Women & the law final exam until 4/3

I. Child Custody and Economic Issues in Divorce

Statutory Criteria and Gender Norms

In family law, child custody decisions are guided by state-specific statutory criteria, often built around the best interest of the child. While statutes are written to be gender-neutral, in practice, gendered assumptions have historically played a role in custody decisions. Courts have sometimes leaned toward awarding custody to mothers, especially in cases involving younger children, due to traditional caregiving roles.

However, courts are increasingly recognizing father’s rights, especially when the father has been a primary caregiver or has actively participated in childrearing. There's also a growing legal and cultural shift toward joint custody, which aims to balance parental responsibilities post-divorce and prioritize the child's relationship with both parents.

Case: David M. v. Margaret M. (W.Va. 1989)

This case explores how custody decisions interact with broader divorce proceedings. The court emphasized that custody should not be treated as a tool for punishing or rewarding spouses. Instead, the decision must rest on what promotes the child’s welfare. The ruling also underscores how legal frameworks can shape post-divorce family dynamics, and how courts sometimes struggle to apply uniform principles in emotionally charged contexts.

Case: Stevens v. Stevens (Ohio Sup. Ct. 1986)

In Stevens, the court faced a challenge in dividing career-based assets—particularly the increased earning capacity gained during the marriage due to one partner’s education or career development. The court ruled that such earning capacity can, under some circumstances, be considered a marital asset. This broadens the concept of property in divorce and shows how economic contributions—not just financial—factor into division of assets.

Case: Zelasko v. Zelasko (Mich. Ct. App. 2019)

Zelasko focuses on the division of marital property. The opinion clarifies how courts evaluate what counts as marital versus separate property, and what counts as an equitable distribution. Key considerations include duration of marriage, contributions (both financial and non-financial), and future economic prospects. The case reinforces how divorce law attempts to correct post-marital economic imbalances without relying on strict formulas.

Case: Jowiski v. Gustafson-Jowiski (Ohio Ct. App. 2024)

This recent case examines the division of pension rights, highlighting how courts approach long-term and deferred compensation. Even though pensions may not be realized until years after divorce, they are considered marital property if accrued during the marriage. This case illustrates how courts aim to ensure economic fairness even in the face of uncertain or delayed assets.

II. Economics: Property, Alimony, Child Support

Economic Framework

The financial consequences of divorce are central to family law. Courts divide marital property, award spousal support, and determine child support obligations—each using a mix of statutory rules and judicial discretion. These decisions have a massive effect on post-divorce economic outcomes.

Spousal Support (Alimony)

Spousal support is intended to mitigate unfair economic disparities. It is often awarded when one spouse has significantly higher earning power, especially when the other sacrificed career opportunities for domestic work. However, long-term alimony is less common now than in previous generations; courts increasingly expect both parties to become economically self-sufficient.

Child Support

Child support is governed by state statutes, usually using income-based formulas. Recent reforms have sought to standardize and enforce payment more effectively. However, there are ongoing debates about fairness—especially in cases involving shared custody or complex financial arrangements.

Post-Divorce Economic Status

Empirical research shows that divorced women, especially those with children, often face significant economic challenges, while men tend to recover more quickly. This pattern is explained by gendered income gaps, uneven caregiving roles, and long-term effects on employment. Though these gaps have narrowed somewhat over time, the economic fallout of divorce remains a significant area of legal and policy concern.

III. Abortion and Reproductive Rights: From Griswold to Casey

Background: Anti-Abortion Laws and Their Origins

Prior to the 1970s, abortion laws were heavily restrictive across the U.S. These laws developed in the 19th century largely as public health and moral legislation, often criminalizing abortion entirely. Over time, activists, lawyers, and physicians began pushing for reform, driven by rising concerns about women’s health, privacy, and equality.

Case: Griswold v. Connecticut (1965)

In Griswold, the Supreme Court struck down a Connecticut law banning contraceptives, grounding its decision in a constitutional right to privacy—a concept not explicitly in the Constitution but inferred from several amendments. This case set the stage for Roe by establishing a zone of privacy around intimate, reproductive decisions.

Case: Roe v. Wade (1973)

Roe made abortion legal nationwide by extending the privacy right recognized in Griswold. The Court ruled that women have a constitutional right to terminate a pregnancy, at least during the first trimester, based on a balancing test: the woman’s right to privacy versus the state’s interest in protecting prenatal life. Doe v. Bolton, Roe’s companion case, extended these protections by requiring that health exceptions be interpreted broadly.

Case: Planned Parenthood v. Casey (1992)

Casey re-affirmed Roe but modified its framework. The Court rejected the trimester system and instead imposed the undue burden standard: states may regulate abortion as long as they do not place a “substantial obstacle” in the way of a woman seeking one before fetal viability. Casey allowed for more state-level restrictions, including waiting periods and parental consent laws, as long as they didn’t effectively ban abortion outright.

Other Notable Cases

• Harris v. McRae (1980): Upheld the Hyde Amendment, allowing the federal government to deny Medicaid funding for most abortions. Shows how financial barriers can restrict access even if abortion is technically legal.

• Webster v. Reproductive Health Services (1989): Allowed Missouri to impose restrictions such as barring public employees from performing abortions. This case eroded Roe by allowing more aggressive state intervention.

• Stenberg v. Carhart (2000) and Gonzales v. Carhart (2007): Both cases dealt with the constitutionality of banning specific abortion procedures (e.g., “partial-birth abortion”). The latter upheld a federal ban, showing the Court’s growing deference to moral arguments made by legislatures, even at the expense of medical discretion.

IV. Politics and the Legacy of Roe

Post-Roe Political Landscape

After Roe, the abortion debate became a defining feature of American politics. Pro-life and pro-choice groups mobilized, shaping elections, legislation, and judicial appointments. Efforts to overturn Roe included attempts to pass constitutional amendments and restrict federal court jurisdiction over abortion. While Roe technically survived for decades, its practical scope was narrowed by court decisions and state regulations.

Public opinion remained split, with many Americans supporting limited access but also favoring some restrictions. State laws varied dramatically—some expanding access, others imposing barriers. Clinic availability, funding, and local political climates created real disparities in abortion access across the U.S., especially in rural and Southern states.

Research: Jones, Kirstein, and Philbin

This article tracks abortion incidence and service availability, offering evidence that legal access does not guarantee practical access. Even where abortion is legal, restrictions and clinic closures limit availability, pushing some patients toward unsafe or out-of-state options. The study reinforces the idea that law and lived experience often diverge, particularly for low-income women and women of color.
I. CHILD CUSTODY AND ECONOMIC ISSUES

Case: David M. v. Margaret M. (W.Va. Sup. Ct. 1989)

Issue: Custody dispute in divorce proceedings
Context: David and Margaret were divorcing, and custody of their children became contested. The trial court initially awarded custody to the mother, citing her role as the primary caregiver.
Arguments:

• Father (David M.): Claimed that the trial court unfairly favored the mother due to gendered assumptions, and that he was fully capable of providing emotional and financial support.

• Mother (Margaret M.): Emphasized her consistent caregiving role and argued for continuity and stability for the children.
  Ruling & Reasoning: The court acknowledged the traditional maternal preference but emphasized a move toward gender-neutral standards. It stressed that custody must be based on the best interests of the child, not outdated gender roles.
  Implications: This case reflects a transitional moment in family law: courts recognizing the need to shed maternal biases while still prioritizing caregiving history. It underscores the legal system’s struggle to reconcile evolving gender norms with entrenched expectations about parenting.
  Consequences: The ruling pushed lower courts to justify custody decisions using specific criteria (e.g., stability, emotional bonds, parenting skills), not gender heuristics. It also contributed to wider judicial trends supporting joint custody and paternal rights.

Case: Zelasko v. Zelasko (Mich. Ct. App. 2019)

Issue: Equitable division of marital property in divorce
Context: The dispute centered around the value and division of marital assets, including retirement accounts, personal property, and post-separation income.
Arguments:

• Wife: Sought a larger share of marital assets, citing unequal earning power and non-financial contributions (e.g., homemaking, childcare).

• Husband: Argued for a 50/50 split and claimed that some assets were separate property due to pre-marital ownership or inheritance.
  Ruling & Reasoning: The court used equitable distribution principles, distinguishing between marital and separate property. It factored in length of marriage, economic disparity, and non-financial contributions. It ultimately awarded the wife a greater share of certain assets to account for her diminished earning capacity and homemaking role.
  Implications: The case reaffirms that equality doesn’t always mean 50/50. Courts are allowed, and even encouraged, to weigh economic fairness and recognize non-monetary marital contributions. Consequences: Reinforces modern approaches to divorce law that move away from rigid arithmetic and prioritize functional equality over formal equality. Also encourages more careful documentation of separate vs. marital assets.

Case: Jowiski v. Gustafson-Jowiski (Ohio Ct. App. 2024)

Issue: Division of pension rights and future income streams
Context: The spouses were divorcing after one partner accumulated significant pension rights during the marriage. The question was how to divide these rights before they had vested or paid out.
Arguments:

• Spouse A (Pension holder): Argued that because the pension had not yet paid out, it should be considered a future asset and not subject to division.

• Spouse B: Claimed that the pension accrued during the marriage and thus constituted marital property, regardless of payout timing.
  Ruling & Reasoning: The court ruled for Spouse B, holding that pensions are deferred compensation and should be treated like any other marital asset accrued during the marriage. The court emphasized timing of accrual, not realization.
  Implications: This decision reinforces the legal norm that marital economic partnerships include future earnings potential when it’s the result of shared marital effort. It helps prevent one spouse from walking away with all the long-term gains of joint investments in education or job development.
  Consequences: Encourages spouses to think more holistically about long-term financial entanglements, and sets a precedent for the treatment of retirement and pension plans as divisible property in equitable division states.

Case: Stevens v. Stevens (Ohio Sup. Ct. 1986)

Issue: Allocation of career assets and earning capacity
Context: One spouse supported the other’s graduate education and career development. At divorce, the supporting spouse sought compensation for their investment in the other's career.
Arguments:

• Supporting Spouse: Claimed that their labor and sacrifices (e.g., working multiple jobs, pausing their own education) should be recognized in asset division, even though the primary gain was in the other spouse’s future earning potential.

• Professional Spouse: Argued that career success was intangible and not subject to division; only actual assets should be divided.
  Ruling & Reasoning: The court sided with the supporting spouse. It held that enhanced earning capacity due to education or professional training obtained during marriage can, under equitable principles, be considered a marital asset. The court did not treat the degree as “property,” but did allow for compensation through spousal support or property redistribution.
  Implications: Signals an acknowledgment that economic contributions include support roles, not just direct earnings. Also shows the court’s willingness to use creative remedies to achieve fairness. Consequences: Influenced later rulings that recognized degrees and licenses as factors in determining economic equity post-divorce, particularly in marriages involving significant human capital investments.

II. ABORTION & REPRODUCTIVE RIGHTS

Case: Griswold v. Connecticut (1965)

Issue: Constitutionality of a Connecticut law banning the use of contraceptives
Background: The law criminalized the use of contraceptives even by married couples. Griswold, head of Planned Parenthood in Connecticut, was arrested for providing contraception.
Arguments:

• State of Connecticut: Defended the law on grounds of public morality and state police power.

• Griswold (Plaintiff): Argued that the law violated the right to marital privacy—a liberty interest the state should not intrude on.
  Ruling & Reasoning: The Supreme Court struck down the law, holding that various constitutional “penumbras”—including the 1st, 3rd, 4th, 5th, and 9th Amendments—create a zone of privacy. Though not explicitly written in the Constitution, privacy was deemed a fundamental right, particularly in marriage.
  Implications: Griswold lays the foundational logic for Roe: that intimate, reproductive decisions are shielded from government intrusion.
  Consequences: Established the doctrine of substantive due process in modern constitutional law, and began a line of cases expanding privacy rights to individuals (eventually including contraception access for unmarried people and abortion).

Case: Roe v. Wade (1973)

Issue: Constitutionality of Texas laws that criminalized most abortions
Background: “Jane Roe” (Norma McCorvey) challenged Texas statutes that banned abortion except to save a mother’s life.
Arguments:

• State of Texas: Asserted a compelling interest in protecting prenatal life and regulating morality.

• Roe: Argued for a woman’s right to choose, grounded in the privacy right from Griswold, and emphasized the burdens of unwanted pregnancy.
  Ruling & Reasoning: The Court declared abortion a fundamental constitutional right under the 14th Amendment’s due process clause. It introduced the trimester framework:

• 1st trimester: state may not regulate

• 2nd trimester: state may regulate in interest of mother’s health

• 3rd trimester: state may regulate or prohibit, except where mother’s life/health is at risk
  Implications: Roe was a watershed moment in reproductive rights, setting a national standard and overriding restrictive state laws. But the Court’s reliance on judicially-created doctrine (rather than explicit text) made it politically vulnerable.
  Consequences: Triggered decades of political mobilization on both sides, launched a constitutional culture war, and placed the Court at the center of national abortion policy.

Case: Doe v. Bolton (1973)

Issue: Georgia’s procedural and medical requirements for abortion
Significance: Companion to Roe, Doe broadened the definition of a woman’s health to include physical, emotional, psychological, familial, and age-related factors.
Arguments:

• State of Georgia: Defended restrictions such as requiring multiple physician approvals and limiting the procedure to accredited hospitals.

• Doe: Argued these were undue burdens on access.
  Ruling: The Court invalidated many of these barriers.
  Implications & Consequences: Expanded the scope of Roe—in practice, it meant that a post-viability abortion could still be permitted under a broad medical exception, making outright bans harder to implement.

Case: Planned Parenthood v. Casey (1992)

Issue: Pennsylvania’s abortion restrictions, including spousal notification and a 24-hour waiting period
Background: The Court revisited Roe amidst political pressure to overturn it.
Arguments:

• Planned Parenthood: Claimed the laws placed undue burdens on women, especially low-income or abused women.

• Pennsylvania: Argued for a legitimate state interest in promoting childbirth over abortion and ensuring informed consent.
  Ruling & Reasoning: The Court reaffirmed the core holding of Roe (a constitutional right to abortion before viability), but discarded the trimester framework. It introduced the undue burden standard: a law is unconstitutional if it places a “substantial obstacle” in the path of a woman seeking a pre-viability abortion.
  Outcome: Struck down the spousal notification requirement, but upheld the waiting period and informed consent rules.
  Implications: Gave states more power to regulate abortion, as long as they didn’t create a practical barrier. Shifted the framework from strict scrutiny to a looser standard, making Roe more vulnerable. Consequences: Casey opened the door to state-level restriction creep—laws designed to push the boundaries of what counts as an “undue burden.”

Case: Harris v. McRae (1980)

Issue: Whether the federal government must fund medically necessary abortions for Medicaid recipients
Background: The Hyde Amendment banned the use of federal funds for abortion, except to save the life of the mother or in cases of rape/incest.
Arguments:

• Harris (Plaintiff): Claimed the funding ban violated equal protection and the rights of poor women.

• Government: Argued there is no constitutional obligation to fund the exercise of a constitutional right.
  Ruling: The Court upheld the Hyde Amendment.
  Implications: While the government cannot ban abortion, it can choose not to fund it, reinforcing the distinction between negative rights (freedom from interference) and positive rights (entitlement to support). Consequences: Made access to abortion effectively unequal—poor women faced far greater obstacles, highlighting economic disparities in reproductive freedom.

Case: Webster v. Reproductive Health Services (1989)

Issue: Missouri law declaring that life begins at conception and restricting public resources for abortion
Arguments:

• Clinic: Argued these provisions violated Roe by placing undue restrictions on abortion access.

• State: Claimed it had a legitimate interest in protecting potential life and could set moral boundaries on how public resources are used.
  Ruling: The Court upheld most of the law, signaling increased deference to states.
  Implications: Webster was the first real sign that Roe was being chipped away, even if not overturned. It validated the use of symbolic legislation (e.g., statements about life beginning at conception) as a way for states to set a pro-life agenda. Consequences: Emboldened conservative states to pass more restrictions and test the Court’s tolerance for regulation.

Cases: Stenberg v. Carhart (2000) & Gonzales v. Carhart (2007)

Issue: Bans on specific abortion procedures (often labeled “partial-birth abortion”)
Background: Both cases addressed intact dilation and extraction (D&X), a late-term abortion method.
Arguments:

• Pro-choice side: Argued that banning specific methods interferes with medical judgment and places women at risk if alternative procedures are less safe.

• Pro-life side: Claimed that the procedure is inhumane and that states have an interest in expressing moral disapproval and protecting fetal life.
  Rulings:

• In Stenberg (2000), the Court struck down Nebraska’s law due to the lack of a health exception.

• In Gonzales (2007), the Court upheld a federal ban (the Partial-Birth Abortion Ban Act), despite a similar lack of exception, emphasizing that Congress could make moral judgments even in areas of medical disagreement.
  Implications: Shifted the Court’s tone from protecting abortion access to allowing symbolic moral legislation that limits doctor discretion. Consequences: Marked a hard-right turn in abortion jurisprudence. Suggested the Court was now comfortable upholding pre-viability restrictions, even if they reduced procedural options.

Jones, Kirstein & Philbin – “Abortion Incidence and Service Availability”

Core Question: What are the real-world effects of legal changes and policy shifts on abortion access?

Findings:

• While abortion was legal post-Roe, actual access varied dramatically by geography, income, and race.

• There was a steady decline in the number of abortion providers, especially in rural areas and conservative states.

• State-level restrictions (e.g., waiting periods, parental involvement laws, TRAP laws) significantly reduced the number of clinics.

• Many women, particularly in the South and Midwest, had to travel hundreds of miles, take time off work, and arrange child care to access services.

• Legal developments had a clear chilling effect on provider availability and patient behavior.

Implications:

• Legal recognition of a right does not ensure meaningful access.

• Restrictive laws, even when technically constitutional, can have de facto exclusionary effects, especially on the most vulnerable populations.

• The article paints a clear picture of inequality in reproductive health, arguing that law must be analyzed not just for its symbolic power but for its material outcomes.