Roe's Effects on Family Law

Table of ContentsI. Introduction 1339II. Roe's Effects on the Parent-Child Relationship 1342III. Roe's Effects on Marriage and the Spousal Relationship 1361IV. Roe's Effects on Sexuality, Romance, and the Family Generally 1369V. Conclusion 1383I IntroductionFamily law deals with the regulation of the most sensitive relationships in our lives-those between wives and husbands, between parents and children, and between people who share a household. Family law regulates entry into family status relationships, such as marriage, and the ways to get out of them, such as divorce. It regulates the ongoing nature of those relationships including duties, obligations, rights, and privileges vested in the members of a family by virtue of their relationships with one another.1Generally, state domestic relations law balances two distinct and opposite ends of liberty interests, both of which are of paramount importance to the state: the preservation of family privacy and the protection of individual members of a family. The competition between these two positions has been highlighted in the wake of Roe v. Wade.2 Family law has experienced some dramatic changes in the forty years since this landmark decision. The ease of obtaining a divorce has increased,3 while the statutory requirements for entering into marriage are undergoing alteration,4 and more individuals are opting out of marriage in favor of cohabitation.5 Parenting rights and duties have changed, and rights and privileges of children have been altered.6 This article examines whether, how, and why any of those changes are related to Roe.Roe's effects on these matters of family law warrant review. Part II begins with a discussion of changes to the parent-child relationship since Roe v. Wade. It investigates the regulation of parenting rights, duties, and choices, and the liberty interests of children to receive loving and valued parenting, using both statutory code and popular jurisprudence. Part III considers the changes in marriage since Roe. This Part examines marriage rights and privileges, focusing on how spousal roles are different than they were prior to Roe. Relationships between members within a household, sexuality regulation, and judicial decisionmaking in family law generally are the focus of Part IV. Finally, Part V offers some conclusions as to Roe's effect on family law.Forty years after Roe, alterations to family law include an expansion of the concept of increasing individuality and a contracting sense of community, and both are at least somewhat connected to abortion rights and regulations.7 This Article seeks to demonstrate that these alterations to family law and jurisprudence have generally affected the family as an institution. This expansion and contraction in family law as a whole has included seismic shifts in fundamental foundations of familial relations from what were previously understood, particularly between spouses, between parents and children, and between women and men.8 While all those changes are not necessarily a direct result of Roe, the decision's influence is undeniable.II. Roe's Effects on the Parent-Child RelationshipHistoric recognition of broad parental authority to raise children made the family the basic social, economic, and political unit.9 Historically, parental rights were understood in property terms, and parents possessed virtually unlimited control over their offspring.10 Parents were presumed to be protectors of their children's best interests.11 The state had an interest in the preservation of family strength and privacy.12 When Roe legalized the right to abortion, these notions were changed, revising the parent-child relationship in completely new ways and removing parents from the equation when abortion was involved as a choice for a child. …