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Putting Children’s Interests First in U.S. Family Law and Policy: With Power Comes Responsibility    
by Helen M. Alvaré  
Cambridge University Press; 158 pp; US$110.00

Helen Alvaré, an expert in family law and author of a pertinent new book, notes a 2014 Congressional Research Report, indicating that, in the United States, “non-marital births as a percentage of all births has risen from 3.8 percent in 1940, to 5 percent in 1960, to about 18 percent in 1980, to 33 percent in the mid-1990s, to over 40 percent in 2013, where they hover today.”

The federal government financially supports and promotes the Pill, coming up on its 60th anniversary, and other forms of contraception; “yet rates of nonmarital birth are at an all-time high.” This despite the fact that 89 percent of sexually active women use contraception as documented by the US Department of Health and Human Services (HHS) in a 2010 study.

“Women today lead over 80 percent of single-parent households,” writes professor Alvaré in Putting Children’s Interest First in U.S. Family Law and Policy: With Power Comes Responsibility, a concise, dense book on one of the nation’s most persistent and pressing problems, nonmarital births.

“One 2014 study even concluded that the strongest and most robust predictor of economic mobility at the community level is the fraction of children living with single parents. It showed that children who are raised in communities with high percentages of single parents are far less likely to move into a higher socio-economic stratum as adults.”

The author of this study, Harvard economist Raj Chetty, was careful to note that correlation does not imply causation, and other factors such as segregation and school quality are mutually intertwined with family structure, says Alvaré.

“Still, given the amount of scholarship documenting that family structure is both the cause and the consequence of economic and social disadvantages, this study reveals the important attention that nonmarital parenting merits in connection with improving social mobility.”

Helen Alvaré, who teaches law at Scalia Law School, George Mason University, believes the federal government’s response is to promote “sexual expressionism” and agnosticism toward, or even denigration of, stable family structure and marriage -- as evidenced in federal court decisions as well as the executive and legislative branches’ deficient messaging in promoting contraceptives and other forms of birth control.

“To date, however, the federal government has regularly put its thumb on the wrong side of the scale: adults’ sexual expression,” she writes.

Alvaré describes “sexual expressionism” as “valorizing adult sexual expression, while remaining silent or indifferent regarding the adult’s marital status, and to the reality that children’s family structure is usually established at conception.” It is “starkly individualistic” in its focus on the freedom and self-autonomy of the adult to the exclusion of children. Moreover, “it is irresponsible or worse for the government to remain indifferent or inadequately proactive regarding nonmarital birth, especially in light of what society owes children.”

US Supreme Court decisions on privacy, contraception, abortion and homosexual marriage, reveal a shift from concern for marital interests, initially, toward adult sexual expressionism. An oft-cited example is Justice Anthony Kennedy’s opinion in Planned Parenthood of Southeastern Pennsylvania v. Casey, an abortion case, in which he opines that “At the heart of liberty is the right to define one’s own concept of existence, of meaning, of the universe, and of the mystery of human life,” a view more characteristic of Jean-Paul Sartre than Chief Justice John Marshall.

The culmination of this judicial trend was Kennedy’s opinion in Obergefell v Hodges legalizing homosexual marriage and overturning state laws prohibiting it. Kennedy cited the “concept of individual autonomy” and called marriage an “intimate right” of “individual ... self-definition” which also shapes “an individual’s destiny.”

Prior to Obergefell, “children were embedded in the constitutional understanding of the fundamental right of marriage, and the vast majority of states’ marriage recognition statutes,” writes Alvaré.

“From 1879 forward, case after case before the Supreme Court clearly demonstrated that the birth of children and the securing of children’s wellbeing, alongside adults’ interests in companionship and intimacy, together provided the rationale for denominating marriage a fundamental Due Process right, and for recognizing states’ compelling interests in their marriage recognition laws.”

She supports this assertion with a half-page footnote of citations establishing Kennedy’s sharp break with past precedent, and concludes:

“After Obergefell, a state’s interest in the birth of children, and children’s interest in remaining linked to their biological mother and father, cannot ground any state’s marriage recognition law.” s

Putting Children’s Interests First focuses extensively on federal programs promoting birth control, including the Affordable Care Act, and the messaging accompanying these efforts.

The federal government spends nearly US$2.1 billion annually on birth control, with the lion’s share allocated to programs serving lower-income Americans. About 75 percent of spending is through Medicaid with another 10 percent going through Title X of the Public Health Services Act. States spend approximately $225 million more. Originally, these programs were justified by reference to now-forgotten concerns about overpopulation, reducing the number of poor children or even maintaining women’s ability to work.

“The language is rather about avoiding unintended pregnancy, and is often paired with claims about health problems for mothers or children claimed to be linked to a pregnancy’s unintendedness,” writes Alvaré. Federal messaging also communicates that birth control is crucial to women’s freedom and their ability to attain social equality with men.

Alvaré recognizes women’s rights in these matters and her critique is a nuanced one.

“It is rather to point out that when the government indifferently proposes the good of avoiding unintended pregnancy as between married and single women, and does not speak about children’s welfare simultaneously, the government is at least suggesting indifference regarding nonmarital childbirth which is willed or intended.”

The federal website womenshealth.gov advises that “if you are sexually active,” you should set goals about having or not having children without any mention of parents’ responsibility for children and the family structure necessary to support them or “the on-average superior prospects of children in marital families.” The White House Council on Women and Girls from the Obama years used only “neutral descriptive language” to describe single-parent households, marriage and divorce.

Planned Parenthood, a key federal partner and financial benefactor, directly links both contraception and abortion with women’s ability to live “strong healthy lives and fulfill dreams -- no ceilings, no limits.” In one of its publications, it claims that “One of the benefits of single parenting is that you do not have to compromise your values and beliefs with your partner. You can raise your child as you wish.” Alvaré further observes:

“Planned Parenthood provides nothing for any of its audiences on the goods of linking sex and marriage for the welfare of children. Sex is rather characterized as all about the teen or adult partner’s consent to a range of sexual activities, or about self-development and feelings, and perhaps about connection with another human being.”

Another federal grantee of HHS, is the National Campaign to Prevent Teen and Unplanned Pregnancy (NCTUP). Its Bedsider, an “online birth control support” tool, encourages casual sex in its series “Frisky Friday” offering recipes for “aphrodisiac food,” other sex tips and consolation for those depressed by a random sexual encounter. It gets worse with NCTUP’s use of graphics and paraphernalia. It is most definitely sexual expressionist in tone.

What message should the federal government be sending? Professor Alvaré provides a kind of Surgeon General’s health warning which could be amplified, refined, repeated and driven deep into all programs both at the front door and back door of pregnancy.

“Sex is significant not only because it makes an important connection between the adults involved, but also because it makes babies. The moment of conception is also the moment that a child’s family structure is formed. Family structure matters. Parents create their children’s family structure when they have sex, and a stable healthy marriage is the best place for children. If you get in the habit of distancing yourself emotionally and mentally from sexual partners and from the children you might create, it could be harder for you to form a strong marriage later, or for you and your spouse to become dedicated parents. In addition to its health effects on women, it is possible that widespread reliance on contraception increases pressure on women to participate in sex they don’t really want, and thereby also increases rates of nonmarital birth and abortion.”

Towards the end of this well-researched book, Professor Alvaré quotes one forlorn casualty of the campus “hookup culture”, a female student, who says, “The only people telling me not to do this stuff are my parents.” It is past time for the federal government to speak up too.

G. Tracy Mehan, III, is an Adjunct Professor at the Antonin Scalia Law School at George Mason University School of Law, Arlington, Virginia.