Roe's Effects on Family Law

Abstract

Family 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.

Generally, 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.

Family law has experienced some dramatic changes in the forty years since this landmark decision, which are covered in Part I. The ease of obtaining a divorce has increased, while the statutory requirements for entering into marriage are undergoing alteration, and more individuals are opting out of marriage in favor of cohabitation. Parenting rights and duties have changed, and rights and privileges of children have been altered.

This article examines whether, how, and why any of those changes are related to Roe. 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 decision-making in family law generally are the focus of Part IV. Finally, Part V offers some conclusions as to Roe’s effect on family law.

Keywords: Family Law, abortion, marriage, romance, parent and child, mature minor, safe haven

JEL Classification: J10, J18, K10, K11, K17, K18