Excerpts from this piece by Martha Fineman raise questions and suggest alternative approaches that should be considered by policymakers as we build a sturdy reproductive justice framework for the future.
“A. Constructing the Collective
Both a human rights and a vulnerability approach are concerned with the rules governing human beings and the societies in which they live. However, a rights-based approach is grounded in liberal legal and political theory, whereas the individual of theoretical concern is the venerated holder of rights, ideally autonomous, independent, and cherishing his individual liberty.37 In contrast, vulnerability theory views this particular construct of the individual as ideological and “empirically indefensible” when assessing the appropriate relationship between the individual and society.38 A vulnerability analysis argues that a concern with rights focuses on the individual as an entitled and independent actor and consequently tends to “obscure the continuous and basic role the state plays in society as a whole, as well as the ways in which it defines the lives of all individuals within it.”39
The whole idea of individual rights tends to assume an ideally restrained or necessarily aloof state that may provide some basic essential services but is fundamentally uninvolved in orchestrating the mundane aspects of individual lives. The idea of individual rights, understood in its “negative” sense, serves as a check on the development of an overly active state.40 Of course, the idea of human rights can also be used to make positive claims for economic or social benefits against the state. However, broadly constructed positive rights claims are historically viewed as exceptional, in need of justification, disfavored, and, if recognized, are often in practice under- or unenforceable.41
Jody Wood’s innovative artistic method involves selecting significant social issues or practices to explore and combining the empirical insights of the social scientist with the critical and creative vision of the artist. This critical and constructive interdisciplinary approach has the potential to yield unique and productive insights into those social practices that we may otherwise take for granted. As an artist, her task is not to merely represent or conceptually exemplify reality, but to also reveal transformative possibilities. She seeks to directly engage those encountering her work in this creative process, bringing them into the work as participants rather than mere observers or onlookers. In doing so, she compels us to not only see, but to care about these social practices and the effects they have on our individual and social lives.
In some of her earlier work, Jody addressed pressing issues of societal failure, such as homelessness. Among the significant consequences exposed were the stigma and exclusion imposed on certain members of society as a result of their housing status. The need for compassion and effective social policy in regard to housing for the disadvantaged and dispossessed is certainly important and this project successfully raised those issues. However, while it may have generated feelings of sympathy and concern, the focus on only the situation of some also permitted the viewer of the piece to stand separate and apart: to perceive what is a universal need in terms of “us” (the successful and housed) verses “them” (the unsuccessful and unhoused). The need for shelter is something that all humans share, the critical emphasis on the status of homelessness and the situation of only some deprived individuals obscured the implications of this universal shared reality.
This current piece, The Social Pharmacy, moves beyond a focus on a marginalized segment of population to speak to the dependency and vulnerability that consistently marks every human life. Our vulnerability arises as a result of the fact that every individual body can and will become ill, be injured or find itself otherwise in need of healing. This reality necessitates that we will be dependent on social institutions and relationships throughout our lives. Such a universal perspective, which begins with recognizing the fragility of the body, seems particularly appropriate in this pandemic era. Covid-19 has had tremendous individual and societal consequences that seem to elude both medical and political resolution. The pandemic teaches us (once again) that many problems are beyond individual control and that expectations of self-sufficiency and autonomy are limited at best. The current situation also should make it clear that dependence on social institutions and relationships is inevitable, not exceptional, but normal and routine. A failure to recognize this reality and collectively and individually respond can have devastating destructive consequences for individuals and for societies. We must find and implement society-wide responses to this collective threat to our well-being.
Jody’s artistic intervention by creating a Social Pharmacy also directs us to consider an even more expansive lesson when it comes to social needs: the process of recognizing and responding to human vulnerability and dependency can have positive effects and generate creative opportunities on both an individual and societal level. On an individual level, the project gives us the opportunity to learn and grow from absorbing the stories of those who produced and shared their home-made remedies. These stories can provoke us to “discover” (or uncover) our commonalities with those individuals and generate feelings of recognition and compassion.
In addition, by engaging with these stories, we collectively can create a sense of connection that can tie us together as a community. This process of connecting through engagement is what Jody refers to as “performing collaborative caring,” which, while offered outside of formal institutional structures, hopefully will have implications for how each of us assesses the design and operation of those formal institutional structures going forward. An important contribution of any artistic work is the questions it raises as it challenges the ways in which we had formerly perceived the world. One compelling question taken from this exhibit of collective caring might be: do our healthcare and social welfare systems respond to the realities of human vulnerability and dependency, or are they distorted by an excessive emphasis on the myths of independence and individual autonomy and self-sufficiency? Another might be to ask how we might make those systems better, more responsive to our shared vulnerability and dependency.
Emphasizing the need for community and collective caring does not diminish the status of the individual. An important aspect of this exhibit is that it offers us a lesson about the significance discrete actions can have on the collective welfare. The request that an individual leave behind their own home remedy in the Pharmacy when taking one made by another could be viewed as no more than a “transactional” and individualistic exchange. However, the interpretation more in line with the communalist message the Social Pharmacy coveys is that each individual has been given the opportunity to contribute to the common good, to respond to the collective need. Far from being an obligation, those contributions both express and affirm the individual’s membership within and value to society.
The Social Pharmacy brilliantly reminds us that one important function of art is to provoke critical thought and generate discussion. In this way, art can provide a vital framework for individual and collective assessment of the society in which it is generated and which it ultimately reflects.
Martha Albertson Fineman
Robert W. Woodruff Professor of Law
Founding Director, Vulnerability and the Human Condition Initiative
Below is a statement written by Spring 2022 visiting scholars, Cecília Pazinato Marcon and Maria Fernanda Marques.
During our time as virtual visiting scholars, we had the opportunity to learn more about Professor Fineman’s Vulnerability Theory, and together with our study group in Brazil concerning the Theory, we realized how important the Theory could be to analyze several issues in the Brazilian legal system. There are social, economic, and political rights protected and guaranteed in the Brazilian Constitution of 1988, and there is already a debate concerning this idea of a responsive state, so we thought Vulnerability Theory would be a great contribution to that debate, to expand it beyond the field of constitutional law.
Our study group in Brazil is currently made up of four people: Fabrízia Serafim, who recently completed her Ph.D. at Emory; Fábio Braga, a Ph.D. student at UFPR in Brazil; Cecília Marcon and Maria Fernanda, both undergraduate students of Law at PUCPR and UNEB in Brazil as well.
We have translated to Portuguese one of the very first articles of Prof. Fineman concerning Vulnerability Theory, “The Vulnerable Subject: Anchoring Equality in the Human Condition.” We are currently working on our following translation: “Reasoning from the Body: Universal Vulnerability and Social Justice.” And we intend to continue translating other articles so that more people from Portuguese-speaking countries can get in touch with the Theory. We also have plans to expand and formalize our group.
By questioning the adequacy of existing background institutions, vulnerability theory provides a valuable tool for advocating improvements in one country. However, during my time at Emory as a German PhD student (University of Freiburg, Germany), I found that this is not the only possible application of the approach. In Prof. Fineman’s Spring 2022 seminar, I experienced every week that vulnerability theory is also an insightful tool to compare different countries. By uncovering basic assumptions and fundamental legal structures, the approach provides valuable comparative objects that can give a better explanation for different outcomes. When an improvement of outcome is desired, comparative vulnerability analysis can also reveal which changes are required on a fundamental level.
Throughout the seminar, in particular three differences in basic assumptions between the U.S. and Germany became apparent to me.
The first was the role of the state and its assumed capacity to act. As we discussed the justification and high responsibility of the state in vulnerability theory, I felt that it was much more “natural” for me than for my American colleagues to understand the capacity that the state has – opposed to other actors – to provide resilience for the citizens. I already knew before the beginning of my studies in the U.S. that the American conception of the state is much more (neo)liberal, but I was still surprised at how deep a fundamental skepticism about the state runs in individuals. Throughout my life (and even during my time abroad in France), I have felt deeply connected to the state – almost naturally embedded. The American students told me that they had never thought of their state that way.
The second aspect concerned civil society. When we discussed in class its role and situation in the U.S., it quickly became clear to me that its role is quite different in Germany. I learned that in the U.S., besides in churches, a decreasing amount of people are involved in civil society and that young people do not belong to any political party. I, on the hand, reported that, at least in my social circle in Germany, almost everyone is active in several clubs. It is also very common, especially for law students, to be a member of, or at least affiliated with, a political party. We also talked about how clubs are highly regulated in Germany. If they are “against criminal law” or against the “idea of international understanding” they are prohibited. I mentioned that in law school I wrote at least two exams in administrative law that dealt with this prohibition. It was irritating to me that in the U.S. “bad civil societies” cannot be prohibited by law.
The third aspect was education. I always knew that free education, including free higher education, is an important value in Germany, but it wasn’t until the vulnerability seminar that I understood how far-reaching it can be to not have it. When we talked about resilience through education, it was baffling to me that college and especially law students were being told that they were a market product, that they needed to sell in the best way possible. I realized that the necessity of getting a good job to pay for the cost of education changes the whole perspective. I felt fortunate that I was able to spend an extended period of time in law school (6 years) and that I had the freedom to slowly find my place in the legal community.
Right now, I am about to finish my final paper comparing the U.S. health care system with the German one from a vulnerability perspective. Here, too, major differences are becoming apparent, the uncovering of which can hopefully provide for improvements.
For the future, I am sure that more comparisons like this are waiting. I am happy and extremely grateful to have learned vulnerability theory during my time at Emory. I cannot wait to continue working with the approach when I am back in Germany.
“Sociologists talk about the role of family law in terms of its promotion of the “institutionalization” of the family. Institutionalization involves the creation of normative expectations, the coordination of behavior, and the regularization of roles associated with family formation, conduct, and dissolution. Carl Schneider (1992) described this institutionalization as accomplished through the “channeling function” of family law. Law’s channeling in the family context is less coercive than it is in, for example, criminal law, but more directive than the reliance on voluntary assumption of obligations found in areas such as contract law.
Two long-term developments currently are reshaping families and transforming family law: greater autonomy for women and growing economic inequality in Western societies. These changes have eroded the formerly near-universal acceptance of marriage as the only appropriate site for childbearing. Growing inequality has created a menu of options in family formation that are importantly shaped by class. Today, marriages tend to occur much later in life, if at all. Some commentators suggest marriage has become a “status symbol,” attainable only by those who have achieved both maturity and financial stability.
Sociologist Andrew Cherlin (2004) has also noted a move away from the social norms that once guided young people into marriage and kept them there. These norms imposed gendered roles that marked entry into adulthood across society (and which also fostered the dependence of wives on wage-earning husbands).
Modern relationships are seen as part of a quest for individual expression and fulfillment rather than societally mandated institutional obligations. Cherlin describes related societal changes, such as the growth in non-marital cohabitation and same-sex unions, as representing the “deinstitutionalization” of American marriage. Such normative “innovations” in coupling have also been viewed as undermining the very institution of family.”
II. The “Deinstitutionalizing” of the Traditional Family
The deinstitutionalization of the family occurred in response to three “revolutions” that took place mid-twentieth century: the gender equality, sexual liberation, and no-fault divorce movements. These forces redefined the relationship between men and women, remade expectations for work and family, and decoupled marriage and reproduction. (Jacob)
During the late sixties and early seventies, states began to lower the age of political majority from twenty-one to eighteen. This culminated in a constitutional amendment that lowered the age of majority on a national level, and eventually a Supreme Court ruling that extended the privileges of adulthood to teens. This change in the legal age had the inadvertent effect of making the newly available birth control pill legal on college campuses without parental approval. Economists Goldin and Katz indicate that the greater availability of the pill correlated with a significant delay in the age of marriage, women staying in school longer, and a dramatic increase in female enrollment in graduate and professional schools. (Goldin and Katz). The legalization of abortion in 1973 saw adoptions, which peaked in 1970, cut in half by 1975 as teen births steadily declined.
These changes had a profound effect on family formation. First, education increased women’s independence – even the mothers of small children could conceivably support themselves. Second, as women directed more energy to market labor, men were expected to contribute more to childrearing. Third, women gained greater control over their own sexuality, as much of the stigma associated with nonmarital sexuality was removed and pregnancy prevention became accessible. The transformation of women’s roles that came with the waning of the industrial economy prompted a revolution in family law. (Jacob)
The divorce law of the industrial era permitted marital dissolution only if one party (and one party alone) was at “fault.” Flouting well-defined marital obligations justified freeing the other spouse from the bonds of what was seen as an already defunct union. If both parties were at fault, however, neither could obtain a divorce. Perhaps in light of the growing independence of women, demand for divorce rose. Spouses colluded and ‘divorce factories’ rose up to help them. (Jacob) It was said that adultery was proved with certainty only where it hadn’t occurred, as where one of the spouses might agree to be photographed with a paid model outside a hotel to “prove” that divorce grounds existed. These practices discredited the process and increased the demand for divorce reform over the course of the twentieth century. When the dam obstructing reform efforts gave way, divorce reform swept the country with every state liberalizing the grounds for divorce between 1969 and 1985. The incidence of divorce grew dramatically, and single parents became a common occurrence.
As the stigma associated with non-marital sexuality declined, so did the legal distinctions between marital and non-marital children. In England, “illegitimate” children were said to be filius nullius, literally, the child of no-one, unable to inherit from their mother or father. In 1972, the United States Supreme Court struck down state laws distinguishing between marital and non-marital children with respect to inheritance. (Levy v. Louisiana) In the same year, it also held unconstitutional the refusal to recognize as a legal parent an unmarried, biological father who had lived with the mother and children. (Stanley v. Illinois) In the years that followed, family law eliminated most of the remaining distinctions between marital and nonmarital children.
Finally, custody law shifted from a model that presumed that children of tender years would be better off with their mothers, to one that assumes that children benefit from the continuing involvement of both parents. This legal shift dismantled the gendered roles of “mother” and “father” and replaced them with a more neutral parenting model.
“3. The Core of the Conception: Universal Human Vulnerability
One fruitful approach that offers a way to transcend the universal/individual dichotomy is the vulnerability theory proposed by legal theorist Martha Fineman.597 This analytical framework takes human vulnerability, which is a necessary product of human embodiment, as a potent touchstone by which to revitalize the state’s relationship to its citizens.598 By placing this idea at the centre of the concept of access to justice, we can generate a normative framework that is both attentive to the particular needs of each individual and also universal in scope.
Fineman describes vulnerability as “universal and constant, inherent in the human condition”599, and as “…the characteristic that positions us in relation to each other as human beings, as well as forming the basis for a claim that the state must be more responsive to that vulnerability.”600 It is “the ever-present possibility of harm, injury, and misfortune from mildly adverse to catastrophically devastating events, whether accidental, intentional, or otherwise.”601 In Fineman’s analysis, vulnerability is a concept that is important “for its potential in describing a universal, inevitable, enduring aspect of the human condition”,602 and one “freed from its limited and negative associations”603 such as “victimhood, deprivation, dependency, or pathology.”604 Fineman’s effort to rehabilitate vulnerability and move it away from negative associations like deprivation resonates with the idea of moving away from the privation of access to justice problems.605 She develops the concept of vulnerability explicitly to “develop a more complex subject around which to build social policy and law; this new complex subject can be used to redefine and expand current ideas about state responsibility toward individuals and institutions.”606
The following is an excerpt from Kathryn Abrams’ chapter, “Three Faces of Privatization” from the 2016 book, Privatization, Vulnerability, and Social Responsibility: A Comparative Perspective edited by Martha Albertson Fineman, Ulrika Andersson, and Titti Mattsson.
‘This chapter will examine three of the many faces of privatization in the American legal and political system. My goal is to highlight the range of initiatives that come within this rubric; but my focus will be different than many accounts attempt. My emphasis will not be on where and how privatization is accomplished (i.e., what is privatized, through what processes, with what kinds of means ultimately being used for the provision of goods or services), though I will advert to these issues in my discussion. Instead, I will interrogate these instances of privatization with regard to three other features that are less often discussed.
First, I will consider the motivations for the shift in the provision of goods or services. Although this typological scheme will inevitably oversimplify, I will highlight three kinds of motivations for privatization. The first, which underlies the classical understanding of privatization, I will call “institutional”: state actors determine that particular services can be better or more cheaply provided by the market, or by some form of public-private partnership. This motivation usually entails a judgment that enabling recipients of a particular service to select from among a range of institutional options will result in greater satisfaction, or improvement of the service through competition, or both. Institutional privatization is often connected with a second motivation, which I will call “fiscal”: budgetary constraints make it necessary or prudent for the state to reduce or withdraw from the provision of certain services, or to outsource them to private (either for-profit or nonprofit) providers who for reasons of expertise, economies of scale, or freedom from certain kinds of regulation, provide them more cheaply. Finally, there is a form of privatization that I will identify as “moral”: in this case state actors decide to reduce or withdraw from the provision of a particular service because they have reached the conclusion that the service is morally problematic, or that it has encouraged in its beneficiaries forms of judgment or behavior that are morally problematic. The goal in these forms of privatization is not simply to withdraw from the provision of the service, but to do so in a way that incentivizes the morally preferred form of choice or behavior, or to support institutions that can provide appropriate forms of moral guidance.
In deploying this range of categories, I depart from the way that some scholars of privatization would use the term. Paul Starr’s classic article on privatization, for example, Excluded from its definition state decisions to defund rather than alter the institutional structure for the provision of goods and services (Starr, 1998). And many scholars of privatization view the term as designating the movement of service provision (or ownership of assets) from the public to the market sector, as opposed to the broader view, often associated with feminism, which emphasizes ‘’outsourcing’’ of particular tasks from the public or market sector to the private family (Cossman, 2005; Fineman, 2004). I see value however in juxtaposing the consumption of “moral privatization’’ to its more familiar “institutional” and “financial” counterparts. While each of these terms or processes reflects a withdrawal of the state from the provision of services, they reflect strikingly different assumptions about the human beings who are their focus, a feature which seems useful to bring interview. Moreover, vulnerability analysis, which asks how societies can best recognize and address the inevitable, pervasive condition of human vulnerability, suggests the importance of examining forms of privatization that place responsibility for dependency on the family or on the individual, as well as on the market.
Second, I will explore the view of the human subjects of privatization that is assumed by the privatizing state. The paradigmatic subject Who is referenced in forms of “institutional “privatization discourse is the autonomous subject in the “Republic of choice’’ (Williams, 1991): The individual or family, exercising the substantially unencumbered choice among vehicles for obtaining a particular good or service that privatization allows. The subject of pure “fiscal” privatization (although privatization, as this inquiry will suggest, is rarely purely fiscal) is a variant of this autonomous chooser: resourceful, self-reliant, and able to respond successfully to a diminution of governmental support. Where privatization is animated by a moralizing impulse, however, assumptions about the subject change markedly. This subject may be characterized as a manipulative chooser, whose opportunistic decisions serve to extract undeserved benefits from the government; or she may be described as a flawed and in capable chooser, who fails fully to apprehend the trajectory of her decisions or is easily swayed by others.
Finally, I will investigate the role of the state in relation to the subject of privatization, as it moves away from direct provision or funding of services. This role, as I will argue, can sometimes be paradoxical. In each of my examples, the state continues to engage with (former) recipients of a particular public good or service; and some of them, the state may remain as present in the lives of recipients as it was before privatization occurred. State involvement may persist when the state’s goal is to facilitate choice among institutional providers: it may retain the power to supervise the conditions of competition, or to establish the metric by which recipients exercise their choice. But state involvement is particularly likely to persist when the state is engaging in “moral” privatization: the state must retain a robust supervisory role in order to incentivize or discipline the behavior of opportunistic choosers, or to guide flawed or uncertain choosers toward morally preferred forms of behavior. That’s the question facing analysts of privatization may be not whether this date should be involved in service provision, but in what kind of role.
I will examine these dimensions of privatization through three examples the first of the field of public education, where students and their families have experienced both “privatization by attrition” and privatization through the explicit governmental creation of a regime of “school choice”. The second is the field of welfare reform, or federal governmental retrenchment in the field of public assistance and imposition of regulatory controls on the provision of assistance by states has resulted in the privatizing of costs of public assistance both onto nonprofit (and religious) providers, and onto individual families, including both mothers and non-custodial fathers. In the third area, reproductive health, the patterns of privatization result both from the gradual withdrawal by the federal judiciary of the legal infrastructure supporting reproductive choice, and from state decisions that reflect a lack of support for reproductive health services.
These examples point to two conclusions, which I elaborate below. First, the rhetorical emphasis on the “choice “a recipients that pervade privatization discourse often becomes a vehicle for shielding the non-neutral assumptions that states decision makers make about, and the varying stances and policies they employed to word, different categories of state beneficiaries. State efforts to withdraw from the provision of services to socially subordinated groups demand particular attention. And second, because privatization, in its varied iterations, may fail to grasp the way that certain needs inhere in the human condition, vulnerability theory may provide a vehicle for questioning both the direction of these efforts and the premises about the human subjects of privatization they reflect.’
The Supreme Court has recently agreed again to hear businesses’ claim that they should be allowed to refuse to serve LGBTQ clients due to their owners’ religious beliefs. Its recent decision to review an appeal on the decision of the Tenth Circuit in 303 Creative LLC v Elenis is a bad sign for the LGBTQ people, their allies, and anyone who cares about civil rights in this country. Is the highest court in the country—now controlled by a conservative supermajority—going to change decades of insisting that businesses will serve everyone? Are we about to go back to darker times of a segregated marketplace?
“Despite the passage of the Americans with Disabilities Act of 1990 (ADA), disabled Americans face substantial barriers to entry into the workplace, lack material supports including health care and transportation, and may not receive reasonable accommodation that best supports their functioning. In addition, individuals with impairments have difficulty qualifying as disabled for disability protections. In light of these problems, some commentators suggest that a civil rights or antidiscrimination approach to disability discrimination – an approach for which activists fought for twenty years prior to the enactment of the ADA – may not adequately address disability discrimination. Some critics advocate a return to the social welfare model that ADA activists struggled to avoid, namely, a model focused on material supports for disabled persons.
I argue that reforming disability law requires a blend of the civil rights and social welfare models as informed by a novel lens: vulnerability as universal and constant. The current antidiscrimination approach to disability law reform is limited because it views disability as a narrow identity category and fragments disability protection. Fragmentation, a new concept I develop in this Article, results when susceptibility to disability discrimination is treated as if it arises in discrete environments, such as the workplace and particular places of public accommodation. Viewing vulnerabilities as situational generates a host of problems: it results in a patchwork of protections that do not coalesce to allow meaningful social participation, fails to appreciate the hyper-vulnerability (extreme sensitivity) of disabled individuals to certain environmental changes, artificially restricts the protected class by creating a false perception that some individuals with significant impairments are not disabled because they are able to function in particular circumstances or environments, and disregards the benefits of conceptualizing vulnerability to impairments as affecting disabled and nondisabled persons alike.
Interpreting Martha Fineman’s theory of vulnerability and applying it for the first time within disability legal studies, I argue that vulnerability to disability and the vulnerabilities disabled individuals experience more acutely than those without disability are both universal and constant. The shared vulnerabilities of disabled and nondisabled individuals suggest the need to restructure completely social institutions to respond to barriers to work and social participation. For practical reasons, I advocate a compromise focused on disabled persons with regard to accommodation for employment and some aspects of social participation: a move away from the standard antidiscrimination approach, which fragments protections, to an approach that treats vulnerability as extending across environments and enables a broader provision of material supports for disabled individuals. In particular, the reasonable accommodation mandate should be expanded with governmental supports to allow disabled workers accommodations both inside and outside the workplace that facilitate their employment. Additionally, a dialogue between employers and employees about accommodating disability should be mandatory, and employees should be entitled to reasonable accommodation that supports their preferred methods of functioning. Given the current legal structures in place, however, recognizing vulnerability to illness as universal suggests the need for universal health care, or treating access to health care as a matter of social welfare rather than disability law.”
Satz, Ani B., Disability, Vulnerability, and the Limits of Antidiscrimination (2008). Washington Law Review, Vol. 83, p. 513, 2008, Available at SSRN: https://ssrn.com/abstract=1331748
“2. Reconceptualizing the employment at-will debate
Instead of continuing to engage in efforts to eliminate the at-will rule, it might be more fruitful to discuss how to reform the American system to provide additional benefits and protections for workers. Such an approach would begin by addressing why it is imperative in the 21st century that employers assume some responsibility for the negative consequences their decisions have not only on their employees, but also on society.
To achieve this type of more balanced or socially equitable end, we do not need to completely rethink the employment relationship. In some respects, we can think of employment as partially a private or individual contractual relationship between employer and employee, recognizing the ability of the respective parties to shape their relationship to their mutual advantage. But recognizing the possibility of individualized negotiation does not mean that the contract aspects of employment relationships should dominate the approach to regulation. Employment is a social relationship that needs to be governed with a view towards social implications, not just private concerns.