A major challenge for us at this Plenary Session, as expressed by Pierpaolo Donati in his presentation in last spring’s preparatory webinar, is “to understand why, in what sense, and with what practical consequences ‘the family’ is a common good that should be at the heart of all men and women of good will”. He posed this basic question: “What qualifies a family as a common good?” His exploration of that question precedes from a basic assumption, though, that I must challenge.
Donati supposes that there is basic consensus that the family is a common good. The problem that he poses for us is how to gain a clearer understanding of, or consensus on, what sort of a common good the family is. He says that “the majority of the population shares the attachment to something which is felt as a primary support in everyday life, as a source of deep feelings, as a ‘private’ space, whatever its form”. This majority understands the family as a common good of an aggregative type, “which, as a general concept, consists of the sum of the well-being of the individuals belonging to a group or collectivity”. But he argues the family should be seen as a common good of a relational type, “which consist in sharing the relationships from which derive both individual and community goods”. I am very grateful for his entire body of work in developing this richer understanding of the true value and worth of the family, and agree that exploring this richer understanding of the family is crucial for supporting families in our changing world.
But what I would challenge is that there is a general consensus that the family is a common good – at least in my country, the United States, at this point in time. (And after listening to the presentations from last spring’s webinar, I believe the observations that I share today from the American perspective will have application to much of the rest of the world). I am not challenging the truth that family is and remains at the top of what people value and treasure. However, American women, in particular,[1] have increasingly come to accept the notion that their love for their families is a private affair, a “hobby”, if you will. It’s a hobby that is tolerated only in so far as it does not interfere with the efficient operation of our workplaces, or place too many demands on social services provided by the State. It’s a hobby that you are perfectly free to continue to indulge in if you can afford to – if you can afford to pay others to do a good portion of the work of caring that having a family entails, and if you are willing to accept that this delegated work is an adequate substitute for the element of loving that you would incorporate into that work if you did it yourself. American women do not see any evidence that the family is considered to be a common good even of an aggregative type, let alone as a relational good.
I will argue that this notion of the family as a private hobby rather than a common good is not something that sits comfortably with women. Nor is it something that has evolved naturally out of the evolution of the nature of the family. Nor is it something that serves women – or men, or children, or families – well. Instead, it is a conviction that arises out of the lived experiences of women over the past decades. It is also a conviction that is inextricably intertwined with two significant cultural forces: 1) the evolution of American feminism and its enshrining of the availability of abortion as the single most important factor in achieving equality for women, and 2) the evolution of disability rights theory and its enshrining of autonomy as the single most important factor in achieving equality for people with disabilities. To empower women (and policy makers) to appreciate the families as a relational good, I think that we have to find a way to overcome those cultural forces that have become deeply embedded in the way women have come to think about the work of caregiving.
Accepting the notion of a family as a private hobby denigrates the work of loving and caring that are part of the particular vocation of women, regardless of whether women pursue this work at the same time they pursue paid work outside of the family as well, and regardless of whether women have family obligations or not. While individual circumstances vary, of course, decades of experience with women pursuing paid jobs demonstrates that most women do choose to embrace their vocation of caregivers, and obstacles to being able to adequately perform caregiving work in conjunction with paid work outside the family is a source of stress and of unhappiness.[2] The Church has long recognized that the “true advancement of women requires that labor should be structured in such a way that women do not have to pay for their advancement by abandoning what is specific to them and at the expense of the family”.[3] Recent studies support what is intuitively obvious – when asked about their preferences as to how to split household tasks, women prefer having more responsibility for childcare tasks than men, and men share the preference that women have that responsibility.[4] In order to preserve and support the vocation of women in families, it is imperative that we empower women to understand this work as not a hobby, but as a vital contribution to the common good.
My argument will proceed in three steps. First, I will explore briefly what the concept of “common good” means for the average American layperson today. It is a concept with much currency, and with a lot of appeal to the popular imagination. But it is different from what we are probably meaning when we talk about the concept amongst ourselves at this Plenary. It is important to get some sense of what most people probably understand the term to mean for two reasons: first, to put the rest of my arguments into their current context; and, second, because I will argue that it might be possible to use that false understanding as a stepping stone toward developing a more fruitful and true understanding of the family as a relational good.
Second, I will describe the lived experiences of women with families today, demonstrating why their current situation belies any illusion that society values families as a ‘common good’. In this description, I will focus on how the past two years of the pandemic have exposed this situation to an alarming degree. In the words of Emily Marin of the National Women’s Law Center: “COVID set off a bomb in the middle of these jerry-rigged ways of getting by in this country that individual families have created”.[5] The glare from that bomb blast has dramatically illuminated the gaps in the social structures that support caregivers of all kinds, who are predominantly women.
Third, I will argue that the notion of the family as a private hobby, rather than a common good, is a consequence of the conscious strategic decisions made by two groups of activists who grounded their quest for civil rights on notions of autonomy: American feminists fighting for the equality of women, and disability rights advocates fighting for equality for people with disabilities. There is a lot at stake in both of these group’s campaigns. The animating principles underlying both of these fights are appealing on their surface, because they are legitimate responses to histories of real oppression. This helps explain why they have gained such a hold on the minds of many women, regardless of how much the notion of the family that results from these principles might conflict with the natural intuitions of women as caregivers.
I will conclude by returning briefly to the contemporary popular notion of “common good”, exploring how we might be able to capture the appeal and currency of that understanding to counter the idea of the family as a private hobby, perhaps laying the groundwork, for a richer understanding of the family as a relational good.
A. Contemporary Popular Understanding of “Common Good”
The term “common good” is becoming increasingly trendy in American discourse, but its meaning bears only the most superficial relation to the Church’s understanding, as “the sum total of social conditions which allow people, either as groups or as individuals, to reach their fulfillment more fully and more easily”.[6] The popular understanding consistently fails to incorporate the full set of elements recognized by the Church, including respect for the person, the need for it to foster human and social development, and the peace and stability that is a precondition to development.[7] As further developed by Donati and others, this multi-faceted understanding of the common good is coming to be understood as necessarily including a component that is a ‘relational good’, consisting not of material things or ideas or services, but instead of social relations. Donati writes: “. . . the concept of [relational good] arises from the observation that there are social spheres in which private subjects pursue interests that are not strictly their own, either directly or indirectly, but are shared with others and are motivated not by profit, but by the need for a common good”.[8] It is, of course, this rich, complex understanding of the common good that we at this Plenary Session are attempting to apply to our understanding of the family.
In contrast, the concept of “common good” is increasingly used by a wide variety of American institutions to signal a commitment to something; what that something might be is not always clear, but it is certainly not imbued with the complexity and richness of the Church’s evolving conception of the common good.
For example, I teach at the University of St. Thomas, a Catholic university in Minneapolis, Minnesota, founded in 1885, and named for St. Thomas Aquinas. About 5 or 6 years ago, after years of debate and consultation, the University adopted a new motto that now appears on all of our promotional materials, websites, and at the top of the letterhead in our stationary: “All for the Common Good”. (It’s even a registered trademark – it always appears with the little ™ symbol). In materials prepared by our Office for Mission, this slogan is described as “The Charism of the University of St. Thomas”. But it is not defined anywhere. The effects of this charism are described, as follows: “The University of St. Thomas community owns and lives out this charism. It is embedded in the Mission Statement, Vision Statement and Statement of Convictions that guide our work and life together. It is integrated into academic pursuits and student activities. It compels us to be a community of engaged service to change our world and with it, ourselves. We welcome those committed to searching for knowledge and to living all for the common good”. The closest to anything concrete in that quote is probably the sentence that says “It compels us to be a community of engaged service to change our world and with it, ourselves”. That tells us something about how ‘common good’ is understood – as engaged service to change the world. And if we look at the work of the University’s Center for the Common Good, we see that this sort of engaged service is the sole focus of its work. The Center “promotes collaborative curricular, co-curricular, and research initiatives that address civic and community challenges. We encourage and support students, staff, and faculty to be transformational partners who work tirelessly for social justice in our local, national, and global communities”. The Center’s work consists of connecting students with community partners for volunteering opportunities, connecting faculty and students with community based “service-learning” opportunities, and connecting “the community with informed and collaborative solution-based initiatives addressing social and environmental challenges”.
Common Good is also the name adopted in 2002 by “a nonpartisan reform coalition” aimed at fixing what it perceives as a broken US government.[9] Its platform consists of three parts:
- Liberating American Initiative
- Rebuilding Democracy
- Applying Moral Values to Public Choices.
What were the founders of this initiative trying to convey by choosing the term “common good” to attract adherents? What did they (or their marketing consultants) think this term meant to the public? When you look carefully at the specifics of their platform, the first two parts are essentially translatable into smaller government, decreased regulation and bureaucracy, and more power for local organizations. But it’s the last plank in their platform that seems to speak to the choice of name:
Principle 7: Restore the Moral Basis of Public Choices. Public trust is essential to a healthy culture. This requires officials to adhere to basic moral values – especially truthfulness, the golden rule and stewardship for the future. All laws, programs and rights must be justified for the common good. Every public dollar involves a moral choice. No one should have rights superior to anyone else.
Let’s look at one more example: a nonprofit founded in 2007 called The Common Good.[10] Here’s how they describe themselves:
The Common Good is a non-profit, non-partisan membership organization that consists of professionals with an interest in public policy and politics. Debate and the free flow of ideas is fundamental to our democracy, and TCG encourages civil dialogue and good government and presents the highest caliber thought leaders, innovators, and trendsetters in politics, business, and culture for candid discussions on the pressing issues of the day.
This organization had its origins in the entertainment industry, when a group of executives, writers, directors, producers, actors, and agents got together in 1988 to involve those affiliated with the entertainment industry into political affairs and public policy. Their initiative was, according to them, “credited with playing a critical role in creating the Hollywood/Washington nexus of entertainment activism”. In its current form the group hosts forums for thought leaders across the political spectrum, creates strategic alliances with other organizations and bestows annual “American Spirit Awards” on those who “make a difference in public affairs and civic life”. They award scholarships to college students who have worked for “a cause you care about and believe is fundamental to societal progress” or “have made an impact in your local community and/or wider national community”.
So, what do all three of these uses of the term “common good” have in common? First, they have all deliberately chosen this term to market themselves to an audience they want to attract: students (the University of St. Thomas), citizens who share beliefs in a smaller government (Common Good), or citizens who share a set of generally progressive values (The Common Good). Second, they all portray their commitment to the concept of the “common good” as a call to activism. The direction or political leaning of that activism is varied, indicating that the concept is understood as an all-purpose term whose significance lies not in any particular end to be achieved. Instead, it conveys a process: like-minded people working together to affect some sort of social reform.[11]
This more popular understanding of the common good clearly has little in common with what we are all talking about at this Plenary. But it does probably have more resonance with the general public than ours, and it offers some context for the task to which I now turn: describing the lived reality of women caregivers in the United States today, and exploring how we got to that reality.
B. How the COVID Pandemic Has Revealed the Inadequacy of Support for Caregivers in the United States
The World Economic Forum publishes an annual “Global Gender Gap Report”, analyzing gender gaps in countries around the world in various dimensions, including economic participation and opportunity. Their report for March 2021 documented the significant impact of the pandemic on women’s participation in the workforce, showing 5% of all employed women lost their jobs, compared with 3.9% of employed men.[12] It analyzed in detail the effects on productivity at jobs as a result of the childcare responsibilities assumed disproportionately by women upon the closures of schools and childcare facilities.[13] While this report documents that the impact is a world-wide phenomenon, I will focus on the situation in the United States. The situation I will describe goes beyond childcare, extending to women with caregiving responsibilities for family members who are disabled or the elderly.
1. Childcare
Let us begin with childcare. “The position of women in the workplace in the United States, relative to the rest of the world, presents a curious paradox. On the one hand, we have some of the world’s most favorable laws and a relatively hospitable social climate for full and equal access to the workforce by women. On the other hand, though, we have some of the world’s least favorable laws and a relatively inhospitable social climate for full and equal access to the workforce by women with children”.[14]
The United States is one of only eight countries in the entire world that offers no federal paid childcare leave. (The other seven are Papua New Guinea, Suriname and five island nations in the Pacific: Micronesia, the Marshall Islands, Nauru, Palau and Tonga).[15] The Family and Medical Leave Act requires public employers and private employers with more than fifty workers to offer twelve weeks of unpaid leave to new mothers, and nine states guarantee some paid leave.[16] But it is important to understand that, in contrast to many other countries, this paid leave comes through the employment market. It is an obligation imposed on employers, and is a form of support only available to the employed.
The United States is also “an outlier in its low levels of financial support for young children’s care. . . . The US spends 0.2% of its GDP on childcare for children 2 and under – which amounts to about $200 a year for most families. The other wealthy countries in the Organization for Economic Cooperation and Development spend an average of 0.7% of GDP on toddlers, mainly through heavily subsidized childcare. Denmark, for example, spends $23,140 annually per child on care for children 2 and under”.[17] Most of the money that the US spends on childcare includes the money provided by the federal government to the individual states to provide childcare financial assistance for low-income families to allow the families to work or attend school; the eligibility requirements are determined by each state. The federal government also funds some state-run programs for low-income families that help prepare children from birth to age 5 for school.[18] In addition, some families with low to moderate incomes may qualify for some tax credits to help pay for childcare. (President Biden’s America Rescue Plan of 2021 provided a one-year increase in the tax credit for children and extended it to all, regardless of income, but that was a one-year bonus that has now expired).
So, think about that. The sum total of social support you are guaranteed by law for raising a child in the United States is the ability to take unpaid maternity leave for six weeks, and a possible tax credit. Now, of course, market forces pressure some employers into offering more than mandated by law, including paid childcare leave, but those benefits are typically most often available to the most highly skilled, highly paid, and already privileged workers. With respect to the cost of childcare, unless you are low-income, you are basically on your own.
In effect, the United States relies almost entirely on the employment market as the predominant support for caregiving work. A robust body of work by a school of American feminist scholars over the past decades has decried this strategy for supporting caregiving, arguing (without much success) for a social re-evaluation of the work of caregiving.[19] One of these scholars, Joan Williams, demonstrates how employment in the US is structured to accommodate the “ideal worker” – namely, the person with no obligations for caring for other people, with the ability to devote themself fully and totally to the demands of their jobs.[20] As long as this “ideal worker” continues to drive the workplace, women with caregiving responsibilities will suffer.
The pandemic-related economic collapse has vividly demonstrated the inadequacy of this model for caregiving support.[21] “In contrast to typical recessions, women’s employment has been negatively impacted significantly more than men’s. Women have lost a net of 4.5 million jobs since February 2020; in April 2021, the Bureau of Labor Statistics reported women’s labor force participation rate of 57.2%, the lowest since 1988. The pace of recovery of women’s jobs is proving to be slower than that of men’s jobs. Since there is no precedent for such a mass exodus of women from the workforce, predictions of the course of recovery are difficult, but the long-term economic impact of women’s career pauses for childcare pre-pandemic does not augur well for women. The economic impact is not limited to wages lost during the period of unemployment; such job gaps also result in difficulty being rehired, lower future income growth, and reduced retirement benefits.
Some of the explanation for the disproportionate impact of the pandemic on women’s employment is attributable to the fact that women are more likely to be employed in job sectors such as travel and hospitality, which were most directly affected by pandemic-related shut-downs, and are less likely to be amenable to telecommuting. An even more significant explanation, however, clearly lies in the disproportionate caregiving demands on women. The coronavirus shutdowns have closed schools and daycare centers around the country, keeping kids at home and making it even harder for parents (especially mothers who tend to provide the majority of childcare) to keep working. For the lowest paid women, the closure of the biggest source of free public childcare – schools – has been devastating. The dangers of COVID-19 eliminated many of the other most common sources of free or low-cost childcare – help from neighbors or grandparents or other family members”.
2. Care for Disabled (and Elderly) Family Members
The history of the evolution of disability rights in the United States over the past decades is a truly inspiring tale of liberation for people with disabilities: liberation from horrific lives confined in abusive, segregated institutions, to robust legal protections guaranteeing the right to live in desegregated community settings, not to be discriminated against in employment, and easy access to all public buildings and services, including the right to a free appropriate public education in our schools. One of the most powerful statements of that evolution was the Supreme Court’s 1999 decision, Olmstead v. LC,[22] which held that it was illegal discrimination for a state to keep people with disabilities in institutional settings if they had been judged competent to live in community settings. Public entities must administer all of their services, programs, and activities in the most integrated setting appropriate to the needs of these people – a setting that “enables individuals with disabilities to interact with non-disabled persons to the fullest extent possible”. This was a very important case in disability rights. It is a really strong weapon in the arsenal of legal rights for people with disabilities, an important step in the gradual desegregation of a group of people who 100 years ago would have been locked up in institutions. But what it does is tell states that they cannot institutionalize people unless it is necessary; it does not provide, or do anything to actually create, the alternative, community-based settings to which these liberated people can move.
How do people with disabilities find these alternative living situations? Besides a place to live, people with disabilities often need support for what are commonly called the “activities of daily living”. These could range from bathing, dressing, and feeding oneself, to doing household chores, handling money, transportation, or shopping. In other words, they need caregiving. And some people with disabilities need that kind of caregiving for their entire lives, not just until they are 18 years old and move away from home. To get that help, they have to either be able to pay for it, or get support from the Medicaid program, or find a friend or family member to provide it for free.
Paying for it yourself requires an income. Even before the pandemic, fewer than one in 3 working-age people with disabilities had jobs, and the poverty rate for working-aged people with disabilities was nearly two and a half times higher than that for people without disabilities.[23] People with disabilities experienced a markedly larger decline in jobs at the beginning of the pandemic than people without, and are experiencing a slower bounce back to employment.[24] If you have a disability and you can prove you don’t have assets of over $2000, you can qualify for social security assistance, currently $794/month. That doesn’t pay a lot of rent, or buy a lot of personal care services.
So most people with disabilities rely on support from the federal Medicaid program, which is administered through the states. These programs have evolved over the past decades from merely paying for people to live in nursing homes or other institutional settings, to allowing people with disabilities to choose to receive the help they need in their own homes, from whomever they choose. Unfortunately, not every state allocates enough money in their budgets to be able to afford for everyone with disabilities to get the help they would choose. In fact, most states have notoriously long waiting lists for people who have technically qualified for such help to actually get it.[25]
And even if a person with a disability gets off of a waiting list, they have to find (1) a place to live, and (2) people willing to do the personal assistance work that you need to get by in the activities of daily living. Although Medicaid lets a person with disabilities choose their personal, they control the wages that can be paid for this work. The Medicaid reimbursement rates for this work are notoriously low, and these jobs typically come without employment benefits. The lack of qualified careworkers has been acknowledged as a crisis for decades, and the crisis has gotten dramatically more serious through the upheavals of the Covid Pandemic.[26] The “Great Resignation” has led to stiff competition for workers in all sectors, and while the free market has begun to respond by significantly raising wages, the Medicaid restrictions on wages that can be paid for care work – and the budget constraints in the various states with the long waiting lists for services – persist.
So, where do people with disabilities end up finding the housing and the support they need? Who are the people willing to house them, and willing to do the care work needed to afford people with disabilities some level of independence for free or for the most minimal pay? Of course, it is their families. Most people with cognitive disabilities live with their families – and not just for the first 18 or 21 years of their lives. A nationwide survey in 2001 showed that about 60% of all persons with intellectual disabilities live with family caregivers.[27]
And living at home is a proxy for having your family provide most – or all – of the support you need for your activities of daily living. A 2020 study trying to get a handle on the situation with the long waiting lists for the Medicaid support surveyed people on the waiting lists, and this is what they found:
When asked how individuals manage their needs while waiting for services, interviewees most frequently cited support provided by family caregivers. Many caregivers are unpaid, although some may be paid in waivers that allow for self-direction of services.[28]
I have described above the increased caregiving responsibilities on parents as schools went online during the pandemic. Another thing that happened during the pandemic was the closure of facilities where many people with intellectual disabilities spend their days – often in therapeutic and supported work programs.[29] When these facilities shut down, too, families had to find ways to provide care during the day – often at the expense of their own jobs. And while the initial closures were related to the physical danger of COVID-19, some have been closed permanently, or are now operating at diminished capacity, because of severe staffing shortages.[30]
Many people with intellectual disabilities who used to go to work every day have lost their jobs; according to the National Council on Disability, by the end of April 2020, nearly 1 million people with disabilities lost their jobs; that’s about 20% of working people with disabilities, compared to the 14% people without disabilities who lost their jobs. Many working people with developmental disabilities rely on the direct support of professionals and job coaches. The disability service agencies that support employment and hire these support people have had increasing difficulty finding staff and have been subject to budget cuts causing closures and cut-backs on services. Where do those people go during the day if they can no longer work? The families who care for them must find ways to keep them busy and sane, or at least safe. And some families have had to assume care and housing responsibilities for adults with disabilities whose group homes have had to close, due to the same staffing shortages. These families have had to scramble to find living arrangements for their loved ones.
Care for the elderly who cannot live by themselves follows the same general outlines as care for the disabled. More of the elderly population will have a history of employment that affords them the savings to pay for very good housing situations and good care. But those who are not so fortunate must depend on the housing and care offered by their families, or rely on the Medicaid system, which is bedeviled by much of the same economic and bureaucratic constraints as described above for the disabled, and is suffering the same severe staffing crisis. During the earliest days of the COVID pandemic, the papers were full of accounts of families scrambling to try to protect their loved ones when nursing homes became incubators for COVID-19 infections.[31]
Most of the caregiving responsibilities for disabled or elderly family members is assumed by women. This sort of caregiving is even more unrecognized and unsupported by the government or employers than care for children. The FMLA does extend its guarantee of 12 weeks of unpaid leave a year to employees who have to take care of an immediate family member (spouse, child, or parent) with a serious health condition, but that is not going to cover a lifetime of care for a disabled adult family member, or an elderly parent who needs long-term intensive care. Again, even that meager support is only available through the labor market, to women who hold the relatively privileged jobs to whom the FMLA.
In some states, family members are eligible to be paid as caregivers under the Medicaid program. But that option is not available to all, and even when it is available, the pay is suppressed by the restrictions of Medicaid regulations and state budget constraints.[32] In the words of one woman who accepts pay of $15 hour for 40 hours a week of work to care full-time for a loved one paralyzed from the neck down by an accident: “I make a choice to be his caregiver every day. It’s out of love. I have the ability to do it. I see caregiving as helping him maintain a quality of life that is worth living, that is accessible and happy for him”.[33]
So this is the lived reality of women in the United States with significant family caregiving responsibilities. If you have employment, you might be lucky enough to have a job that guarantees twelve weeks of unpaid leave without losing your job. If you are really lucky, you may have an employer that choses to offer some paid leave. If you do not have a job, you get nothing, unless you are low-income, in which case you may get some federal support to pay for childcare while you look for work or go to school. If your caregiving responsibilities extend beyond caring for your children during their childhood, you are left pretty much on your own.
During the pandemic, when the fragile supports that women managed to cobble together to enable them to fulfill their caregiving responsibilities collapsed, they were confronted with the reality that they were basically on their own in pursing their private “hobby” of caregiving. Their hobby was tolerated only in so far as it did not interfere with the efficient operation of their workplaces, or place too many demands on social services provided by the State. But the hobby was not given any meaningful social support. How did we get into this situation? Let us now turn to that question.
C. Role of Feminist and Disability Rights Theory in Propagating Idea of Family as Private Hobby
1. Feminist Theory[34]
Legal scholar Julie Suk published an article in the Columbia Law Review in 2010 called “Are Gender Stereotypes Bad for Women? Rethinking Anti-discrimination Law and Work-Family Conflict”.[35] She contrasted the US’s pathetically feeble family leave with that of countries like France and Sweden, which guarantee months of paid maternity and paternity leave, with robust job protections. Suk analyzed the different commitments of feminist theory that led to the generosity of France and Sweden, but continue to make it impossible for laws mandating any paid maternity leave to get anywhere in the United States, despite decades of efforts.
Suk explained that, in Europe, the issue of maternity leave was historically considered entirely separately from the issue of general sick leave or disability leave. In those countries, legal schemes evolved that considered childbirth to be something unique – not a disability or an illness – and an endeavor in which the women who were primarily affected by it deserved the support of the entire social network. Maternity (or paternity) benefits are not the responsibility of the employer – they are the responsibility of the state – provided in recognition of the social value of care work.
In contrast, in the United States, the issue of maternity leave has always been inseparably intertwined with employment law. Suk pointed out that the trajectory of the American approach was shaped primarily by feminists[36] in the 1960s and 1970s who argued for equality based on sameness; they worried that distinguishing between childbirth and any other medical condition, by requiring employers to offer maternity benefits, would perpetuate negative stereotypes about women’s ability to work, resulting in discrimination against women. Suk argued that family leave should be disaggregated from medical leave. And she also argued that “gender stereotypes are not necessarily bad for women”. She wrote, “The American stereotyping approach attempts to give women the same chance as men to prove their mettle, but fails miserably by ignoring the gendered barriers to their ability to do so”.
A careful look at that last quote reveals, I think, precisely why the American approach is so problematic with respect to the notion of the family as a relational good. Suk explains that the American approach “attempts to give women the same chance as men to prove their mettle”. If women can become like men, they have an equal chance to succeed. And the single most important protection for women’s equality by most feminists in the United States has come to be seen as abortion, which is woman’s ultimate tool for becoming just like men. It has come to be seen as a non-negotiable feature of the social and legal support that women need to succeed in the workplace, to achieve equality and autonomy, to escape poverty. This development has allowed abortion to become embedded into the institutional structure of employment in this country, which is, as discussed above, the only source of support for caregiving for women.
The supremacy of the right to abortion for mainstream American feminism is on vivid display currently in the Supreme Court’s deliberation over the case of Dobbs v. Jackson Women’s Health Organization.[37] This case challenges a law passed in Mississippi that prohibits nearly all abortions after 15 weeks’ gestational age. It is generally thought to offer the Supreme Court the opportunity to overturn holdings in Roe v. Wade,[38] which held that the US Constitution’s right to privacy included a woman’s right to obtain an abortion, and in Planned Parenthood v. Casey,[39] which affirmed Roe based on “the premise that women had ‘reliance interests’ in the judicially-created right to abortion that ensured their capacity ‘to participate equally in the economic and social life of the nation’”.[40]
The right to abortion – to escape from the responsibility of caregiving – has been prioritized over the right to care for children (or the elderly or people with disabilities) without suffering severe economic penalty. The fight for the right of women to become more like ideal male workers, has been prioritized over the fight to restructure the workplace to accommodate caregiving, or to institute social supports for caregivers outside of the structures of the workplace.
One would think that the extraordinary collapse of the female employment market during the COVID pandemic would be the occasion for serious examination of the existing edifice. Instead, the response has been a set of piecemeal, unimaginative patches to this creaky structure.[41] The cataclysmic collapse of female employment because of the lack of support for caregiving has not moved policy-makers to embrace more radical restructuring of the labor market that might make work more compatible with caregiving responsibilities. There has been no concrete movement toward recognition of a social responsibility to care for the caregiver in the broader contexts in which caregiving is crucial to our society – not just for our children, but also for the elderly and disabled.
In a recent essay, Joan Williams argued that the recent pandemic has exposed many of the here-to-for hidden pressures of childraising that have up until now been the predominant burden of mothers. She wrote: “Before COVID, many parents quietly skulked off to attend the school play or coach a soccer game, workers nursed their babies in cars parked outside factories, and adult children slid away unobtrusively to take elders to the doctor. Now there’s a lot less of a taboo because you can’t hide it”.[42] She notes that, to her astonishment:
With most of us working from home these days, Americans’ workday has increased by 40% – roughly 3 hours a day – the largest increase in the world. Yes, I fact-checked that. I couldn’t believe it either. The problem with all this busyness and productivity is that it comes at a huge price. Many employees are now doing the work of three or more people. They’re doing their own jobs, their childcare worker’s jobs, and their children’s teacher’s jobs. Yet, many employers seem oblivious. I hear reports of companies cheerfully assuring their employees, and themselves, that everyone is working at, or close to, 100%. Why don’t more managers see the problem here?[43]
Her response: “It’s because there’s still a widespread reverence for the ‘ideal worker’”.[44]
How are women reacting to what they are seeing and experiencing during these past two years? For one thing, according to The Brookings Institute, they have stopped having babies. “The data show a baby bust of 60,000 missing births between October 2020 and February 2021, roughly corresponding to conceptions that would have occurred between January and May 2020”.[45] As the wave of Covid infections dropped in the summer of 2020, the baby bust receded, but it is not unrealistic to assume that the bust will reappear when we have data on conceptions during the ensuing months, when Covid infections rose again. In other words, many women are protecting themselves by retaining the flexibility to mold themselves into the ideal workers that our workplace structures demand. They are choosing the same result that access to abortion gives them, because it is the only rational option realistically available to them, faced with the institutional structures of our workplace that simply will not bend, will not yield to the demands of caregiving, and faced with the lack of any social support for caregiving outside of the workplace.
I believe that, unfortunately, what Joan Williams has identified as the “widespread reverence for the ‘ideal worker’” is not just held by employers, but also has come to be accepted by many women. I also believe that some of “reverence” is, in fact, facilitated and enabled by the enshrining abortion – a highly efficient mechanism for ensuring a constant supply of ‘ideal workers’ – as the primary value in the quest of equality for women. Taking their lead from the leaders of the feminist movement, women have essentially been encouraged to rely on abortion as a ‘release valve’ for society’s devaluation of the work of caring for others. As long as abortion maintains its status as the single most important factor in ensuring women’s equality: 1) women who would prefer other options are made to feel as though they are not committed to the ideal of equality for women; 2) feminist activists have little incentive to fight for structural changes that might offer other options. As a result, women who choose to become parents and devote time to caregiving are left with the reality that this choice is a private one that they can indulge in if they want, but not to expect any social support for making that choice. Having a child is like taking up sailing – perfectly fine to do, if you can afford it, but not something that deserves social support.
2. Disability Rights Theory[46]
Like the situation of working women described above, the position of people with disabilities in the United States presents a paradox. On the one hand, we have some of the world’s most favorable laws and a relatively hospitable social climate for full and equal access of people with disabilities to all aspects of society, including the workforce. On the other hand, though, these laws are largely aimed at benefitting those people with disabilities who can live relatively autonomously, and can essentially succeed in the workforce on equal terms with those who do not have those capabilities. Because of the disability rights community’s almost exclusive focus on enshrining autonomy as the ultimate value for which all should strive, people with disabilities who are truly dependent on caregivers, and their caregivers, are increasingly being left behind with no or inadequate social supports.
The decades of the 1970s and 1980s saw the emergence in the United States of the disability rights movement, in which people with disabilities modeled their struggles for freedom and equal treatment on the civil rights movements of the 1960s that saw the successful assertion of freedom and equality by racial minorities and women. Central to the ideology of the disability rights movement was the rejection of the “medical model” of disability in favor of a “social construction model” of disability. The medical model of disability assumes that a disability is a “deficient or flawed human condition, a bodily deviation due to a ‘loss’ of capacity in one way or another, which holds a person back from participation in society. Hence, disability represents an inability, abnormality, or disadvantage calling for management and correction in order to restore proper functioning”.[47] Axiomatic to this model is that it is the nondisabled who must do this management and correction, and that the management and correction is aimed at making those with disabilities more like the nondisabled. Disability rights advocates argued that this model deprives the disabled of their own voice – that is, the nondisabled determine what is best for the disabled based on their own views of “the normal” and impose those views on the disabled. This complaint is captured in the slogan: “Nothing About Us Without Us”.[48]
The disability rights movement advocated an alternative model that views the disability as a social construct. Under the social construction model, a disability is more a function of the physical and social standards established by society as normal than a function of some defect in the body of the individual with the disability. It is society that disables a person who uses a wheelchair by constructing buildings with stairs, rather than elevators or ramps – not the paralysis of her legs. Under this model,
[g]enuine healing is more than a matter of an individual’s bodily adjustment to fit society’s definition of normalcy. It is instead a matter of society adjusting to the presence of diverse people with a range of impairments. And with this we enter the arena of civil rights and social justice.[49]
Although the ideology of the disability rights movement described above has, indeed, been a powerful force for significant improvements in the civil rights and justice accorded people with disabilities, it is not immune from criticism. For one thing, it ignores the reality of physical conditions responsible for some physical and cognitive disabilities that are not the product of social construction. More significantly, though, it is based on a concept of human nature in which self-representation and the freedom to shape one’s own identity are the paramount values. As Dutch philosopher Hans Reinders argues,
Underlying the [social construction model] is an anthropological claim about the nature of our being. As human beings, we are free to construe the nature of our own being in the act of self-identification. This freedom is shaped, and thus constrained, by numerous cultural, political, and economic contingencies, but as ontological freedom it is certain. Human beings are the kinds of beings who have their existence as a task, not a preordained destination. This anthropological claim reinforces the appearance of people with profound intellectual disability as problematic.[50]
Furthermore, this model “espouses an ethics of political activism” from which the severely intellectually disabled are also excluded.
[T]he suggestion that acts of will are essential in overcoming ‘disability’ is indebted to a model of political rationality that presupposes a liberal notion of autonomy. . . . It suggests that ‘emancipation from repression relies on the intellectual and emotional resources of the individual’. In this respect, it clearly does not represent people with intellectual disabilities, let alone people with profound intellectual disabilities.[51]
The focus on the values of autonomy and independence as the ultimate values to be served by disability law is evident in the most fundamental American disability law, the Americans with Disabilities Act (“ADA”).[52] The ADA has three main parts. First, it requires the removal of architectural barriers, and prohibits discriminatory eligibility criteria, that would prevent anyone with a disability from accessing any public accommodations.[53] This is likely what people think of as the ‘core’ of the ADA. It has led to the widespread adoption of ‘universal design’ principles that have been revolutionary in opening access to public places to people with physical disabilities. This most visible aspect of the ADA illustrates vividly the animating vision of the bulk of the advocates who pushed for its enactment – mostly college-educated students with physical disabilities. These brave and committed activists truly changed the world for the better for ALL people with any kind of disabilities – that is indisputable. But the law itself is clearly focused predominantly on helping those with disabilities who are realistically capable of achieving a productive, independent life do precisely that.
The second prong of the ADA prohibits discrimination against qualified individuals with disabilities in employment.[54] It requires employers to make reasonable accommodations for people with disabilities to allow them to use their abilities to perform jobs for which are otherwise qualified. This is a powerful and wonderful piece of civil rights legislation, but it has very limited application to the life of people with significant intellectual disabilities, because they are not likely to be able to meet the threshold standard of being “otherwise qualified” to hold most jobs. As interpreted, the ADA does not recognize as reasonable accommodations the sorts of support that many people with intellectual disabilities might need to hold a job, such as long term job coaching,[55] or permitting teams of people with cognitive disabilities to performing the same tasks normally performed by one person.[56]
Third, the ADA prohibits excluding a qualified person with a disability from participation in the services, programs, or activities of any public entity.[57] This is the provision relied on by the Supreme Court in the landmark Olmstead v. LC case discussed above. But, as noted above, all the decision does is tell states that they can’t institutionalize people unless it’s necessary; it doesn’t provide, or do anything to actually create the alternative settings to which people with disabilities can move. As also described above, this has resulted in people with disabilities who are not capable of autonomous living having to rely on their families for caregiving. But because this sort of living is not compatible with the ideal of autonomy espoused by disability rights activists, they do not push for changes to laws or social structures that might support this kind of living. Indeed, for the most part, they actively oppose it.
There are two disability law reform initiatives that dramatically illustrate the continued hold of the autonomy ideal in disability rights activism, at the expense of those whose lives witness a very different vision of human dignity. One has to do with jobs, the other with housing.
a. Restricting employment options that do not conform to the ideal of autonomy. Over the past decades, there has been a push to close what are called “sheltered workshops”, that is settings where people with disabilities work together in some sort of a closed setting, doing work typically contracted for by companies, sometimes at less than minimum wage. There are two aspects to the “shelter” in that name. One is physical: these people are spending their days in segregated settings, apart from nondisabled people for the most part. The other is a figurative shelter – an exemption that lets employers be certified to pay less than legal minimum wages for people whose “earning or productive capacity is impaired by age, physical or mental deficiency, or injury”.[58] Both of these types of shelter are subject to pressure. There is constant pressure by the disability rights community to change the law to eliminate the exemption entirely.
I fully support a critical and careful look at situations where employees are playing less than minimum wage to any person with a disability who is capable of doing work at the same level as those without disabilities. And I fully support efforts to identify people who might be isolated in segregated work environments, but are capable of working in more integrated settings, and to support them in finding such settings. But not everyone with a disability is capable of that kind of work, or is safe or comfortable in the hullaballoo of the world of commerce. And the pressure to recognize only one kind of work as legitimate, noble, and enhancing of dignity, is having the effect of eliminating work arrangements centered around a different vision of work – a vision of work as the ongoing participation in the God’s creation, as having both an objective and subjective dimension, as something with an intrinsic social dimension, as well.[59]
In 2014, the minimum wage exemption was amended to add a requirement that no one under the age of 25 could receive a subminimum wage unless their state’s Vocational Rehabilitation office (“VR”) certified that they were ineligible or unsuccessful at achieving “competitive, integrated employment”.[60] The de facto result of this regulatory change has been the creation of two classes of people with disabilities in the employment market – those capable of, and those not capable of, competitive integrated employment. Those who fail at competitive integrated employment are increasingly being left with no options, as settings with the slightest resemblance to a sheltered work environments are closed, by state mandates or by regulatory obstacles and funding issues. In 2021, the Department of Education issued updated guidance on the criterion for an integrated employment location in this definition.[61] It eliminated from that definition any employment setting that was formed for the specific purpose of employing individuals with disabilities. It also eliminated group employment settings, such as janitorial and landscaping crews, unless the employer could prove that this crew was not put together for the purpose of employing people with disabilities. The guidance does say that a person with disabilities has the right to choose not to seek “competitive integrated employment”. However, no state funding can used to support that person. Instead, “the VR agency must refer the individual with a disability to other community resources that may be able to assist the individual”.[62]
Realistically, there are no such other community resources. So in fact, the family caregivers who are responsible for the daily care of a significantly disabled person who is not capable of competitive integrated employment are increasingly being left on their own, without any social support, to find suitable work for their loved ones. In other words, the full resources of social support for employment for people with disabilities are only available to people with disabilities who fit the dominant narrative of the disability rights community – people for whom barriers to employment are social attitudes, rather than real limitations in functioning in the workplace; people for whom autonomy is an appropriate state of life.
b. Restricting housing options. The deinstitutionalization of people with disabilities has been the single most important move in the history of disability rights. But, as mentioned above, it’s not enough to close the big institutions, you also have to find places for the released people to live. That mostly happens through the Medicaid waivers described above. The regulations governing these waivers over the last few years have been undergoing a move very similar to the work regulations discussed above. This has played out in the definition of what qualifies as a “home and community-based” setting (“HCB”) that is eligible for waiver funding. In 2014, when the Department of Health and Human Services (“HHS”) adopted new regulations defining what qualifies as an HCB, it was subject to a lot of pressure to place strict numerical limits on the number of people with disabilities who could live in a such a setting – to no more than 4 people with disabilities. It resisted that pressure, instead establishing a set of minimum qualities for an HCB setting.[63] However, the individual states that administer the Medicaid waivers are allowed to set a higher threshold for HCB settings than required by the regulation, and have the option of establishing size and occupancy limitations, and many states are doing so. And the pressure for national regulations to impose a 4-person limit on HCBs continues.[64]
What is the practical consequence of this pressure? I serve on the Board of L’Arche USA, the American wing of the international movement founded by Jean Vanier, which establishes “homes and workplaces where people with and without intellectual disabilities live and work together as peers, create inclusive communities of faith and friendship, and transform society through relationships that cross social boundaries”. Many of these communities are finding it harder and harder to maintain these sorts of vibrant group housing environments, in the face of these regulatory pressures that can make these homes economically unfeasible.
This move is also contrary to what other, nondisabled people are increasingly seeking out in their own living situations. The hottest trends in housing is the development of multi-generational housing supporting large family structures, shared housing, co-housing or co-living and cooperative housing. All of these movements recognize the value of mutual dependency, and stronger networks of common life. The isolation of the pandemic has given us all a greater appreciation for the value of these sorts of networks. How ironic that those who are most dependent should be being denied opportunities to live in the sorts of settings those without disabilities are seeking out.
The elimination of social support for people with disabilities who are choosing or seeking family-like housing arrangements is driven by the disability rights advocate’s single-minded focus on autonomy as the ultimate value for people with disability. The ideal of living an independent, autonomous life has been prioritized over the need to support living arrangements that work for people with disabilities who are not capable of living autonomous lives. Social supports are directed more and more to the arrangements that serve people capable of autonomous living, leaving fewer options and supports for those who are not capable.
These two examples illustrate the practical consequences of the power of the autonomy ideal of disability rights to shape policies affecting the lives of people with disabilities and their caregivers. The caregivers who have responsibilities for those who are not capable of autonomous life, who are seeking work arrangements or housing situations that provide the caregiving support needed for their loved ones, are given less and less support in that search. Just like the women whose quest for alternatives to abortion calls into question their commitment to equality for women, parents or caregivers who question the wisdom of closing all sheltered work arrangements or congregate living arrangements are suspected of lack of commitment to the equality and potential of people with disability. As Tom Reynolds, a theologian and the parent of a son with intellectual disabilities, explains,
There is a two-sided charge that obligates parents of children with disabilities. . . . First, there is a responsibility to affirm, nurture, and empower the unique person, helping to foster his or her own peculiar way of being. Second, there is a responsibility to encourage independence and capacity to live productively with others in society. However, these two charges often run against one another.[65]
Just like the feminist activists whose commitment to abortion diminishes their incentive to fight for structural changes to support caregiving, disability rights activists’ commitment to autonomy diminishes their incentive to fight for support for the caregiving required for people with disabilities who are not capable of autonomous living. As a result, women who have caregiving responsibilities for people with significant disabilities live with the reality that this, too, is a private matter for which they should not expect social support. Although it is still the case that caregiving responsibility for people with significant disabilities is mostly not a choice, since many disabilities appear or develop after a child is born, the increase of the ability to prenatally diagnose many disabilities renders the assumption of such caregiving responsibility more and more vulnerable to be seen as a mother’s “choice”, even further diminishing the sense of social responsibility for the consequences.
D. Suggestions for Shifting the Conversation to a Healthier Understanding of the Family as a Common Good
It is, I hope, clear from the foregoing why I am skeptical that about being able to persuade American women caregivers (or policy makers) that they should shift their understanding of the family as a ‘common good’ of an aggregative type to a relational common good. I do not believe they perceive the family as a common good of any type, not even the shallow type of common good that I describe as predominating in American popular discourse. The lived experience of the total lack of support for caregiving that has been magnified by the COVID Pandemic is powerful evidence that caring for and maintaining families is not considered to be an endeavor contributing to any identifiable social goal about which there is enough consensus to justify social support. It is a hobby, a private matter, the cost for which women must shoulder on their own.
This reality reinforces the powerful rhetoric that women have come to believe about their family caregiving work. Feminists have succeeded in convincing women (and policy makers) that women’s equality depends on their ability to renounce caregiving responsibilities; advocating for social support of childrearing amounts to a renunciation of commitment to equality for women. Disability activists have succeeded in convincing women with caregiving responsibilities for significantly disabled family members (and policy makers) that respect for the rights of their disabled loved ones depends on an absolute commitment to enabling that loved one to live an autonomous life; advocating for support for a life of a significantly disabled loved one who cannot live autonomously amounts to a renunciation of commitment to equality for people with disabilities.
What is to be done? Might it perhaps be possible to try to introduce the concept that families should be considered a common good – any kind of common good – by using the general, popular notion of ‘common good’, to at least counter some of the powerful rhetoric described above? Recall that this general, popular understanding of ‘common good’ is code for a call to activism of some type – the direction of that activism seems to be irrelevant. It might be possible to characterize campaigns to introduce legislative or policy changes that are truly supportive of the work of caregiving as being in service of the common good in that way. Neither feminists nor disability activists, nor women who are influenced by the rhetoric of these movements, should be alienated by a campaign to work together for the common good of providing more support for the exceptionally vulnerable populations of children and severely disabled people. The use of this sort of rhetoric to characterize a campaign for structural reforms might be more palatable than more directly attacking the centrality of notions like equality and autonomy in support of such reforms.
At the same time, hearing the notion of “common good” in connection of such campaigns might acclimatize women to accepting their caregiving work as something that has more value than a private hobby, indeed, as something more like a “common good” in the sense that the Church has historically used the term. Indeed, intuitively, it seems to me that hearing this phrase in such a context (even if it is understood in its most shallow sense) will convey to women that caregiving work does have a broader social value, that, in fact, it does foster personal development, social well-being, and development of society (in other words, understanding “common good” in a more Catholic way). It might also pave the way for appreciating the value of caregiving work as fundamentally relational, rather than merely material or economic – leading to a more rich appreciation of the family as a relational good. In the words of Pierpaolo Donati, this might help give women the mental framework to reclaim their intuitive appreciation of the family as a common good from “a completely different configuration from what today is understood as the common good, which is generally understood as the sum of individual goods acquired through individual opportunities: the common good would instead be the relation of reciprocity from which individual goods derive”.[66]
[1] Although the arguments in this paper might apply equally to men, because of the reality that the caregiving on which I will focus is done predominantly by women, I will focus on women; I leave it to others to explore their application to men.
[2] Elizabeth R. Schiltz, Motherhood and the Mission: What Catholic Law Schools Could Learn from Harvard about Women, 56 Catholic University Law Review 405, pp. 372-373 and sources cited therein.
[3] John Paul II, Encyclical Letter Laborem Exercens ¶ 19 (1981). See also John Paul II, Apostolic Exhortation Familiaris Consortio ¶ 23 (1981); John Paul II, Encyclical Letter Evangelium Vitae, ¶ 90 (1995).
[4] Bleske-Rechek, A., & Gunseor, M.M. (2021, January 14). Gendered Perspectives on Sharing the Load: Men’s and Women’s Attitudes Toward Family Roles and Household and Childcare Tasks. Evolutionary Behavioral Sciences. Advance online publication. http://dx.doi.org/10.1037/ebs0000257.
[5] Eliana Dockterman, Women are Deciding Not to Have Babies Because of the Pandemic. That’s Bad for All of Us, Time (Oct. 15, 2020), https://time.com/5892749/covid-19-baby-bust/
[6] Second Vatican Ecumenical Council, Gaudium et spes, 26 (1966).
[7] Catechism of the Catholic Church (2nd ed.). Washington, DC: [distributed by United States Catholic Conference ¶¶ 1907-1908 (2000).
[8] Pierpaolo Donati, Discovering the Relational Goods: Their Nature, Genesis and Effects, 29 International Review of Sociology 238, 241(2019).
[9] Common Good. About Us. Available at: https://www.commongood.org/our-people
[10] The Common Good. What We Do. Available at: https://www.thecommongoodus.org/what-we-do
[11] This understanding of the common good seems to have much in common with the conception of a relational good described by Donati as being held by Uhlaner, which: “arises from the connection of individuals in a social context and is characterized by their desire to belong to a significant social group (or network) from which they derive some gratification. Their mutual relatedness has the character of an expressive attractiveness for them, beyond the strict instrumental utility”. Donati, supra n. 8, at 243.
[12] World Economic Forum, Global Gender Gap Report 2021, 6 (2021). A 2020 report by McKinsey Global Institute concluded, based on data from India and the United States, that “female job loss rates due to CoVID-19 are about 1.8 times higher than male job loss rates globally, at 5.7 percent versus 3.1 percent respectively”. Industry-mix and labor-market specifics were found to explain just ¼ of that gender gap; another important factor is the increased burden of unpaid care”. Anyu Madgavkar et al. McKinsey Global Institute. “COVID-19 and Gender Equality: Countering the Regressive Effects”. July 15, 2020.
[13] World Economic Forum, supra, at 52- 56.
[14] Schiltz, supra note 2, at 410.
[15] World Policy Center. “Is Paid Leave Available to Mothers and Fathers of Infants?”. 2022. available at: https://www.worldpolicycenter.org/policies/is-paid-leave-available-to-mothers-and-fathers-of-infants/is-paid-leave-available-for-mothers-of-infants
[16] Those states are California, Colorado, Connecticut, Massachusetts, New Jersey, New York, Oregon, Rhode Island, and Washington. The District of Columbia also provides for paid family leave. Investopedia. “Paid family and Medical Leave (PFML) by State”. (Jan. 21, 2022), available at: https://www.investopedia.com/paid-family-and-medical-leave-by-state-5089907
[17] Claire Cain Miller, “How Other Nations Pay for Child Care. The U.S. Is an Outlier”. The New York Times (Oct. 6, 2021), available at: https://www.nytimes.com/2021/10/06/upshot/child-care-biden.html?cam
[18] See: https://childcare.gov/consumer-education/get-help-paying-for-child-care
[19] Some of the major works of these scholars include: Joan Williams, Unbending Gender: Why Family and Work Conflict And What To Do About It (2000); Eva Feder Kittay, Love’s Labor (1999); Robin L. West, Caring for Justice (1997); Joan C. Tronto, Moral Boundaries: A Political Argument for an Ethic of Care (1993). I have explored this work, and the ways in which much of this emerging feminist theory is compatible with the writings of the Catholic Church on the roles of women and family, in many of the articles cited in the footnotes of this paper.
[20] William’s classic book on this theme is Unbending Gender: Why Family and Work Conflict and What to Do About It, Id.
[21] The following description of the effect of the pandemic on working mothers is taken from Elizabeth R. Schiltz, Caregiving, COVID-19, and the Failed Promise of Abortion, 11 Journal of Christian Legal Thought 25, 27-29 (2021) (footnotes omitted).
[22] Olmstead v. L.C., 527 U.S. 581, 597 (1999).
[23] Lisa Schur et al., COVID-19 and Employment Losses for Workers with Disabilities:
An Intersectional Approach, at: https://papers.ssrn.com/sol3/papers.cfm?abstract_id=3788319 (Feb. 16, 2021).
[24] Elizabeth Schiltz, The Dangers of Being Disabled in the Time of Covid, 38 University of St. Thomas Law Journal (forthcoming 2022).
[25] A study published in 2019 listed these sorts of waiting lists in various states: Minnesota, 237; Indiana, 1,404; Michigan, 3,223; Illinois, 19,354; Ohio, 68,644; Florida: 71,016; Texas: 281,381. MaryBeth Musumeci, Priya Chidambaram, and Molly O'Malley Watts, Key Questions About Medicaid Home and Community-Based Services Waiver Waiting Lists (2019), available at: https://www.kff.org/report-section/key-questions-about-medicaid-home-and-community-based-services-waiver-waiting-lists-appendix-tables/
[26] Schiltz, supra n. 24.
[27] (13% live in their own homes, 15% with a spouse, and 13% in formal supervised out-of-home residential settings). Braddock, D., Felce, D., Emerson, E., & Stancliffe, R.J. (2001). The living circumstances of children and adults with mental retardation or developmental disabilities in the United States, Canada, England and Wales, and Australia. Mental Retardation and Developmental Disabilities Research Reviews at 1. (19% in a supervised residential setting, and 16% alone or with a roommate). See: https://stateofthestates.org/create-idd-chart/state-profiles/
[28] Medicaid and CHIP Payment and Access Commission, Issue Brief, State Management of Home- and Community-Based Services Waiver Waiting Lists (August 2020) at 9, available at: https://www.macpac.gov/publication/state-management-of-home-and-community-based-services-waiver-waiting-lists/
[29] https://www.disabilityscoop.com/2021/09/10/disability-service-providers-shuttering-in-many-states/29480/ (In a survey in July of 2021, half of states reported that Medicaid home and community-based services providers have closed since the start of the pandemic. “Adult day programs were the most likely to have closed followed by in-home care providers, supported employment and group homes . . .”.
[30] Schiltz, supra n. 24.
[31] A. Leggett et al. “Care Challenges Due to COVID-19 and Mental Health Among Caregivers of U.S. Adults with a Chronic or Disabling Condition”, Innovation in Aging. Vol. 5, 3, 2021. DOI: 10.1093/geroni/igab031
[32] Amber Ferguson. “Unpaid Caregivers: How America Treats Women Caring for Paralyzed Partners”. The Washington Post (Aug. 6, 2021) available at: https://www.washingtonpost.com/business/interactive/2021/caregiver-partner-paralyzed-marriage-pandemic/
[33] Id.
[34] This discussion is adapted from Schiltz, supra note 21, at 26-27 (footnotes omitted), and from Elizabeth R. Schiltz, A Contemporary Catholic Theory of Complementarity, in Feminism, Law, and Religion 1, 18-20 (eds. Marie Failinger, Elizabeth R. Schiltz & Susan J. Stabile) (2013).
[35] 110 Columbia Law Review 1 (2010).
[36] I recognize that this is a loaded and contested term, and that there are many people who consider themselves feminists (myself included) that do not hold these views, including the relational or care feminists identified above, whose work I have analyzed in many of the articles cited in the references to this paper. For sake of brevity, though, I will be referring to “feminists” in the remainder of this paper as the particular type of feminist who took this position in the 1960s and 1970s, and who continue to see abortion as the one vital prerequisite for achieving equality for women.
[37] 141 S. Ct. 2619 (2021) (cert granted).
[38] 410 U.S. 113 (1973).
[39] 505 U.S. 833 (1992).
[40] Amicus Brief of 240 Women Scholars and Professionals, and Prolife Feminist Organizations in Support of Petitioners, Dobbs v. Jackson Women’s Health Organization, No. 19-1392 (S. Ct. argued Dec. 1, 2021), at p. 5.
[41] See Schiltz, supra note 21 for more detailed discussion of the legislative responses to the crisis in childcare.
[42] Williams, Joan C., The Pandemic Has Exposed the Fallacy of the ‘Ideal Worker’, Harvard Business Review (May 11, 2020), available at: https://hbr.org/2020/05/the-pandemic-has-exposed-the-fallacy-of-the-ideal-worker
[43] Id.
[44] Id.
[45] Kearney, M. and Levine, P., Early Evidence of Missing Births from the COVID-19 Baby Bust (Dec. 13, 2021), available at: https://www.brookings.edu/research/early-evidence-of-missing-births-from-the-covid-19-baby-bust/
[46] Portions of this section are adapted from Elizabeth Schiltz, Hauerwas and Disability Law: Exposing the Cracks in the Foundations of Disability Law, 75 Journal of Law and Contemporary Problems 23, 30-33 (2012).
[47] Thomas E. Reynolds, Vulnerable Communion: A Theology Of Disability And Hospitality 25 (2008).
[48] James I. Charlton, Nothing About Us Without Us (1998).
[49] Reynolds, supra note 47, at 29.
[50] Hans Reinders, Receiving the Gift of Friendship: Profound Disability, Theological Anthropology, and Ethics 86 (2008).
[51] Id. at 67.
[52] PL 101-336, July 26, 1990, 104 Stat 327, codified at 42 U.S.C. §§ 12101-12213.
[53] ADA, Title III, codified at 42 U.S.C. §§ 12181-12189.
[54] ADA Title II, codified at 42 U.S.C. §§ 12131-12165.
[55] EEOC v. Hertz, 1998 WL 5694 (E.D. Mich 1998). See also Miami Univ. v. Ohio Civ. Rights Comm, 726 N.E. 2d 1032 Ct. App. OH 1999) (finding that temporary job coaching at the beginning of employment might be a reasonable accommodation, particularly where the employee does not pay for the job coaches).
[56] Gilbert v. Frank, 949 F.2d 637, 644 (2nd Cir. 1991).
[57] ADA Title I, codified at 42 U.S.C. §§ 12111-12117.
[58] 29 U.S.C. § 214(c).
[59] Pontifical Council for Justice and Peace, Compendium of the Social Doctrine of the Church ¶¶ 270-275 (2003).
[60] Workforce Innovation and Opportunity Act, Pub.L. 113-128, § 2, July 22, 2014, 128 Stat. 1428, codified at 29 USC § 3101 et. seq.
[61] U.S. Department of Education, Office of Special Education and Rehabilitative Services, Rehabilitation Services Administration, FAQ 22-02, Criterion for an Integrated Employment Location in the Definition of “Competitive Integrated Employment” and Participant Choice (October 29, 2021).
[62] Id. at Q.20.
[63] 42 C.F.R. § 441.530. Such a setting cannot be segregated from the greater community; must protect the individual’s rights of privacy, dignity and respect, and freedom from coercion and restraint; must optimize individual initiative, autonomy, and independence in making life choices, including but not limited to, daily activities, physical environment, and with whom to interact; and must ensure that residents have privacy, the right to lock doors, freedom and support to control own schedules, access to food at any time, and the ability to have visitors.
[64] See, e.g., Proposed Disability Integration Act (H.R. 555/ S. 117) would establish strong legal incentives toward community-based living even for individuals who require long-term services and supports for activities of daily living. This would be a tremendous leap forward in integration; it would standardize services in all 50 states, eliminate waiting lists. But it would define “community based” group home dwellings as those in which 4 or fewer persons with disabilities reside. See § 3(a)(3)(B)(iii).
[65] Reynolds, supra note 47 at 75.
[66] Donati, supra note 8, at 251.