Author ORCID Identifier
Privacy doctrines, Single mothers, Societal norms, Family unit, Poverty, State interference, Legal remedies, Constitutional articulation of privacy
In this paper I undertake a very pragmatic and focused consideration of whether it is possible to rework existing legal concepts of privacy in a way that would be ideologically compatible with dominant social norms in order to shield single mothers from excessive state regulation and supervision. I ultimately conclude that my desire to protect the decisionmaking autonomy and the dignity of poor and/or single mothers cannot be satisfied by resort to this area of law. At the constitutional level, this is so because notions of privacy are typically articulated as rights belonging to individuals, not family entities. And in the common law, the concepts of "family" or "entity" privacy similarly fail to protect poor and single mothers because these concepts have been developed and employed in the context of widely shared ideological constructions of what constitutes the "natural" family. This image of the natural family in turn serves as the norm in our understandings of intimacy in discussions of the family. For the law to assert that poor and/or single mothers are, or should be, included within the realm of "normal" and "natural" families, and therefore entitled to privacy, would require a leap of legal imagination not likely to be undertaken without the safety net of dominant social and cultural concurrence.
The development of privacy doctrine has thus been limited by societal assumptions about intimacy, families, and individuality, and by ideas concerning fairness and just deserts. The question arises, however, whether privacy, even if it is a concept embedded in social and cultural presuppositions, could be rehabilitated or reworked to include single mother families? There are both ideological and doctrinal barriers to this endeavor. As things now stand, it does not seem likely that an emphasis on privacy will do anything other than further reinforce the ideology of the natural or normal family. In fact, it may be that continued emphasis on privacy as the concept to constitutionally protect certain sorts of intimate behavior will serve to deter the development of other legal principles that might help to limit state regulation of poor and single mother families.
Connecticut Law Review
Martha Albertson Fineman, Intimacy Outside of the Natural Family: The Limits of Privacy, 23 CONN. L. REV. 955 (1991).