbirth classes for the mother, exercise classes for the mother, classes or courses to assist the mother to stop smoking, drinking, etc. Without any of these, the born child's life might be an 'uphill climb.'"). Still, similar line-drawing challenges permeate all child support determinations; a mother's well-being cannot be completely separated from her child's. The findings of scholars and advocates dedicated to crafting the ideal child support regime should thus inform the proper determination of in utero costs that may and may not be waivable.
451. But see Orly Lobel, The Paradox of Extra Legal Activism: Critical Legal Consciousness and Transformative Politics, 120 HARV. L. REV. 937, 942 (2007) ("[T]he risks of extralegal cooptation are similar to the risks of legal cooptation.").
452. see also Robin West, From Choice to Reproductive Justice: De-Constitutionalizing Abortion Rights, 118 YALE L.J. 1394, 1409-12 (2009) (arguing that the right to abortion constitutionalized in Roe v. Wade legitimated a minimalist state response to the problems of pregnant women indirectly hurting the cause of reproductive justice).
453. CAMILLE PAGLIA, SEXUAL PERSONAE: ART AND DECADENCE FROM NEFERTITI TO EMILY DICKINSON 13 (1990).
454. see also KATIE ROIPHE, THE MORNING AFTER: SEX, FEAR AND FEMINISM, at xv (1994) ("[T]he preoccupation with sexual rules represents an almost utopian faith in our ability to create a safe sexual world....[O]ur intense concern with definitions of sexual harassment over the past few years demonstrates a deep-felt desire for-and belief in-a neat separation between sex and danger. In this time of sexual suspicion, changing roles, and disease, we seem to believe that somewhere out there is an instruction manual, a potent mixture of law and etiquette, that will tell us how to lead our sexual lives.").
455. As Blackstone said, "we often mistake for nature what we find established by long and inveterate custom." 2 WILLIAM BLACKSTONE, COMMENTARIES *11.
456. See Deirdre English, The Fear That Feminism Will Free Men First, in POWERS OF DESIRE: THE POLITICS OF SEXUALITY 477, 480 (Ann Snitow et al. eds., 1983).
457. See Deirdre English, The Fear That Feminism Will Free Men First, in POWERS OF DESIRE: THE POLITICS OF SEXUALITY 477, 480 (Ann Snitow et al. eds., 1983). at 477 ("[S]o far, sexual freedom has usually meant a man's right to love and leave a pregnant or economically dependent woman.").
458. See A.A. Ewies, Levonorgestrel-Releasing Intrauterine System-The Discontinuing Story, 36 GYNECOL ENDOCRINOL 1 (2009).
459. Stephanie Mencimer, Is NuvaRing Dangerous?, MOTHER JONES, May/June 2009 and accompanying text.
460. Project Voice, a website that publishes abortion stories online, is trying to break this silence. See Project Voice, About Us, http://www.theabortionproject.org/html/about_us.php (last visited Aug. 15, 2010).
461. See Bell Hooks, Ending Female Sexual Oppression, in FEMINIST THEORY: FROM MARGIN TO CENTER 147, 148-50, 152-56 (1984) ("The focus on 'sexual liberation' has always carried with it the assumption that the goal of such effort is to make it possible for individuals to engage in more and/or better sexual activity. Yet one aspect of sexual norms that many people find oppressive is the assumption that one 'should' be engaged in sexual activity. This 'should' is one expression of sexual coercion.").
462. As one conservative scholar put it, "[a]bortion coerces women to handle crises that they did not create alone. Yet the men, who are at least equally responsible for the crisis, are relieved of any concern, torment, anguish, or responsibility by a woman's choice of abortion. Indeed, the ultimate irony of abortion is that it inherently lets men off the hook." Lynne Marie Kohm, Sex Selection Abortion and the Boomerang Effect of a Woman's Right to Choose: A Paradox of the Skeptics, 4 WM. & MARY J. WOMEN & L. 91, 122-23 (1997).
463. see also Deirdre English, The Fear That Feminism Will Free Men First, in POWERS OF DESIRE: THE POLITICS OF SEXUALITY 477, 480 (Ann Snitow et al. eds., 1983), at 479 ("The anti-feminist woman is right about one crucial thing: the other woman's right to have an abortion does affect her. It does something very simple and, to many women, very upsetting: it takes away their ability not to choose. Where abortion is available, the birth of every baby becomes a willed choice, a purposeful act. And that new factor destroys the set of basic assumptions on which many traditional marriages have been based. It breaks the rules and wrecks the game....Remember the rules of the old game? They began with this: men did not get to have sex with women... unless they married them....In other words, sex was supposed to incur a major responsibility for men-as it did for women.").
464. Lynne Marie Kohm, Sex Selection Abortion and the Boomerang Effect of a Woman's Right to Choose: A Paradox of the Skeptics, 4 WM. & MARY J. WOMEN & L. 91, 122-23 (1997) at 481 ("If a woman gets pregnant, the man who twenty years ago might have married her may feel today that he is gallant if he splits the cost of an abortion.").
465. MacKinnon believes that women have so-called consensual intercourse with men because they are trapped in the false consciousness of a culture that teaches them that the only measure of a woman's worth-her very identity-is through her capacity for sexual violation. See Catharine MacKinnon, Pleasure Under Patriarchy, in THEORIES OF HUMAN SEXUALITY 65, 65-70, 75 (James H. Geer & William T. O'Donohue eds., 1987).
466. "When acts of dominance and submission," writes Catharine MacKinnon, "up to and including acts of violence, are experienced as sexually arousing, as sex itself, that is what they are. The mutual exclusivity of sex and violence is preserved in the face of this evidence by immunizing as 'sex' whatever causes a sexual response and by stigmatizing questioning it as repressive, knowing that what is thereby exempted includes humiliation and brutality and molestation and murder as well as rape by any definition. Violence is sex when it is practiced as sex. If violation of the powerless is part of what is sexy about sex, as well as central to the meaning of male and female, the place of sexuality in gender and the place of gender in sexuality need to be looked at together. When this is done, sexuality appears as the interactive dynamic of gender as an inequality." MacKinnon, The Art of the Impossible, in FEMINISM UNMODIFIED, 93 (1987), at 1, 6. In Dworkin's words: A woman has a body that is penetrated in intercourse....The discourse of male truth... calls that penetration violation....Violation is a synonym for intercourse....Physically, the woman in intercourse is a space inhabited, a literal territory occupied literally: occupied even if there has been no resistance, no force; even if the occupied person said yes please, yes hurry, yes more. Having a line at the point of entry into your body that cannot be crossed is different from not having any such line; and being occupied in your body is different from not being occupied in your body.
467. ANDREA DWORKIN, Occupation/Collaboration, in INTERCOURSE 154, 168 (2006), available at http://www.nostatusquo.com/ACLU/dworkin/IntercourseI.html.
468. ANDREA DWORKIN, Occupation/Collaboration, in INTERCOURSE 154, 168 (2006), available at http://www.nostatusquo.com/ACLU/dworkin/IntercourseI.html, at 181.
469. For debates surrounding the definition of rape, see MARK COWLING, DATE RAPE AND CONSENT 20-32 (1998).
470. CAMILLE PAGLIA, SEX, ART, AND AMERICAN CULTURE 64-65 (1992).
471. KATIE ROIPHE, THE MORNING AFTER: SEX, FEAR AND FEMINISM, at xv (1994), at 79-82.
472. ALAN WERTHEIMER, CONSENT TO SEXUAL RELATIONS 2 (2003).
473. Robin West, Sex, Law and Consent, in THE ETHICS OF CONSENT: THEORY AND PRACTICE 221, 247 n.1 (Alan Wertheimer & William Miller eds., 2010).
474. Kathryn Abrams, Complex Claimants and Reductive Moral Judgments: New Patterns in the Search for Equality, 57 U. PITT. L. REV. 337, 348 (1996).
475. Susan Estrich, Rape, 95 YALE L.J. 1087 (1986).
476. Martha R. Mahoney, Whiteness and Women, in Practice and Theory: A Reply to Catharine MacKinnon, 5 YALE. J.L. & FEMINISM 217, 229-30 (1993).
477. Frances Olsen, Statutory Rape: A Feminist Critique of Rights Analysis, 63 TEX. L. REV. 387, 427-28 (1984).
478. Elizabeth M. Schneider, Feminism and the False Dichotomy of Victimization and Agency, 38 N.Y.L. SCH. L. REV. 387, 395 (1993).
479. A Lexis search of law journals including the phrase "all sex is rape" and MacKinnon and Dworkin yields over sixty hits that include a broad diversity of views.
480. See Catharine A. MacKinnon, Pornography Left and Right, 30 HARV. C.R.-C.L. L. REV. 143, 143 (1995) (book review) ("In a telling convergence between left and right, Rush Limbaugh, a conservative commentator, recently said that I say 'all sex is rape,' repeating a lie that Playboy, a glossy men's sex magazine with liberal politics and literary pretensions, has been pushing for years.").
481. See Germaine Greer, The Backlash Myth, NEW REPUBLIC, Oct. 5, 1992, at 21. ("It is typical of the contradictions that break women's hearts that when they availed themselves of their fragile right to abortion they often, even usually, went with grief and humiliation to carry out a painful duty that was presented to them as a privilege.").
482. MacKinnon does write that "[p]regnancy and the capacity for pregnancy are broadly and deeply connected to many of women's experiences of second-class status." See CATHARINE A. MACKINNON, SEX EQUALITY 395 (2d ed. 2007), at 395. However, her greater emphasis on the act of intercourse itself occludes this central point.
483. Germaine Greer expresses a related view: "In order that vaginas can be always and everywhere accessible to the male, women are expected to insert devices into the uteri or to take steroids on a daily basis. This is interpreted as having the power to choose their reproductive destiny when it is no such thing. IUDs provoke infection and heavy bleeding; pills alter the whole metabolism. To accept contraception is to choose between two unacceptable alternatives, forced pregnancy or temporary infertility with a greater or lesser degree of present discomfort or malaise and unknown and unguessable long-term consequences." Germaine Greer, The Backlash Myth, NEW REPUBLIC, Oct. 5, 1992, at 22.
484. For couples who want to have children, by contrast, the asymmetry can run in the opposite direction if the woman's experience of pregnancy is a positive one. See Orgasmic Birth, http://www.orgasmicbirth.com (last visited Aug. 28, 2010).
485. It may not be surprising, therefore, that in many instances women are more vigilant than their male partners about birth control. Cf. Huang & Han, Child Support Enforcement, 69 J. MARRIAGE & FAMILY 763, 772 (2007), at 773-74 (finding that men are more likely to contracept if they expect to be on the hook for child support).
486. Women who do not want to conceive and who choose or agree to unprotected sex nevertheless often do so in the context of relationships characterized by deep-seated power imbalances. See CATHARINE A. MACKINNON, Privacy v. Equality: Beyond Roe v. Wade, in FEMINISM UNMODIFIED 93 (1987), at 94-95 ("[A]bortion's proponents and opponents share a tacit assumption that women significantly do control sex....Sexual intercourse... cannot simply be presumed coequally determined [when] women feel compelled to preserve the appearance... of male direction of sexual expression, as if male initiative itself were what we want, as if it were that which turns us on. Men enforce this. It is much of what men want in a woman....Under these conditions, women often do not use birth control because of its social meaning, a meaning we did not create. Using contraception means acknowledging and planning the possibility of intercourse, accepting one's sexual availability, and appearing non-spontaneous. It means appearing available to male incursions.").
487. see also Ine Vanwesen-beeck, The Context of Women's Power(lessness) in Heterosexual Interactions, in NEW SEXUAL AGENDAS 171, 176 (Lynne Segal ed., 1997).
488. Vanwesenbeeck discusses a study of young women in the Netherlands and the UK showing that "[y]oung women are still to a large extent guided by conceptions of sexuality as utterly romantic and as natural and spontaneous. Their ideas about sexuality are often formulated very vaguely in terms of 'attraction' and 'ecstasy,' ideals which do not provide them with concrete operational rules on how to get there. Planning and preparation do not go with romance. Images of romance and spontaneity prevent young women from explicitly formulating personal wishes, and prevent them even more from negotiating them. Negotiation is often perceived as 'being difficult,' which is exactly what young women seeking sexual pleasure do not want to be, which means that competent negotiation may only add an extra burden in a situation where sexual pleasure is altogether hard to get and difficult enough as it is. In the romantic image of sex, where it all has to happen spontaneously and 'naturally,' the initiative is often left to 'luck,' to circumstances, to 'being taken by surprise' or to the other person... young women still express a lot of ambivalence concerning sex." Huang & Han, Child Support Enforcement, 69 J. MARRIAGE & FAMILY 763, 772 (2007), at 773-74.
489. Vanwesen-beeck also discusses a study of prostitutes which concluded that "[c]onsistent condom use with clients can be considered an indicator of control over prostitution contact proceedings. Every prostitute wants to use condoms, and giving in on that points to a lack of control, generally speaking. So what is the context in which prostitutes become risk-takers where condom use is concerned?... [R]isk takers... differ significantly from other prostitutes [in that] [t]hey worked under more stressful conditions, both in terms of financial need and in terms of working routines....More of them were drug-users and their level of well-being was lower on a range of different criteria: they reported more dissociative experiences, more psychosomatic complaints, more problems that can be put together under the label of 'social insecurity' and, quite importantly, much less job satisfaction. Last, but definitely not least, they had experienced more victimization, both in childhood and in adult life, both off and on the job. They were also younger and more often born outside the Netherlands." Huang & Han, Child Support Enforcement, 69 J. MARRIAGE & FAMILY 763, 772 (2007), at 773-74. at 173.
490. West posits a related concept in her discussion of the psychological survival mechanisms that women develop to deal with the pervasive threat of acquisitive and violent male sexuality. She suggests that many women control the danger and suppress the fear of being raped by redefining themselves as "giving selves." The "giving self" consents to sex, but her consent is first and foremost an act of self sacrifice. See Robin L. West, The Difference in Women's Hedonic Lives: A Phenomenological Critique of Feminist Legal Theory, 15 WIS. WOMEN'S L.J. 149, 210 (2000), at 172 ("[A] woman or girl who has defined herself as 'giving' and her sexuality as 'that which is to be given,'... will never experience the anxious, ambiguous fear of rape by a 'date.' But nor will she experience consensual sex as pleasurable, or if she does, it will be only incidentally so. She consents to sex for his, not for her pleasure. The sex which is the culmination of these dates will be consensual, but it will also be uncomfortable, unpleasant, painful or dangerous. It will invite venereal disease (genital sex); bleeding and hemorrhaging (anal sex); gagging and nausea (deep oral sex); bruises, lacerations and welts (sadomasochistic sex); and unwanted pregnancy. The giving self will not experience this pain as a reason to withhold consent, for she is not, by self-definition, a being who consents to sexual encounters for her own pleasure or withholds consent if she foresees pain. She unquestionably consents, but not to satiate her own desires. She consents to satiate the desires and feed the pleasure of the other.").
491. See also SYLVIA WALBY, THEORIZING PATRIARCHY 125 (1990) (discussing "accomodatory strategies towards sexuality").
492. Ine Vanwesen-beeck, The Context of Women's Power(lessness) in Heterosexual Interactions, in NEW SEXUAL AGENDAS 171, 176 (Lynne Segal ed., 1997), at 175 (describing research on young women in the Netherlands and the United Kingdom showing a lack of having sex for its own sake, instead focusing on their male partners' satisfaction and needs, often at the expense of their own sexual pleasure).
493. The distinction between consensual relationship-implicating sex and consensual no-strings-attached sex which I proposed above is, I believe, a legally useful distinction. A related distinction, more elusive but as important from an emotional standpoint, is a distinction Robin West has drawn between consensual welcomed sex and sex that is consensual but unwelcomed, consensual sex that is not fully wanted or desired. West argues that the now dominant consensual/nonconsensual distinction serves us well insofar as it demarcates nonconsensual sex as wrong. It has also misled us, however, by implicitly legitimizing all acts of consensual sex. In fact, consensual sex that is unwanted-which is far more common than rape, and which is the only kind of sex many girls and women know-carries with it serious and generally unrecognized harms. It tends to be physically painful, emotionally abusive, and alienating. See Robin West, Sex, Law and Consent, in THE ETHICS OF CONSENT: THEORY AND PRACTICE 221, 247 n.1 (Alan Wertheimer & William Miller eds., 2010).
494. Robin L. West, The Difference in Women's Hedonic Lives: A Phenomenological Critique of Feminist Legal Theory, 15 WIS. WOMEN'S L.J. 149, 210 (2000).
495. LINDA R. HIRSHMAN & JANE E. LARSON, HARD BARGAINS: THE POLITICS OF SEX 281 (1998), at 23.
496. See Chien-Chung Huang & Wen-Jui Han, Child Support Enforcement and Sexual Activity of Male Adolescents, 69 J. MARRIAGE & FAMILY 763, 772 (2007).
497. RACHEL K. JONES, LAWRENCE B. FINER & SUSHEELA SINGH, GUTTMACHER INST., CHARACTERISTICS OF U.S. ABORTION PATIENTS, 2008, at 1, 9 (2010), available at http://www.guttmacher.org/pubs/US-Abortion-Patients.pdf and accompanying text.
498. Prostitution-like the sale of body parts-is illegal because, among other reasons, we believe that the existence of a market in these things will ultimately harm sellers. A market in sex or body parts, the anti-commodification argument goes, will lead to "desperate exchanges," pressuring the poor into a type of transaction that fundamentally undermines their "personhood." Prostitution opponents also argue that it harms third parties. For a discussion of the costs of prostitution to participants as well as third parties, see Debra Satz, Markets in Women's Sexual Labor, 106 ETHICS 63, 77-81 (1995).
499. For a discussion of the dangers of the commodification critique of women's non-market labor, see Katharine Silbaugh, Commodification and Women's Household Labor, 9 YALE J.L. & FEMINISM 81 (1997), at 83-84 ("[G]ender equality requires us to take the economics of home labor seriously....[A]s long as so many of women's activities remain non-market and as long as women's economic welfare is a concern of feminists, economic analysis of non-market activities is affirmatively desirable. My objective is to show what can be gained by allowing economics to inform, without dominating, the discourse on policy and doctrine surrounding home labor. Concern over women's lives becoming entirely commodified seems by comparison an abstract worry.").
500. The "double bind" of the commodification/noncommodification dilemma was first identified by Margaret Jane Radin in her seminal essay, Market-Inalienability, 100 HARV. L. REV. 1849, 1915-17 (1987).
501. see also VIVIANA A. ZELIZER, THE PURCHASE OF INTIMACY (2007) (arguing that economic negotiation and exchange lurks, unacknowledged, in the background of many intimate relationships).
502. For a more recent review of commodification debates, see Margaret Jane Radin & Madhavi Sunder, The Subject and Object of Commodification, in RETHINKING COMMODIFICATION 8 (Martha M. Ertman & Joan C. Williams eds., 2005), available at http://papers.ssrn.com/sol3/papers.cfm?abstract_id=582641.
503. For an argument in favor of freedom of contract in the related area of genetic parenthood, see I. Glenn Cohen, The Right Not to Be a Genetic Parent?, 81 S. CAL. L. REV. 1115, 1158 (2008), at 1162-84 (arguing for a waivable right not to be a genetic parent).
504. This has clearly been one of the unintended consequences of policies requiring mothers applying for public assistance to identify the father of their child as a condition for receiving benefits. See Jacqueline M. Fontana, Cooperation and Good Cause: Greater Sanctions and the Failure to Account for Domestic Violence, 15 WIS. WOMEN'S L.J. 367, 368-69 (2000).
505. Bridget Remington, It Takes a Father? Conforming with Traditional Family Values as a Condition of Receiving Welfare: Morals Reform and the Price of Privacy, 32 STETSON L. REV. 205, 223-27 (2002). This is why the relational default I propose, unlike child support, would be fully waivable, including where the woman receives public assistance.
506. Even in these cases, the results may harm the men as much as they harm their lovers. For a discussion of the moral, psychological, and spiritual risks to injurers who knowingly deny responsibility for harms they have caused, see Jonathan R. Cohen, The Immorality of Denial, 79 TUL. L. REV. 903, 932-37 (2005).
507. For a popular culture illustration of the dilemma, see Sex in the City: Coulda, Woulda, Shoulda (HBO television broadcast Aug. 5, 2001).
508. See Margaret Jane Radin, The Pragmatist and the Feminist, 63 S. CAL. L. REV. 1699, 1701 (1990) ("When we single out pregnancy... for 'special treatment,' we fear that employers will not hire women. But if we do not accord special treatment to pregnancy, women will lose their jobs. If we grant special treatment, we bring back the bad old conception of women as weaker creatures; if we do not, we prevent women from becoming stronger in the practical world.").
509. For this reason, some feminists opposed the Pregnancy Discrimination Act's definition of pregnancy as a "disability." See MARTHA CHAMALLAS, INTRODUCTION TO FEMINIST LEGAL THEORY 41 (2003).
510. More broadly, some feminists fear that harping on our reproductive suffering may revive Victorian prejudices of women as the "gentler" race in need of protection through male-enforced restrictions. See, e.g., Joan C. Williams, Deconstructing Gender, 87 MICH. L. REV. 797, 807-09, 820-21 (1989).
511. One commentator has dubbed those who advocate laws of this type "protective feminists." See Cathy Young, The New Madonna/Whore Syndrome: Feminism, Sexuality, and Sexual Harassment, 38 N.Y.L. SCH. L. REV. 257, 262 (1993) ("The 'new feminism,' in its preoccupation with the sexual 'harm' inflicted on women by men-pornography, sexual harassment, and rape (all of which are conflated into a single 'continuum' of sexual violence)-inevitably mirrors and reinforces traditional paternalism toward women. It might be appropriate, then, to characterize the 'new feminists' as 'protective feminists.'").
512. See BARRY FRIEDMAN, THE WILL OF THE PEOPLE 354 & n.314 (2009) (citing Frank Newport & Leslie McAneny, Whose Court Is It Anyhow?: O'Connor, Kennedy, Souter Position Reflects Abortion Views of Most Americans, 322 GALLUP POLL MONTHLY 51 (1992)).
513. See Kim Shayo Buchanan, Lawrence v. Geduldig: Regulating Women's Sexuality, 56 EMORY L.J. 1235, 1245 (2007), at 1245.
514. John Tierney, Op-Ed., Men's Abortion Rights, N.Y. TIMES, Jan. 10, 2006, at A25.
515. Sherry F. Colb, Should Men Have the Right to a "Financial Abortion"? A Biological Father Cries Sex Discrimination When Forced to Pay Child Support for an Unwanted Baby, FINDLAW, Mar. 21, 2006, http://writ.news.findlaw.com/ colb/20060321.html.
516. Stephanie Fairyington, The Parent Trap: Paternal Rights and Abortion, ELLE.COM, May 17, 2010, http://www.elle.com/Life-Love/Society-Career-Power/The-Parent-Trap-Paternal-Rights-and-Abortion. For New York Times readers' comments on the issue, see Readers' Comments to A Father's Reproductive Rights: What happens when a man makes his intentions clear before a child is conceived or born?, http://community.nytimes.com/comments/parenting.blogs. nytimes.com/2010/05/17/a-fathers-reproductive-rights/?sort=newest (last visited Aug. 15, 2010) (many commenters asserting that a man should have no right to prevent a women from having an abortion and should be required to pay child support for a child he does not want, while a some argue a man's opposition to a woman's decision to take a pregnancy to term should exempt him from having to pay child support).
517. Anne M. Payne, Annotation, Parent's Child Support Liability as Affected by Other Parent's Fraudulent Misrepresentation Regarding Sterility of Use of Birth Control, or Refusal to Abort Pregnancy, 2 A.L.R.5th 337, § 2(a) (1992), § 2(a) ("To date, the courts have refused to deem a woman's decision to bear a child despite the objections of the child's father, even where he has offered to pay for an abortion, to create an unconstitutional infringement on the father's federal or state equal protection or due process rights.").
518. The number of abortions falls as the expectation that men will have to pay child support rises because women are "encouraged by the potential economic security that the father may provide." Jocelyn Crowley, Radha Jagannathan, & Galo Falchettore, The Effect of Child Support Enforcement on Nonmarital Births and Abortion in the United States, at 22. A similar dynamic may lead pregnant women considering an abortion because they are worried about loss of income due to their pregnancy to take it to term once they know additional pregnancy support will be coming.
519. In the context of discussing the utopian nature of her theory, Martha Fineman writes: "The production of practical suggestions is not the only justification for theory, however. Sometimes revisioning, even if utopian, is valuable simply because it forces us to look at old relationships in new lights and thereby understand some things about how we perceive the natural or normal, as well as how we create the deviant." See MARTHA ALBERTSON FINEMAN, THE NEUTERED MOTHER, THE SEXUAL FAMILY AND OTHER TWENTIETH CENTURY TRAGEDIES 230-33 (1995), at 232.