The purpose of this Note is to identify and analyze the interrelated discourses at work in Gonzales v. Carhart, focusing on the woman-protective discourse, in order to reveal the discourse’s origins, expose its manipulations of Casey’s undue burden test, and identify its strengths and weaknesses. Part I of this Note defines and describes the discourses at work in Gonzales, focusing on the cumulative work these discourses perform together and noting a meaningful series of shifts over time. Part II analyzes the woman-protective discourse in a variety of ways in order to draw out its assumptions, expose its historical predecessors, and outline exactly how it has manipulated the undue burden test. Part III examines ways in which this discourse can be resisted, using more traditional feminist methods, as well as ways in which it can be exploited to destabilize the undue burden test and promote women’s autonomy in non-abortion contexts.
Note
Reviewing Premarital Agreements to Protect the State’s Interest in Marriage
Courts and commentators have struggled with the question of whether substantive review of premarital agreements is necessary and, if so, why. Those who eschew substantive review generally equate it with legal paternalism. To the extent that the justification for substantive review rests on notions of cognitive limitations and bounded rationality, it is subject to the criticisms of legal paternalism in general.
Stronger support for substantive review can be found in notions of the public interest in marriage. Furthermore, a focus on the state’s interest in marriage would enable lawmakers to more narrowly tailor the scope of review to protect that interest without unnecessarily infringing on the freedom to contract. The question of the state’s interest in marriage can be defined prospectively and in more concrete terms than the question of whether the parties made a rational decision.
This Note begins by reviewing the historical and current status of premarital agreements concerning the division of property and provision of support following divorce. An analysis of recent court decisions and legislation reveals the extent to which the law continues to monitor the substantive fairness of premarital agreements. Next, the Note examines the arguments for and against paternalism in the premarital context by reviewing recent scholarship on behavioral decision theory. It concludes that procedural safeguards can adequately protect against irrational decisionmaking. Finally, the Note looks at the state’s interest in marriage, how premarital agreements implicate that interest, and ways to efficiently protect that interest.
How Automobile Accidents Stalled the Development of Interspousal Liability
This Note analyzes the development of interspousal tort liability for personal harms following the enactment of the married women’s property acts. The case law is broken down into three periods (1) the 1860s through 1913, when all courts hearing interspousal torts barred them; (2) 1914 through 1920, when a trend permitting the claims developed; and (3) 1921 through 1940, a period in which the seemingly inevitable evolution toward allowing the suits stalled. The existing literature characterizes the law as illustrating a continuing judicial desire to impose patriarchal restrictions on women’s rights and blames the third-period reversal on the stagnation of the women’s movement following ratification of the Nineteenth Amendment. In contrast, this Note removes the case law from the realms of conventional feminist analysis and women’s history. The women’s movement had no direct influence over judicial construction of the married women’s acts, and the alleged post-suffrage stagnation is itself questionable. Instead, this Note suggests that the trend allowing interspousal torts was complicated by the emergence of a new fact pattern: negligent automobile accidents. Following decades of willful tort suits, automobile negligence suits brought the risk of insurance fraud and collusion, which consequently halted judicial willingness to allow them. Because willful and negligent torts were legally indistinguishable based on the text of the statutes, judicial refusal to allow negligent torts translated into a complete bar on interspousal liability.