Author: Jennifer Hendricks


Cookies and the Affordable Care Act

No, this is not a post about how the government is going to force you to buy cookies, even if that would be better than broccoli. It’s about how I came to realize that the minimum coverage provision is doomed: because one of the first things I learned as a litigator was that judges like to give a cookie to each side.

Until last week, I thought the individual mandate stood a chance of being upheld. Specifically, I thought that Justice Scalia might have enough intellectual honesty to stick to the logic of his Raich concurrence and vote to uphold the law.

But last week, the liberal blogosphere started lighting up with dire warnings about the ACA’s expansion of Medicaid, which is on the chopping block tomorrow. “You think the argument against the mandate is radical,” they intoned, “but look at this threat to the spending power.” This Supreme Court is so radical, the argument runs, that it is poised to declare the modern administrative state unconstitutional, in the absence of any split in the lower courts or even any plausible argument based on precedent.

That’s when I realized that Medicaid is the cookie for the left, and the only reason for the cert. grant on that issue was to make the Court look moderate when it strikes down the rest of the ACA. Of course, it only takes four to grant cert. But the Cookie Principle is also useful when four are trying to win over a fifth Liberals ought to stop raising the hue and cry that will make the Court seem restrained when it “only” strikes down minimum coverage.


Activity, Inactivity, Dawn, and Dusk

In today’s argument, Justice Kennedy seemed interested in the ACA challenger’s argument that the minimum coverage rule uniquely requires individuals to venture out into commerce, rather than pegging the law to some supposed pre-existing participation in commerce.

The activity/inactivity distinction is, of course, intellectually incoherent. Every first-year Torts students ought to learn to run circles around that sort of dichotomy. The reason they learn to do so, however, is that such distinctions and their incoherence make up the bread and butter of lawyering – all sorts of intellectually incoherent distinctions are nonetheless legally important. The existence of dawn and dusk does not negate the distinction between night and day.

The question, then, is how to figure out when such a distinction deserves to become a legal rule. The answer, I think, lies in the method of the common law. The reason that the activity/inactivity distinction doesn’t work is that it was invented to go after a particular law, rather than developing organically out of any underlying feature of commerce clause jurisprudence.


Who is a Biological Parent?

A pet peeve of mine is the use of the term biological parent as a synonym for genetic parent, especially in the context of surrogacy contracts. What’s wrong with this? First, it defines parenthood in terms of the connection that men have with their biological children. As sociologist Barbara Katz Rothman has pointed out, we wrongly discount pregnancy and birth when we speak of a “blood” relationship between parent and child as “the metaphorical blood of the genetic tie,” rather than “the real blood of pregnancy and birth … the mingled blood of mothers and their children.” I developed this point in an article a few years ago, arguing that a gestational mother is a “biological mother,” for purposes of Supreme Court precedent that treats a biological relationship as a prerequisite for a constitutional claim of parental rights.

Second, in the course of my current research project, I’ve learned more about why “biological parent” is inaccurate when used to exclude a gestational mother. The developing field of epigenetics studies how genes interact with environmental factors that influence gene expression–whether, when, and how particular genes are turned “on” or “off”. It turns out that the environment–including the “gestational environment”–can have heritable effects. For example, the diet of a pregnant mouse can be manipulated so that her offspring are either black or yellow, even though they are genetically identical. That isn’t surprising. What is surprising, however, is that the effect persists into the next generation, as part of the heritable “instructions” that are passed down from one generation to the next, still without a change in DNA. Even if we define parenthood on the basis of the transmission of heritable traits, gestation seems to qualify.

This research has had an interesting reception in the reproductive technology industry. Agencies that sell “donor eggs” have touted epigenetic research in order to reassure recipients that they are “real” mothers by virtue of gestation, even if they don’t provide DNA. On the other hand, participants in surrogacy arrangements tend simply to reject the claim that the gestational mother can affect who the child is.


Spousal Hiring and Gender

Over at Prawfsblawg, Howard Wasserman has started an interesting discussion about spousal hiring in the legal academy. Responding to comments by Jeffrey Harrison on Class Bias in Higher Education, he discusses the pros and cons and whether the practice deserves the epithet “cronyism”—or, as Professor Harrison calls it, “the new cronyism.” Commenters have suggested that spousal hiring is class biased because two-academic couples are more likely to come from a privileged background and that spousal hiring may interfere with diversity goals.

I agree with Professor Wasserman that spousal hiring can be a useful recruiting tool and that some help for the spouse is a near-necessity for schools in remote locations.  I would be interested in statistics about the demographic characteristics of two-academic and one-academic couples. But as long as we’re sticking to anecdote, my experience is the opposite of Professor Wasserman’s that “a heterosexual male faculty member is just as likely these days to have a wife with a career as the converse.” A surprisingly large number of my male colleagues (at my institution and elsewhere) are married to women who work part-time or not at all outside the home. Yet I know only two women in the legal academy whose partners are at home with their children—and one of the partners is a woman, too.

If my experience is typical, it follows that resistance to hiring spouses—or even helping out with the spouse’s job search by networking with local firms, which Professor Harrison also objects to—is a barrier to hiring women. By my count, in the last six years, the lack of opportunities for a spouse or partner has caused my institution to lose four candidates to whom we offered jobs—one man and three women. In their stead, we hired one woman and three men.

Traditionally, women have been the “trailing spouses,” accepting lectureships and the like in order to follow their husbands, often at the expense of their own career prospects elsewhere. The only thing “new” about spousal hiring in academia is that it now goes both ways.


Pregnancy and Disability

Yesterday I posted about a dilemma in parental leave policies: The desire for formal sex equality leads to equal “caretaking” leave for men and women; when this leave is paid by the employer, it is typically quite short. The reality of biological differences is dealt with by providing separately for “disability” leave for pregnant and birthing women, often for a much longer period. In practice, that means that a woman who gives birth has an extended opportunity to bond with and care for a new child, while people who become parents in other ways do not. This creates an early discrepancy in caretaking between birthing and non-birthing parents. When children are adopted, the family as a whole suffers from not having that extra leeway for caretaking.

A woman in New York has filed a suit challenging these inequities in a novel way: Kara Krill received 13 weeks of paid maternity leave when she gave birth to her first child. Krill was unable to bear another child, and she and her husband hired a gestational surrogate, who gave birth to twins. This time, Krill was allowed only 5 days of leave, under the company’s policy for adoptive parents. Her suit alleges disability discrimination, saying that if it weren’t for her disability, which required her to have her children through a surrogate, she would have given birth and been entitled to the full 13 weeks of leave.

Krill faces an uphill battle under current law. I’m drawn, however, to the idea of designing parental leave policy around the idea that the inability to give birth is a disability that should be accommodated—and not just for women. Read More


Sex Equity in Parental Leave

Many thanks to Solangel, Dan, and the rest of Co-Op for inviting me to blog here this month. I’ll start out with a few posts about parental leave policies, inspired by this story about a woman named Kara Krill. (H/T Family Law Prof Blog) Krill had children through a surrogate mother. When her employer refused to give her the same maternity leave that is available to employees who give birth, she sued for disability discrimination. But first some background on the core dilemma of U.S. equality law when it comes to parental leave:

U.S. law aspires to formal equality for women and men in the workplace. When it comes to parental leave, that has meant maintaining a sharp theoretical separation between pregnancy leave and caretaking leave. Under the Pregnancy Discrimination Act, pregnancy leave is treated as disability leave and is supposed to cover the period of time in which pregnancy and birth disable a woman from doing her job. Caretaking leave—time to bond with and care for a new baby—is supposed to be available on a sex-neutral basis. In Nevada v. Hibbs, when the Supreme Court upheld the Family and Medical Leave Act as applied to the states, it said that Congress could legitimately force employers to give (unpaid) caretaking leave to everyone, in order to address the problem of many employers giving such leave to women only, by calling it “pregnancy leave” even when it was much longer than necessary for physical recovery from birth.

The distinction between pregnancy/disability leave and caretaking leave is neat in theory but breaks down immediately in practice. Read More