Doing Better for Child Migrants

Professor Ann Laquer Estin’s Child Migrants and Child Welfare: Toward a Best Interests Approach makes several important contributions to our understanding of the complicated legal questions posed by a timely and too often tragic phenomenon: large numbers of unaccompanied child migrants, including many coming into the United States. Estin helpfully disentangles and explores the welter of possibly applicable laws, from U.S. constitutional provisions to international human rights laws, federal immigration laws, and state family laws. Her careful analysis also exposes significant gaps, pointing out how some issues fall between relevant bodies of law. Although each of the sources of law canvassed in the article is animated by its own set of values and assumptions, Estin’s bottom line is that “we can and should do better” for the children in question. As an American family law expert, Estin identifies her principal area of concern as “assur[ing] that the federal agencies who take custody of unaccompanied minors are adequately addressing children’s needs for care and protection as the process unfolds, including their need for legal representation”—responsibilities assigned to the Office of Refugee Resettlement (ORR) in Department of Health and Human Services. Given her expertise and her central concern, Estin recommends infusing all the different areas of law pertinent to child migrants with due regard for family law’s ubiquitous “best interests principle.” For those of us who lament how harm to children has become acceptable collateral damage in the pursuit of stricter immigration laws and enforcement practices, Estin’s call to focus on children and to do better for them comes none too soon. This response examines whether the best interests principle is up to the job, in light of lessons learned from child custody disputes and controversies about child migrants, past and present

Telling the Story of Justice Sandra Day O\u27Connor

This Article critiques Evan Thomas’s biography First: Sandra Day O’Connor by examining both intimacy and gender. Focusing on the role of gender, which this piece opines to be thin and unsatisfying. By rejecting the label “feminist,” Thomas ignores “feminist practical reasoning” as an explanation of Justice O’Connor’s approach to deciding cases. In addition, Thomas’s lack of focus on Justice O’Connor’s concurring opinion in J.E.B. v. Alabama, and specifically her ideas as they relate to cultural feminism. In conclusion, one must consider stories, including Thomas’s work, in the whole context, including the role of the storytellers themselves

Accountability, Eugenics, and Reproductive Justice

This analysis contributes to an online symposium on Dov Fox’s book BIRTH RIGHTS AND WRONGS: HOW MEDICINE AND TECHNOLOGY ARE CHANGING REPRODUCTION AND THE LAW. Using eugenics and reproductive justice as points of departure, this review highlights both strengths and weaknesses in Fox’s approach

Doctors, Patients and the Constitution: A Theoretical Analysis of the Physician\u27s Role in “Private” Reproductive Decisions

This Article examines the role of the physician and current medical practice in the changing legal status of abortion restrictions. In doing so, this Article considers constitutional privacy from a perspective different from other inquiries, which almost always emphasize the individual patient as the right-holder, and concludes that, at least in the abortion context, the Court\u27s vision of privacy consistently makes the doctor, not his patient, the centerpiece of the analysis

Gender Contests

This contribution for the “Law, Ethics, and Gender in Medicine” column in the Journal of Gender Specific Medicine interrogates the understanding of gender itself, at a time when transgender and intersex issues were just beginning to “come out” in both popular culture and case law. Against this background, the column explores the roles that physicians have played in such gender contests and considers how evolving medical attitudes can help achieve reform

“Planned Parenthood”: Adoption, Assisted Reproduction, and the New Ideal Family

The purposes of adoption as an institution have come full circle. Historical studies teach us that in ancient times the practice served the interests of the adopter. In American adoption statutes, however, this objective gave way to a more humanitarian goal, providing for the welfare of dependent children, with the “best interests of the child” serving as the guiding principle. Yet today, the social and legal context of adoption once again emphasizes adopters’ interests. In this era of planned parenthood, adoption has become simply one of several avenues for the infertile to pursue in their quest to create a family. In other words, once again adoptive children primarily serve the needs of adoptive parents, with any advancement of child welfare an incidental benefit. We would do well to ask: What can we do to revive the childcentered focus of adoption law? At the very least we might ask what the law can do to make the interests of children needing adoption and those of adults planning parenthood coincide

More Thoughts on the Physician\u27s Constitutional Role in Abortion and Related Choices

A few years ago, I advanced the hypothesis that the true focus of the Supreme Court\u27s decisions protecting abortion has been the physician not the patient, the pregnant woman, nor the individual seeking to assert what the Court calls the right to privacy. I explained how the Court\u27s preoccupation with medical standards in resolving constitutional questions about abortion and the Court\u27s frequent portrayal of the physician as the ultimate decisionmaker in every abortion choice create a tension that peaks in judicial reviews of state efforts to regulate informed consent to abortion. Now, some years later, I look again at the main idea of my earlier work, that the physician is the real centerpiece of the Supreme Court\u27s abortion doctrine. This time I consider two particular questions: First, have the courts continued to elevate the physician at the expense of the abortion patient in the recent assessments of informed consent regulations and in challenges to rules prohibiting abortion counseling, the newest restriction on the abortion patient\u27s dialogue with her doctor? Second, despite its other difficulties, how might the doctor-focused regime contribute to an analysis of recent outgrowths of the abortion question, including fetal tissue transplants (the subject of John Robertson\u27s and Nicholas Terry\u27s papers), abortion pills, forced Caesarians and other maternal-fetal conflicts, and modern reproductive technology