North Carolina Law Review
The pathway to stable and secure middle-class status involves two elements: the ability to postpone family formation to facilitate human capital investment and the ability to marshal the emotional and material resources needed to address children needs. Yet, the ability to meet the middle-class threshold for family investment is under assault as the class-based COVID-19 pandemic vulnerabilities and the Supreme Court's decision in Dobbs v. Jackson Women's Health Organization illustrate. While the American Rescue Plan demonstrates the federal government's considerable ability to address children's needs, Dobbs represents the judicial assault on federal power and the ongoing devolution in responsibility for family support from the federal government to the states, a devolution that increases regional, racial, and class-based inequality.
This Article explains the three factors that exacerbate the regional differences. First, we show the development of a new federalism over the past half century that has granted states more authority, undercutting federal ability to establish a floor for available benefits such as health care. Second, we show that increased partisanship and the resulting single party control in many states contributes to the election of more extreme state legislators, with little accountability to voters. Third, we maintain that legislatures have become more responsive to well-funded national business and activist groups and less concerned about local needs.
This analysis turns the conventional justification for federalism--that, particularly in family law, smaller units of government are more in touch with local conditions and needs--on its head. Partisan polarization and the outsized influence of lobbying groups on state legislations suggest that the federal government may be better poised to advance family interests than the states. The nation has a collective interest in the well-being of its children, particularly as the importance of investment in human capital becomes increasingly important in an economy rewarding greater education and technological sophistication. The federal government is also better suited, for a variety of reasons, to coordinate the creation of a new family infrastructure. An era of greater inequality, rather than make smaller units of government more responsive to local conditions, makes them more susceptible to the influence of individuals and entities willing to spend near-unlimited sums of money to produce desired results. We use abortion as the lens of our analyses, rendering visible the intersectional nature of this state-sponsored violence: the misogyny of existing government policies (lack of contraception, coerced pregnancy, no support for resulting families), combined with class (wealthier women pay for their own abortions), race (Black women are more likely to have abortions), and the need for investment in children in the new economy.
Naomi Cahn & June Carbone, Supporting Families in a Post-Dobbs World: Politics and the Winner-Take-All Economy, 101 N.C. L. Rev. 1549 (2023).