Ragoné, H., “Chasing the Blood Tie: Surrogate Mothers, Adoptive Mothers and Fathers,” American Ethnologist 23, no. 2 (1996): 352–365, at 353.CrossRefGoogle Scholar

Id., at 353.Google Scholar

For the distinction between traditional surrogacy and gestational surrogacy, see note 48, infra, and related text. The bad mother moniker may attach to either arrangement.Google Scholar

Gonzales v. Carhart, 550 U.S. 159 (2007)Google Scholar

Miall, C. E., “Community Constructs of Involuntary Childlessness: Sympathy, Stigma, and Social Support,” Canadian Review of Sociology and Anthropology 31, no. 4 (1996): 392–421.CrossRefGoogle Scholar

van den Akker, O. B. A., “Psychosocial Aspects of Surrogate Motherhood,” Human Reproduction Update 13, no. 1 (2007): 53–62, at 56 [hereinafter “Psychological Aspects”].CrossRefGoogle Scholar

See Ragoné, , supra note 1, at 360.Google Scholar

Both practices also challenge the traditional conception of family. See, e.g., Field, M. A., Surrogate Motherhood (Cambridge, Mass: Harvard Univ. Press, 1988): At 33 (arguing that surrogacy raises fears about our understanding of family).Google Scholar

See Ragoné, , supra note 1, at 360.Google Scholar

See “Psychological Aspects,” supra note 6, at 55.Google Scholar

See Muller v. Oregon, 208 U.S. 412, 422 (1908) (referring to the importance of maternal function to the “well-being of the race”).Google Scholar

See, e.g., Muller, 208 U.S. at 421 (describing that her physical structure and a proper discharge of her maternal functions – having in view not merely her own health, but the wellbeing of the race – justify legislation to protect her from the greed, as well as the passion, of man).Google Scholar

Miall, C. E., “The Stigma of Involuntary Childlessness,” Social Problems 33, no. 4 (1986): 268–282, at 270. Infertility is not solely a biological condition; individuals may be socially infertile for a variety of reasons, including lack of affordable access to infertility treatments, or, in the case of single individuals or same sex couples, because they must rely on means other than sexual intercourse with a partner. See Shultz, M. M., “Reproductive Technology and Intent-Based Parenthood: An Opportunity for Gender Neutrality,” Wisconsin Law Review no. 2 (1990): 297–398; van den Akker, O. B. A., “The Acceptable Face of Parenthood: The Relative Status of Biological and Cultural Interpretations of Offspring in Infertility Treatment,” Psychology, Evolution & Gender 3.2 (2001): 137–153, at 138 [hereinafter “Acceptable Face of Parenthood”]; Daar, J., “Accessing Reproductive Technologies: Invisible Barriers, Indelible Harms,” Berkeley Journal of Gender, Law & Justice 23, no. 1 (2008): 18–82, at 24. Regardless of the source, infertility is stigmatized and this stigma shapes social attitudes toward personal identity, family, sexuality, and reproduction. See Miall at 270. See generally Miall, supra note 5 (studying stigma and infertility). Research has correlated the reaction to infertility with grief. See Poote, A. E. van den Akker, O. B. A., “British Women's Attitudes to Surrogacy,” Human Reproduction 24, no. 1 (2009): 139–145.CrossRefGoogle Scholar

See Miall, , supra note 13, at 270; Rossi, A. S. Sitaraman, B., “Abortion in Context: Historical Trends and Future Changes,” Family Planning Perspectives 20, no. 6 (1988): 273–281+381, at 275. Issues of race and class attach to social incentives to reproduce. See generally, Franke, K. M., “Theorizing Yes: An Essay on Feminism, Law, and Desire,” Columbia Law Review 101, no. 1 (2001): 181, 186–195 (defining assumptions regarding reproduction as “repronormativity”).Google Scholar

The social value of mothering may also be deeply impacted by racial politics. See, e.g., Markens, S., Surrogate Motherhood and the Politics of Reproduction (Berkeley: University of California Press, 2007): At 12–13.CrossRefGoogle Scholar

Id., at 11.Google Scholar

Sanger, C., “Separating from Children,” Columbia Law Review 96, no. 2 (1996): 375–517, at 424, 453.CrossRefGoogle Scholar

Siegel, R. B., “The New Politics of Abortion: An Equality Analysis of Woman-Protective Abortion Restrictions,” University of Illinois Law Review 2007, no. 3 (2007): 991–1054, 1029.Google Scholar

See Markens, , supra note 15, at 163–165.Google Scholar

Macklin, R., “Is There Anything Wrong with Surrogate Motherhood,” in Goslin, L., Surrogate Motherhood, Politics and Privacy (Bloomington: Indiana University Press, 1990): At 136; Cahill, C., “Abortion and Disgust,” Harvard Civil Rights-Civil Liberties Law Review 48 (2013): 409–456.Google Scholar

Strickler, J. Danigelis, N. L., “Changing Frameworks in Attitudes toward Abortion,” Sociological Forum 17, no. 2 (2002): 187–201, at 200.CrossRefGoogle Scholar

See Markens, , supra note 15, at 83.Google Scholar

See, e.g., Saravanan, S., “An Ethnomethodological Approach to Examine Exploitation in the Context Of Capacity, Trust and Experience of Commercial Surrogacy in India,” Philosophy, Ethics and Humanities in Medicine 8, no. 1 (August 20, 2013): 10.Google Scholar

Goffman, E., Stigma: Notes on the Management of Spoiled Identity (New York: Simon & Schuster, Inc., 1963): At 3.Google Scholar

Shellenberg, K. M., “Abortion Stigma in the United States: Quantitative and Qualitative Perspectives from Women Seeking an Abortion,” (April 2010), at 11 (unpublished Ph.D. dissertation, Johns Hopkins University) (on file with Milton S. Eisenhower Library, Johns Hopkins University).Google Scholar

Id., at 4–5. Goffman also describes stigma associated with visible physical traits. Id.Google Scholar

Cockrill, K. Nack, A., “I’m Not That Type of Person”: Managing the Stigma of Having an Abortion,” Deviant Behavior 34, no. 12 (2013): 973–990, at 974.Google Scholar

Id., at 974.Google Scholar

See Goffman, , supra note 24, at 128; Cook, R. J. Dickens, B. M., “Reducing Stigma in Reproductive Health,” International Journal of Gynecology & Obstetrics 125, no. 11 (2014): 89–92 at 90.Google Scholar

Link, B. G. Phelan, J. C., “Conceptualizing Stigma,” Annual Review of Sociology 27, no. 1 (2001): 363–385 at 367.CrossRefGoogle Scholar

See Link, Phelan, , supra note 31, at 375.Google Scholar

See Joyce, T. J. et al., The Impact of State Mandatory Counseling and Waiting Period Laws on Abortion: A Literature Review (New York: Guttmacher Institute, 2009): At 11 (citing one survey that showed costs for low-income women increased by 48% when a second visit to the provider was required).Google Scholar

Kimport, K. Cockrill, K. Weitz, T., “Analyzing the Impacts of Abortion Clinic Structures and Processes: A Qualitative Analysis of Women's Negative Experience of Abortion Clinics,” Contraception 85, no. 2 (2012): 204–210, at 207.Google Scholar

Ciccarelli, J. C. Beckman, L. J., “Navigating Rough Waters: An Overview of Psychological Aspects of Surrogacy,” Journal of Social Issues 61, no. 1 (2005): 21–43, at 29.Google Scholar

Id., at 30–31; Laufer-Ukeles, P., “Mothering for Money: Regulating Commercial Intimacy,” Indiana Law Journal 88, no.4 (2013): 1223–1279, at 1234.Google Scholar

See, e.g., Cockrill, Nack, , supra note 27, at 979; Kumar, A. et al., “Conceptualising Abortion Stigma,” Culture, Health and Sexuality 11, no. 6 (2009): 625–639, at 629; Dunn, P. C. Ryan, I. J. O'Brien, K., “College Students’ Acceptance of Adoption and Five Alternative Fertilization Techniques,” Journal of Sex Research 24, no.1 (1988): 282–287; Poote, van den Akker, , supra note 13.Google Scholar

See Shellenberg, , supra note 25, at 39.Google Scholar

See Kumar, et al., supra note 39, at 629.Google Scholar

See Ciccarelli, Beckman, , supra note 35, at 22–23.Google Scholar

See Cockrill, Nack, , supra note 27, at 979; “Psychological Aspects, supra note 6, at 57.Google Scholar

Kumar, et al., supra note 39, at 629.Google Scholar

See, e.g., “Acceptable Face of Parenthood,” supra note 13, at 149.Google Scholar

See, e.g., Ciccarelli, Beckman, , supra note 35, at 23.Google Scholar

See Markens, , supra note 15, at 17–18.Google Scholar

Scott, E., “Surrogacy and the Politics of Commodification,” Law and Contemporary Problems 72, no. 3 (2009): 109–146, at 112, n.14.Google Scholar

Id., at 139.Google Scholar

See Bernstein, G., “Unintended Consequences,” Indiana Health Law Review 10, no. 2 (2013): 291–324, at 311–318.Google Scholar

See “Psychosocial Aspects,” supra note 6, at 55.Google Scholar

See “Acceptable Face of Parenthood,” supra note 13, at 138.Google Scholar

Warnock, M. et al., “Report of the Committee of Inquiry into Human Fertilisation and Embryology” (1984) [hereinafter Warnock Report].Google Scholar

Id., at 45.Google Scholar

Id., at 43.Google Scholar

Id., at 44.Google Scholar

Id., at 46.Google Scholar

Surrogacy Arrangements Act, 1985; Human Fertilization and Embryology Authority Act, 1990.Google Scholar

In re Baby M, 537 A2d 1227 (N.J. 1988).Google Scholar

Id., at 1241–1242.Google Scholar

See Scott, , supra note 48, at 117.Google Scholar

Id., at 135.Google Scholar

See Ciccarelli, Beckman, , supra note 35; Poote and van den Akker, supra note 13, at 140; “Psychosocial Aspects,” supra note 6, at 58.Google Scholar

Hansen, M., “As Surrogacy Becomes More Popular, Legal Problems Proliferate,” ABA Journal - Law News Now, March 2011, available at <http://www.abajournal.com/magazine/article/as_surrogacy_becomes_more_popular_legal_problems_proliferate/> (last visited March 25, 2015). By contrast, surrogacy is highly regulated in most other industrial nations. See Markens, supra note 17, at 23.+(last+visited+March+25,+2015).+By+contrast,+surrogacy+is+highly+regulated+in+most+other+industrial+nations.+See+Markens,+supra+note+17,+at+23.>Google Scholar

See Poote, van den Akker, , supra note 13, at 140–144.Google Scholar

See Ciccarelli, Beckman, , supra note 35, at 29.Google Scholar

See “Psychosocial Aspects,” supra note 6, at 57. Some commentators argue that a surrogate's contentment with her decision is no more than an “ironic self-deception” because it may be reinforcing oppressive gender roles. See Radin, M. J., “Market-Inalienability,” Harvard Law Review 100, no. 8 (1987): 1849–1937, at 1930.Google Scholar

van den Akker, O. B. A., “Psychological Trait and State Characteristics, Social Support and Attitudes to the Surrogate Pregnancy and Baby,” Human Reproduction 22, no. 8 (2007): 2287–2295, at 2293–2294 [hereinafter Psychological Trait].Google Scholar

See Ciccarelli, Beckman, , supra note 35, at 33.Google Scholar

See “Psychosocial Aspects,” supra note 6, 53–62; Poote, van den Akker, , supra note 13, at 140.Google Scholar

Sullivan, J. F., “Bishops File Brief Against Surrogate Motherhood,” New York Times, July 19, 1987, at 28.Google Scholar

See Ragoné, , supra note 1, at 354.Google Scholar

See “Psychosocial Aspects,” supra note 6, at 56.Google Scholar

See Ragoné, , supra note 1, at 356.Google Scholar

Id. Testimony of altruistic motives helped sway a 1989 California state legislative committee to authorize noncommercial surrogacy.Google Scholar

See “Psychosocial Aspects,” supra note 6, at 56.Google Scholar

“Baby Mama” is one example of a highly popular film that depicted the commercial surrogate as unemployed, uneducated, and scheming.Google Scholar

See Scott, , supra note 48, at 140.Google Scholar

The use of surrogacy is increasing, particularly among same-sex couples. Hartocollis, A., “And Surrogacy Makes 3,” New York Times, February 19, 2014, available at <http://www.nytimes.com/2014/02/20/fashion/In-New-York-Some-Couples-Push-for-Legalization-of-Compensated-Surrogacy.html?hp> (last visited March 25, 2015).+(last+visited+March+25,+2015).>Google Scholar

Certainly some scholars argue that maternal identity is established through pregnancy, not through the genetic link. Research on adoption suggests maternal identity can be formed through nurturance. See, generally, Katz Rothman, B., Recreating Motherhood: Ideology and Technology in a Patriarchal Society (New York: WW Norton & Co., 1990).Google Scholar

See, e.g., In re C.K.G., 173 S.W.3d 714, 729 (2005), Belsito v. Clark, 644 N.E.2d 760, 763 (1994).Google Scholar

Kandel, R. F., “Which Came First: The Mother or the Egg? A Kinship Solution to Gestational Surrogacy,” Rutgers Law Review 47, no. 1 (1994): 165–239, at 188.Google Scholar

Jones, R. K. Finer, L. B. Singh, S., Characteristics of U.S Abortion Patients, 2008 (New York: Guttmacher Institute, 2010): At 12.Google Scholar

Norris, A. et al., “Abortion Stigma: A Reconceptualization of Constituents, Causes, and Consequences,” Women's Health Issues 21, Supp. (2011): S49–S54, at S51.Google Scholar

See, e.g., Major, B. et al., “Abortion and Mental Health: Evaluating the Evidence,” American Psychologist 64, no. 9 (2009): 863–890, at 867; Littman, L. L. et al., “Introducing Abortion Patients to a Culture of Support: A Pilot Study,” Archives of Women's Mental Health 12, no. 6 (2009): 419–431, at 421; Major, B. Gramzow, R. H., “Abortion as Stigma: Cognitive and Emotional Implications of Concealment,” Journal of Personality and Social Psychology 77, no. 4 (1999): 735–745, at 735.CrossRefGoogle Scholar

See Cockrill, Nack, , supra note 27, at 973.Google Scholar

Bourne, R. W., “Abortion In 1938 and Today: Plus Ça Change, Plus C’est La Même Chose,” Southern California Review of Law & Women's Studies 12, no. 2 (2003): 229–275, at 247.Google Scholar

Mohr, J. C., Abortion in America: The Origins and Evolution of National Policy, 1800–1900 (New York: Oxford University Press, 1978): At 241–244.Google Scholar

Id., at 104–108.Google Scholar

Id., at 108.Google Scholar

See Norris, et al., supra note 86, at S52.Google Scholar

See Smith, T. W. Son, J., “Trends in Public Attitudes towards Abortion” (2013), NORC Final Report.Google Scholar

Id., at 6, 7.Google Scholar

Id., at 2, 6. Abortion is approved where there is a serious health risk (87%), rape (78.3%), or serious fetal abnormality (77.1%). Id., at 2. Inability to afford a child (40.6%), married, wants no more children (43.2%), any reason (41.7%). Id., at 2, 6–7.Google Scholar

505 U.S. 833 (1992).Google Scholar

See Smith, Son, , supra note 95, at 7; Jelen, T. G. Wilcox, C., “Causes and Consequences of Public Attitudes toward Abortion: A Review and Research Agenda,” Political Research Quarterly 56, no. 4 (2003): 489–500, at 491.Google Scholar

See Bourne, , supra note 89, at 229, 273.Google Scholar

See Kumar, et al., supra note 39, at 629.Google Scholar

See Shellenberg, , supra note 25, at 16.Google Scholar

See id., at 19, 183, 194–199; Major, et al., supra note 87, at 885 (noting that abortion is often hallmarked by ambivalence); Jones, Finer, Singh, , supra note 85, at 11 (discussing health insurance coverage and payment for abortion services); Littman, et al., supra note 87, at 421–422 (discussing common types of abortion misinformation).Google Scholar

See Shellenberg, , supra note 25, at 183–184, 192–193. See Major, B. et al., APA Task Force on Mental Health and Abortion Report of the APA Task Force on Mental Health and Abortion 90 (2008) (noting that at least one study showed that a majority of women experienced no regret upon deciding to abort for fetal abnormality, and that generally, the evidence supports the assertion that the mental health risks are no greater among adult women who experience unplanned pregnancies who decide to abort than those who decide to deliver that pregnancy).Google Scholar

See Shellenberg, , supra note 25, at 192.Google Scholar

See Littman, et al., supra note 87, at 428.Google Scholar

See Shellenberg, , supra note 25, at 183.Google Scholar

Kimport, K., “(Mis)understanding Abortion Regret,” Symbolic Interaction 35, no. 2 (2012): 105–122, at 111.CrossRefGoogle Scholar

See Norris, et al., supra note 86, at S50. Stigma need not be attached to a visible trait. Goffman, , supra note 24, at 48–51.Google Scholar

Id. See Kumar, et al., supra note 39, at 632 (noting that stigma and the associated status loss “is most often articulated at the community and social network levels”).Google Scholar

Cockrill, K. et al., “The Stigma of Having an Abortion: Development of a Scale and Characteristics of Women Experiencing Abortion Stigma,” Perspectives on Sexual and Reproductive Health 45, no. 2 (2013): 79–88, at 80.CrossRefGoogle Scholar

See Shellenberg, , supra note 25, at 200.Google Scholar

See Cockrill, Nack, , supra note 27, at 975.Google Scholar

See Major, et al., supra note 87, at 867.Google Scholar

See Major, Gramzow, , supra note 87, at 741–742. Other factors include the extent to which a woman wanted and felt committed to her pregnancy, perceived self-efficacy for coping with the abortion, low actual or anticipated social support for the abortion decision, and use of avoidance and denial coping strategies. Id.Google Scholar

See Major, et al., supra note 87, at 867.Google Scholar

See Kumar, et al., supra note 39, at 629; see Norris, et al., supra note 86, at S50 (noting that stigma may be episodic for some abortion patients who experience the reemergence of their stigma when prompted).Google Scholar

See Kimport, , supra note 109, at 107.Google Scholar

See Kumar, et al., supra note 39, at 634.Google Scholar

Id., at 629.Google Scholar

See Kimport, , supra note 109, at 128.Google Scholar

Abrams, P., “The Tradition of Reproduction,” Arizona Law Review 37, no. 2 (1995) 453–470, at 463–470.Google Scholar

Consideration of the stigma experienced by the Intended Mother (IM) is beyond the scope of this paper but a few points are worth noting. The stigma that attaches to the practice of surrogacy is likely a common experience for both the surrogate and the IM. An IM may also have to confront stigma associated with infertility. On the other hand, IMs may benefit from greater social support than surrogates. See “Psychological Trait, supra note 69, at 2293.Google Scholar

See, e.g., Manian, M., “Irrational Women: Informed Consent and Abortion Regret,” in Thomas, T. A. Jean Boisseau, T., eds., in Feminist Legal History: Essays on Women and Law (New York: New York University Press, 2011): At 118.Google Scholar

In re Baby M, 537 A.2d 1227, 1248 (N.J. 1988).Google Scholar

See, e.g., Johnson v. Calvert, 851 P.2d 776, 785 (1993), applying an intent-based test, “The argument that a woman cannot knowingly and intelligently agree to gestate and deliver a baby for intending parents carries overtones of the reasoning that…prevented women from obtaining equal economic rights and professional status under the law.” But see, Belisto v. Clark, 644 N.E.2d 760, 766 (1994), refusing to apply Johnson. See also In re Marriage of Moschetta, 30 Cal.Rptr.2d 893 (1994), refusing to apply Johnson to a traditional surrogacy dispute.Google Scholar

See, e.g., Miss. Code Ann. § 41-41-33 (West 1996); 18 Pa. Cons. Stat. Ann. § 3205 (West 1989); Wis. Stat. Ann. § 253.10(3)(a)–(c) (West 2011).Google Scholar

Casey, 505 U.S. at 882Google Scholar

Id., at 885.Google Scholar

Gonzales v. Carhart, 550 U.S. 124, 159 (2007).Google Scholar

Andrews, L., “Surrogate Motherhood: The Challenge for Feminists,” in Gostin, L., ed., Surrogate Motherhood: Politics and Privacy (Bloomington and Indianapolis: Indiana University Press, 1990): At 167, 171.Google Scholar

Id., at 172.Google Scholar

See, e.g., A. H.W. v. G.H.B, 772 A .2d 948 (2000) (mandating 72 hour period after birth for gestational surrogate to decide whether to surrender the baby), R.R. v. M.H., 426 Mass. 501 (1998)(holding traditional surrogacy agreement unenforceable because it did not allow the surrogate four days after birth to change her mind). See also, 168-B:25 N.H. Rev. Stat. Ann.(2008), requiring minimum 72 hour period after birth for surrogate to reconsider her agreement. See, e.g., Gonzales v. Carhart, 550 U.S. 124, 159–60 (2007) (“It is self-evident that a mother who comes to regret her choice to abort must struggle with grief more anguished and sorrow more profound when she learns, only after the event, what she once did not know: That she allowed a doctor to pierce the skull and vacuum the fast-developing brain of her unborn child, a child assuming the human form.”)Google Scholar

Brief for Amicus Curiae Am. Psychological Ass’n in Support of Appellees at 14, Webster v. Reprod. Health Servs., 492 U.S. 490 (1989) (No. 88–605), 1989 WL 1127695 at *14. See also Greenhouse, L., “How the Supreme Court Talks about Abortion: The Implications of a Shifting Discourse,” Suffolk University Law Review 42, no. 1 (2008): 41–59, 47–48. The Carhart majority opinion thus adopts the discredited theory of a “postabortion syndrome” that inflicts lasting emotional damage on women who have had abortions. Although embraced by such organizations as Feminists for Life of America, where Jane Sullivan Roberts, the wife of Chief Justice Roberts, once served as executive vice president of the board of directors and currently as pro bono legal counsel, the theory has been widely debunked in the medical literature. Id., at 56 (citing Kinorski, K.-A., “The Aftermath of Abortion,” American Feminist 5, no. 1 (1998): 6–7).Google Scholar

Carhart, 550 U.S. at 159.Google Scholar

Task, S. D. Force to Study Abortion, Report of the South Dakota Task Force to Study Abortion (2005): At 56 [hereinafter Task Force Report].Google Scholar

Id., at 65.Google Scholar

Doe v. Attorney General, 487 N.W.2d 484, 487 (1992). See, also, Andrews, supra note 134, at 171.Google Scholar

Burris, S., “Disease Stigma in U.S. Public Health Law,” Journal of Law, Medicine & Ethics 30, no. 2 (2002): 179–190, at 184.Google Scholar

See, e.g., Brown v. Bd. of Educ. of Topeka, 347 U.S. 483 (1954) (racial discrimination); Bd. of Regents of State Coll. v. Roth, 408 U.S. 564 (1972) (employment); Parents Involved in Cmty. Sch. v. Seattle Sch. Dist. No. 1, 551 U.S. 701 (2007); Addington v. Texas, 441 U.S. 418 (1979) (involuntary commitment); Codd v. Velger, 429 U.S. 624 (1977) (employment).Google Scholar

See, e.g., Bd. of Regents of State Coll., 408 U.S. at 573 (discussing potential due process issues). See, e.g., id. at 573–575; Rivera v. Minnich, 483 U.S. 574 (1987); Addington, 441 U.S. at 426; Beard v. Stahr, 370 U.S. 41, 42–45 (1962) (Douglas, J., dissenting).Google Scholar

See, e.g., Rivera v. Minnich, 483 U.S. 574, 585 (1987) (Brennan, J., dissenting); Lawrence v. Texas, 539 U.S. 558, 575 (2003).Google Scholar

Lawrence, 539 U.S. at 575–576.Google Scholar

Id., at 575 See id., at 571 (“The issue is whether the majority may use the power of the State to enforce these views on the whole society through operation of the criminal law.”); see also id., at 586–605 (Scalia, J., dissenting).Google Scholar

United States v. Windsor, 133 S.Ct. 2675 (2013).Google Scholar

Windsor, 133 S.Ct. at 2693.Google Scholar

Id., at 2694.Google Scholar

Id., at 2695–2696.Google Scholar

Carhart, 550 U.S. at 159.Google Scholar

Id., at 158 (“Congress could…conclude…the Act…implicates… ethical and moral concerns that justify a special prohibition.”) But see, Casey, 505 U.S. at 850 (“Our obligation is to define the liberty of all, not to mandate our own moral code.”)Google Scholar

347 U.S. 483 (1954).Google Scholar

Brown, 347 U.S. at 494 (1954). See also Lenhardt, R. A., “Understanding the Mark: Race, Stigma, and Equality in Context,” New York University Law Review 79, no. 3 (2004): 803–931 (arguing that racial stigma, not intentional discrimination, is the source of racial injury).Google Scholar

Addington v. Texas, 441 U.S. 418, 426 (1979); see also Patterson v. New York, 432 U.S. 197, 226 (1977) (Powell, J., dissenting); Beard v. Stahr, 370 U.S. 41, 42–45 (1962) (Douglas, J., dissenting).Google Scholar

See City of Richmond v. J.A. Croson Co., 488 U.S. 469, 491 (1989) (“Classifications based on race carry a danger of stigmatic harm.”); City of Richmond v. J.A. Croson Co., 488 U.S. 469, 516 (1989) (Stevens, J., concurring) (“There is a special irony in the stereotypical thinking that prompts legislation of this kind. Although it stigmatizes the disadvantaged class with the unproven charge of past racial discrimination, it actually imposes a greater stigma on its supposed beneficiaries.”); Grutter v. Bollinger, 539 U.S. 306, 349–378 (2003) (Thomas, J., concurring in part, dissenting in part); Parents Involved in Cmty. Sch. v. Seattle Sch. Dist. No. 1, 551 U.S. 701, 748–782 (2007) (Thomas, J., concurring).Google Scholar

United States v. Virginia, 518 U.S. 515, 533 (1996); see also Frontiero v. Richardson 411 U.S. 677 (1973).Google Scholar

538 U.S. 721 (2003).Google Scholar

Id., at 736.Google Scholar

Casey, 505 U.S. at 852Google Scholar

See Cook, Dickens, , supra note 30, at 91. See also, Lawrence v. Texas, discussed, supra note 146.Google Scholar

See, e.g., Dep’t of Labor, Health and Human Services, and Education, and related Agencies Appropriations Act, 1994, Pub.L. No. 103–112, (107 Stat. 1082) [hereinafter Hyde Amendment)].Google Scholar

See Smith, Son, , supra note 95, at 6–7.Google Scholar

Stigma evidence thus bears particularly on application of Planned Parenthood of Southeastern Pennsylvania v. Casey, which requires inquiry into both the purpose and burden of a law regulating abortion. Planned Parenthood Southeast v. Strange, 2014 WL 1320158 (2014), is the first case to require consideration of stigma in assessing the burden imposed by restrictions on abortion. The Court has yet to consider whether the constitutional protection accorded the decision whether to bear or beget a child extends to noncoital conception such as surrogacy or other forms of ART. See Robertson, J. A., Children of Choice: Freedom and the New Reproductive Technologies (New Jersey: Princeton University Press, 1994): At 22–42.Google Scholar

Nussbaum, M., Hiding from Humanity: Disgust, Shame, and the Law (Princeton: Princeton University Press, 2004): At 232.Google Scholar