Yale Law School

Open Scholarship Repository

Family law conventionally treats parenthood as binary: A child has two, and only two, parents. These two parents possess all parental rights and responsibilities, which cannot be shared with others. Their status as parents remains fixed throughout the child’s life. Today, legislatures are explicitly challenging this view. Ten jurisdictions now have multiparent statutes, i.e., laws that authorize courts to recognize more than two legal parents. Commentators tend to view this development as a radical change in the law intended to accommodate radical new family forms produced by assisted reproduction, LGBTQ family formation, and polyamory. But the accuracy of these assumptions—about the ways in which these statutes represent a break from the past and the types of families they capture—has remained unexamined. This Article is the first to do so through an empirical study. Analyzing all publicly available judicial decisions issued pursuant to multiparent statutes, we show that the families they accommodate are not novel and rare family arrangements involving planned and well-resourced LGBTQ parents, but instead more familiar and common ones, emerging out of re-partnering and caregiving by extended family members and often resulting from challenges related to poverty. We also show that extending parental rights to more than two people is a longstanding practice in family law. Drawing on a second dataset consisting of all publicly available judicial decisions applying a functional parent doctrine over four decades, we find that courts long have accommodated multiparent families. For decades, courts have authorized the sharing of parental rights and responsibilities across more than two individuals, often recognizing people who come into children’s lives long after their birth. Our empirical study of multiparent recognition challenges conventional assumptions about the life and law of parenthood itself. Families commonly construct parent-child relationships in ways that are nonbinary—sharing parental rights with more than one other person and altering a child’s parental unit over time. For their part, courts too have resisted a view of parenthood as binary. They have recognized that many children have more than two parents; that parental rights and responsibilities can be unbundled and shared; and that a child’s parents may change over time. Our empirical account also suggests that many of the concerns raised about multiparent recognition are inapposite or overstated. Imagining a planned multiparent amily with three involved parents, commentators worry that laws allowing multiparent recognition will produce bitter custody litigation, complicated tri-custody orders, and ongoing conflict with three parents sharing legal rights and responsibilities. Yet, across both datasets, the children rarely have three parents assuming parental responsibilities. Legal recognition of more than two parents typically promotes security and stability for children, not by protecting relationships with multiple involved parents, but instead—and counterintuitively—by protecting children’s primary parental relationship. Accordingly, our study leads us to be less concerned with too much multiparent recognition and instead to be more concerned with too little multiparent recognition.

As the Supreme Court prepares to roll back protections for the abortion right, this Article analyzes the logic of pro-life constitutionalism in June Medical Services L.L.C. v. Russo. I expand the frame on June Medical to examine the logic of women protective health-justified restrictions on abortion.2 Do these laws protect women or the unborn—and how? By considering the history of the law at issue in June Medical and locating it in broader policy context, we can see how legislators who restricted abortion to protect women’s health equated women’s health with motherhood; they supported laws that push women into motherhood while declining to enact laws that provide for the health of pregnant women and the children they might bear. Expanding the frame on Louisiana’s pro-woman pro-life law shows us sex-role stereotyping in action, and demonstrates the intersectional injuries it can inflict. From this vantage point, we can see that judges who refuse to scrutinize pro-life law making—on the grounds that it would involve judges in politics—help legitimate the claims about protecting women’s health that supposedly justify the abortion restrictions, while revising the meaning of theConstitution’s liberty and equality guarantees. Reading the doctrinal debate in June Medical in this context identifies open and hidden efforts to roll back protections for the abortion right—and suggests how the Supreme Court that President Donald Trump helped fashion values women, health, life, truth, and democracy.

An exploration of the law of Medicare and Medicaid, fifty years in, will be viewed by some as asking for trouble. The search for "law" in health has had a quixotic quality: many forests have been sacrificed in service of arguments that the concept of health law has as much purchase as the concept of a law of concrete.