Fineman Speaks to Dobbs

Abstract

It is an honor to comment on the scholarship of the preeminent legal theorist Martha Fineman. Throughout her pioneering career, she has challenged liberal feminist ideals grounded in anti-discrimination principles. She shows how sex neutrality and formal equality in law and policy fail to realize justice for women and children. In the last few decades, she has broadened her analysis to a critique of autonomy as a foundational ideal in law. In its place, she offers an account of the state’s obligation to respond to universal human vulnerability. As an entirety, I have found Fineman’s scholarship important to my own work because it offers a formidable normative argument for affirmative entitlements for caregivers and caretaking. Her specific analyses have ranged across diverse socio-legal arenas from divorce law and child custody, to the structure of the workplace, to public assistance and welfare policies.
 In this Essay, I explore the import of Fineman’s ideas for a pressing feminist issue upon which neither of us have focused in our scholarship: abortion. Given her longstanding focus on the social debt owed to mothers (including men who perform the labor of mothering), it is interesting that Fineman has not specifically spoken to the importance of women’s freedom from motherhood. In this Essay, however, I argue her ideas offer a critique of Dobbs v. Jackson Women’s Health Organization and a theoretical foundation for abortion access. I hope this nascent exploration offers new insight into both the range and power of Fineman’s scholarship and productive paths forward for the reproductive justice movement.