“More and more often, we all make silent calculations about who is entitled to what rights, and who is not. It’s not as simple as saying everyone is the same under the law anymore. We all know there’s another layer to it now.”
Matt Taibbi, The Divide: American Injustice in the Age of the Wealth Gap, p. xvii
A cursory glance at the California Code of Regulations hardly excites. Because it appears to be nothing but chapters upon chapters of rules upon rules that concern the banalities of bureaucracies, one might be tempted to describe the code as boring. Sure, there are moments of titillation: Title 17 regulates the Office of Problem and Pathological Gambling. (It includes a provision that requires casinos to make payments to the Gambling Addition Program Fund.) And then there is Title 26, which concerns “Toxics.” (It contains a subtitle that governs the Board of Barbering and Cosmetology and includes a rule that, in no uncertain terms, prohibits an establishment or school from “knowingly permit[ting] a person afflicted with an infection or parasitic infestation capable of being transmitted to a patron to serve patrons or train in the establishment or school.”) But, besides these brief flashes of the ironic and the foul, the California Code of Regulations seems utterly mundane and quite dull.
Yet, nestled within it is Title 22, which itemizes rules and regulations for the provision of social services in California. And nestled within that title is Section 51179.10, which delineates the services that pregnant women will receive when they, lacking both private health insurance and the means to pay for prenatal care out-of-pocket, look to the state’s Medicaid program for assistance in acquiring medical care. The provision requires that, alongside the expected examinations designed to assess and manage a pregnant woman’s physical health, prenatal care services administered in line with it must include assessments of women’s “nutritional status,” “health education status,” and “psychosocial status.” Notably, the health education assessment requires that a professional evaluate a woman’s “formal education and reading level . . . , religious/cultural influences that impact upon perinatal health; and client and family or support person’s motivation to participate in the educational plan.” Additionally, the psychosocial assessment requires that a professional review a woman’s “social support system; personal adjustment to pregnancy; history of previous pregnancies; patient’s goals for herself in this pregnancy; general emotional status and history; wanted or unwanted pregnancy, acceptance of the pregnancy; substance use and abuse; housing/household; education/employment; and financial/material resources” (22 C.C.R. § 51348(e)(1)(A)).
New York’s Medicaid prenatal care program mirrors California’s insofar as it requires various assessments of poor pregnant women that exceed evaluations of their physical health (Bridges 2011a, 2011b). During eighteen months of ethnographic fieldwork in the obstetrics clinic of New York City’s “Alpha Hospital,” a large public hospital that serves the city’s poor, I had the chance to observe a psychosocial assessment that a social worker, “Tina,” administered to a patient, “Erica,” as required by law. I had asked Tina to ask Erica, who was pregnant with her fourth child, if I could sit in during her consultation. Erica consented and allowed me to tape-record her session:
Tina (“T”): Are you working?
Erica (“E”): No—I’m in college still.
T: How are you supporting yourself?
E: [long pause] How could I forget what it’s called. . . . Welfare! [laughs]
T: You receive public assistance?
T: How much?
E: Um, 354. . . .
T: And does that include what they give you for your rent?
E: Yes. Well, I don’t pay rent.
T: You don’t pay rent?
E: I live in a shelter.
T: What shelter do you live in?
E: Beta Houses.
T: Who’s your caseworker?
E: Ms. C.
T: Do you have the number?
E: Yeah—I have the number: 1-212-555-1212. She has an extension: 1212.
T: And how long have you been there?
E: Almost four months.
T: And can you tell me what the circumstances were that put you in shelter?
E: Domestic violence.
T: And how long did the domestic violence last?
E: Two months.
T: So, you were in a domestic violence relationship for about two months, and then you moved to a shelter.
T: And how long was your relationship?
E: It wasn’t really a relationship. It was, like, I would say—three months.
T: I’m sorry?
E: Three months—it was, like, a three-month relationship.
T: It was a three-month relationship. And do you have a police report and an order of protection?
E: The police report, yes. Not the order of protection—still didn’t get it.
T: Would you like to talk to someone about the domestic violence?
E: No. . . .
T: Who’s the father of the baby?
E: Nathanial Thompson. [pseudonym]
T: Is the father of the baby living with you?
T: How long have you been in a relationship with the father?
E: Ten years.
T: The father of the baby?
E: Uh-huh. Same father as all the rest of them.
T: How old is he?
E: How old? 34.
T: Can you identify the father?
E: Yes. . . .
T: What’s his name?
E: Nathanial Thompson.
T: And how would you describe your relationship with the father?
T: “Fine now”?
T: Does he intend to help when the baby comes?
E: Yes—he’s my fiancé. I just didn’t get my ring yet. He better hurry up.
T: Is he working?
E: Yes. No, he doesn’t work. Sorry. He’s in college.
T: How does he support himself?
E: I know that he’s on public assistance, but I don’t know what he gets or anything like that.
T: But, he’s going to able to support you and your child?
E: Yes, he’s going to get a job by the time—he’s about to be done with college.
T: You feel that when he’s done with school, he’s going to be financially able to support the child?
E: He’s going to be making 43,000 [dollars] a year.
T: You know that already?
E: Yes. His job is already set up.
T: What does he do?
E: He’s a computer technician. I don’t know how he does it. I hate computers.
T: You are in a better situation than a lot of our patients.
E: I just have to get up out this dag-gone shelter. Then, I’ll be fine.1
Thus, a state actor engaged Erica in a conversation that touched on many highly sensitive topics, including her previous romantic relationship, which tragically involved violence severe enough to land her in a shelter; the healthiness of her relationship with the father of her children; her earnings capacity; and the earnings capacity of the father of her children. Tina went on to ask Erica about her history, if any, with tobacco and alcohol products, controlled substances, mental illness, sexual abuse and violence, and a host of other intimate issues.
It is paramount to recognize that the sole reason Erica was compelled to have this conversation with a state actor was because she was pregnant and had presented herself to a public hospital with the hope of receiving state-assisted prenatal care. It is also important to observe that this is a painfully personal conversation that privately insured pregnant women can and, absent unique circumstances, usually do avoid.
It is not hyperbole to describe the inquiries required by the Medicaid programs in California and New York as extensive. Because of the all-encompassing nature of the interrogation, many persons might find the bureaucratic apparatus that has been constructed and reserved for women without private health insurance to be troubling. And many of those persons might describe their disquietude in the language of privacy.2 That is, the programs of public healthcare in California and New York do not leave the women that it serves with much privacy.
If we conceptualize the family as a private entity that the government ought not to regulate (absent evidence of abuse or neglect of one of its members), then these programs invade poor women’s privacy inasmuch as they allow the government to monitor and regulate the family unit for the duration of the pregnancy and possibly after. If we understand certain information about ourselves as private—like details about our marriages or romantic relationships, the healthiness of our eating habits, the frequency with which we exercise (or not), and our success at remaining gainfully employed (or not)—then these programs invade poor women’s privacy inasmuch as they require women to divulge that information and inasmuch as they share that information, once collected, with third parties. And if we understand a woman’s decision about whether or not to become a mother to be a private matter, then most states’ Medicaid programs violate poor women’s privacy in that they implicate themselves in this decision by using government largesse to direct poor women toward or away from motherhood.
The Medicaid programs for pregnant women seeking prenatal care in California and New York—which are typical of other states’ Medicaid programs in their demands—demonstrate a simple reality: To be poor is to be subject to invasions of privacy that we might understand as demonstrations of the danger of government power without limits. Indeed, one would expect that if the Constitution contains individual rights and liberties that restrict state power, it would prevent precisely what poor women endure with respect to state intrusions into their private lives.
Moreover, if the state treated other persons who receive government benefits the same way that the state treats poor mothers who receive government benefits, there would be a general sense of outrage; people would claim, loudly and frequently, that the government was violating citizens’ privacy. Imagine what would happen if the government required farmers to divulge information about their sexual, occupational, and social histories when they applied for farm subsidies, or if it gave them larger subsidies if they promised not to terminate any future pregnancies. After much outcry, these laws would likely be struck down as a violation of farmers’ privacy rights.
Indeed, if a state or the federal government compelled all pregnant women—poor and non-poor alike—to be counseled about smoking and drinking alcohol, to undergo “treatment and intervention directed toward helping [them] understand the importance of . . . good nutrition during pregnancy,” and to discuss with a state actor their “goals for [themselves] in this pregnancy” and their “general emotional status,” one would expect an uproar about the privacy invasions visited upon pregnant women by a paternalistic and overreaching state. Nevertheless, courts have routinely upheld the constitutionality of the privacy invasions that Medicaid programs force upon poor women.
The Government Interest in Protecting Children
Some will not be disquieted at all by poor mothers’ experiences with the state. They will insist that a poor mother’s privacy may justifiably be invaded when the state seeks to ensure that a woman’s child will be born into a healthful environment and that the woman will properly parent the child once born. Proponents of this view will assert that it is pursuant to this state interest that the state gathers and shares private information about the woman, monitors her and her existing family unit, and constrains her reproductive decisions. It is important to take this claim seriously.
For example, consider California’s Medicaid program and its requirement that, during the assessment of a woman’s psychosocial status, a social worker inquires into a woman’s “housing/household” situation. Arguably, the idea is that, if the woman reveals that she is cohabiting with a man to whom she is not married, the state has an interest in continuing to monitor the woman and her family because statistics reveal that children living in unmarried-couple households are at higher risk for physical and sexual abuse (Sedlak et al. 2010). Similar arguments can be made about inquiries that, for example, confirm that a woman smokes cigarettes, drinks alcohol, or does not go to all of her scheduled prenatal care appointments.
Some will argue that this information may index a woman’s neglect of her fetus—revealing that she is likely to be a neglectful parent. They will claim that if the encyclopedic inquisitive net that the state casts indicates a risk that a particular individual will fail her child, the state is justified in maintaining her within its regulatory apparatus in order to protect the child once it is born. Proponents of this view will argue that the exhaustiveness of the state’s inquest—and the fact that it touches on information and areas of life that the woman, and society generally, consider private—is necessary because the goal is the protection of the child. The means to this end, the invasion of poor women’s privacy, is argued to be an unfortunate, yet inevitable, consequence of pursuing this goal.
But, why is the state convinced that the children born (or to be born) to poor women are in need of protection? Why is the state so persuaded of this fact that it has erected an elaborate bureaucratic apparatus that meticulously and methodically audits the pregnant poor? Indeed, we must ask, Why does the state presume that poor mothers are at risk of abusing and/or neglecting their children?
The most salient characteristic shared by all women receiving Medicaid benefits during their pregnancies is their poverty. And we might conclude that it is this characteristic that casts suspicion over poor mothers’ ability to adequately care for their children. That is, if we are feeling charitable, we may conclude that the state presumes that poor mothers are at risk of abusing and/or neglecting their children because a mother’s poverty makes it more likely that she will be unable to meet the material needs of her child. This charitable interpretation posits that the state invades a poor woman’s privacy and impinges on her privacy rights because the state assumes that she may not be able to provide the basics for her child: food, clothing, shelter, and healthcare.
However, if this benign interpretation were true, the questions asked of poor women throughout their prenatal care would concern, specifically, their ability to provide their children with food, clothing, shelter, and healthcare. If this interpretation were true, the ambit of the state’s inquisition would focus on whether the woman’s financial condition could support an expanded family. Instead, inquiries about women’s sexual histories, experiences with substance use and abuse, histories of sexual and domestic violence, and strategies for preventing the conception and birth of more children far exceed the purview of concern about the material conditions in which newborn children will be placed.
Indeed, we need to adopt a less benign interpretation: The state presumes that the risk of poor mothers abusing and neglecting their children is high, and this presumption of high risk has very little to do with the fear that poor mothers will not be able to provide for their children’s basic needs. Instead, in this book I argue that the presumption of high risk has everything to do with the moral construction of poverty—the idea that people are poor because they are lazy, irresponsible, averse to work, promiscuous, and so on. This individualist explanation of poverty is the simple idea that people are poor because there is something wrong with them. If personal failures are the presumptive cause of poverty, then poor mothers ought to be supervised closely, as their personal failures necessarily implicate children.
It is worth noting, early and often, that wealthier women engage in the same behaviors in which poor women engage. Wealthier women cohabit with men to whom they are not married. Wealthier women have had many sexual partners. Wealthier women have used and abused illicit drugs. They, too, miss prenatal care appointments. They, too, have histories of sexual and domestic violence. They, too, have unplanned pregnancies. They, too, find themselves pregnant after being in relatively short relationships with the fathers of their babies. They, too, ought to contemplate strategies for preventing the conception and birth of more children if they want to limit the size of their families.
Yet, no state has erected an extravagant bureaucratic tool with which it can take an accounting of every non-poor pregnant woman. This is telling. It suggests that the state is not really interested in protecting children from abuse and neglect. Instead, it is only interested in protecting some children from abuse and neglect. That is, the state assumes that only some children need to be protected from their mothers. And those children are the ones that are born to poor women.
Why does the state make this assumption about poor women? It cannot be because poor women uniquely engage in problematic behaviors and have problematic histories; wealthier women do, too. It has to be because of something else. The thrust of this book is that this “something else” is the individualist, moralizing explanation for poverty accepted by society, the architects of these laws, and the jurists that interpret these laws as consistent with the Constitution.
Justice Marshall articulated this argument in his dissent in Wyman v. James (400 U.S. 309 (1971)), in which the Court upheld suspicionless searches of the homes of poor mothers receiving welfare assistance:
It is argued that the home visit is justified to protect dependent children from “abuse” and “exploitation.” These are heinous crimes, but they are not confined to indigent households. Would the majority sanction, in the absence of probable cause, compulsory visits to all American homes for the purpose of discovering child abuse? Or is this Court prepared to hold as a matter of constitutional law that a mother, merely because she is poor, is substantially more likely to injure or exploit her children? Such a categorical approach to an entire class of citizens would be dangerously at odds with the tenets of our democracy. (341–42)
Justice Marshall is right: Such an approach is dangerously at odds with the tenets of our democracy. Nevertheless, it is an approach that the Court has sanctioned time and time again.
Thus, a woman’s inability to thrive within a capitalist economy—and her failure to attach herself to a man who has—is taken to predict the likelihood that she will mistreat and/or exploit her child. Moreover, the mistreatment and exploitation of children is sufficiently probable that the endeavor to prevent it justifies dispossessing all poor mothers of freedom from state intervention in private matters. Questions are asked of a poor woman not because the child to whom she will give birth might be wounded or wronged in some way—by his mother’s imperfect diet, the marijuana that she smoked years ago, or her inability to read beyond a tenth-grade level. Instead, this information is gathered because the patient’s poverty is presumed to indicate a flawed character that might manifest in harm to her child.
Now, some may counter that poor mothers simply have exchanged their privacy rights for state assistance. This position contends that if the government exercises power in poor mothers’ lives in ways that the Constitution would ordinarily prohibit, it is only because poor mothers have traded their rights to limit that power for a welfare benefit. While initially appealing, the argument ultimately reveals itself to be specious.
This argument, which Chapter 2 addresses in depth, is premised on the assumption that poor mothers would have effective privacy rights and meaningful privacy if they did not accept a government benefit. But, this simply is not true. We need only imagine what would happen if poor mothers refused government benefits: They likely would be investigated by child protective services (CPS) for child neglect.
To explain: The benefits that poor mothers accept—the assistance for which they purportedly exchange their ostensible privacy rights—enable beneficiaries to provide their children with basic necessities. Medicaid enables poor mothers to access healthcare. Temporary Assistance for Needy Families (TANF) enables poor mothers to provide food and clothing to their children. The Special Supplemental Nutrition Program for Women, Infants, and Children (WIC) and the Supplemental Nutrition Assistance Program (SNAP, formerly known as food stamps) enable mothers to meet their children’s nutritional needs. Public housing enables poor mothers to provide their children with shelter.
If poor mothers refused these benefits, they would not be able to provide their children with the basics: food, clothing, shelter, and healthcare. And the failure to provide these basics is textbook child neglect (DePanfilis 2006).
Thus, if an indigent mother refused to exchange her ostensible privacy rights for a government benefit, she would certainly find herself under investigation by CPS. Moreover, the point of a CPS investigation is to divest the family and the members that constitute it of privacy so that they may become visible to the state, enabling the state to determine whether the parents are competent to raise their children without ongoing intervention and regulation.
Accordingly, poor mothers exist in a fraught situation: They lose their privacy if they accept government assistance (because safety net programs demand access to private areas of beneficiaries’ lives); and they lose their privacy if they do not accept government assistance (because they will be unable to provide their children with basic necessities, thus making them vulnerable to a privacy-invading investigation by CPS). Thus, the legal and social condition of poor mothers is one that is devoid of privacy—one in which state power surrounds them at all times, without regard to whether they receive public benefits. Either way, receiving public assistance or not, it is impossible for poor mothers to create a space free of state power. As such, we can conclude that poor mothers’ vulnerability to state power—their complete exposure to government regulation—is not at all contingent on their receipt of a welfare benefit.
The Moderate Claim and the Strong Claim
In this book I make two interventions into the conversation around poor mothers’ experiences with state power. First, I seek to complement accounts of how the state regulates poor mothers through TANF by offering an account of how the state regulates poor mothers and mothers-to-be through Medicaid. The privacy invasions that the state demands when poor mothers receive benefits from TANF programs have been well documented (Gilliom 2001; Gustafson 2011). However, there is a gap in the literature due to the lack of scholarly attention to Medicaid, an important program on which many poor women rely. This book does not attempt to canvass all of the government programs on which poor people depend and to describe the privacy invasions demanded (or not demanded) by each; instead, I seek to illuminate the privacy invasions demanded of poor women by one frequently overlooked, yet highly utilized program.
Second, in this book I advance the claim that poor mothers have been deprived of privacy rights. There are two ways to understand this assertion:
1. One might understand the claim that “poor mothers have been deprived of privacy rights” to be a rhetorical argument. If the claim is rhetorical, then it asserts that these mothers do in fact have these rights; however, for all practical purposes, they lack them. Under this formulation, describing poor mothers as having “no privacy rights” is a rhetorical flourish—meant to underscore the impotence of the privacy rights that they do indeed possess. This is the book’s moderate claim. It asserts that poor mothers have privacy rights, but these rights are incredibly weak. Essentially, poor mothers have no effective privacy rights.
2. One might understand the claim that “poor mothers have been deprived of privacy rights” to be an analytical argument. If the claim is analytical, then it asserts that poor mothers actually do not possess privacy rights. This is the book’s strong claim. It contends that poor mothers have been dispossessed of privacy rights; they are not bearers of privacy rights.
Let’s elaborate on the strong claim: It begins with the recognition that privacy rights are imagined to generate value. Over the years, many scholars have theorized about this value. One might divide these theories into two camps: There are those that concern themselves with the value of privacy to the individual, and there are those that concern themselves with the value of privacy to society more generally. Scholars writing in the former camp have often used the language of dignity, personhood, autonomy, and individuality when describing what privacy protects and what makes privacy so vital to the individual (Bloustein 1978).
Other scholars turn their attention to the value that privacy produces for society more generally (Cohen 2000). For example, legal philosopher Anita Allen (1988) has noted that while we “promote and protect privacy to show moral respect for individuals and to confer moral dignity,” the moral value of privacy is also tied to the fact that privacy makes “individuals more fit for social participation and contribution,” thus benefiting “group life” (48). Privacy scholar Daniel Solove (2008) has also championed privacy by looking to the value that it creates for society, encouraging his readers to understand “privacy as having a social value” and to appreciate “the benefits it confers on society by enhancing and protecting certain aspects of selfhood” (92).
So, privacy is imagined to generate value—either for the individual or for society. And realizing this value is the reason why we recognize privacy rights. However, we also recognize that privacy is not inevitably put to noble uses. As Allen (2000) notes, “privacy itself is not an unqualified good” (1195). Privacy is the cover that prevents sunlight from disinfecting, the shield that permits crimes to go undetected, the barrier that obstructs help from reaching the helpless.
Accordingly, if the individual enjoying privacy rights will not put them to good uses, her enjoyment of these rights will not produce the value that otherwise justifies their provision. Indeed, her enjoyment of privacy rights may actually produce a negative value, as it allows her to use privacy in ignoble ways.
Now, due to the moral construction of poverty, there is a presumption that poor mothers will not put privacy rights to good uses. Indeed, the moral construction of poverty asserts that the poor are behaviorally and/or ethically flawed. (Their poverty proves as much.) Further, because poor mothers are pregnant or parenting, their behavioral and ethical flaws will, as a matter of course, affect children. Accordingly, the strong claim contends that poor mothers are not given privacy rights because society, and thus the law, presumes that their enjoyment of privacy will realize no value or a negative value (Eubanks 2006, 90; Handler and Hasenfeld 1991).
Thus, the strong claim argues that wealth is a condition for privacy rights and that, lacking wealth, poor mothers do not have any privacy rights. Accordingly, the privacy invasions demanded by Medicaid (and TANF and WIC and public housing and the child protection system) do not violate the privacy rights of poor mothers because their socioeconomic status has already precluded their possession of any privacy rights that the state is obliged to respect.
One need not accept the strong claim in order to appreciate this book’s exploration of poor mothers’ experiences with the state. Indeed, all of the arguments that I advance in this book as to why poor mothers do not have privacy rights in the strong sense are relevant as to why they do not have privacy rights in the moderate sense. That is, if poor mothers have not been given privacy rights (in the strong sense) because they are imagined to be behaviorally or ethically flawed, their behavioral and ethical flaws would also explain why they have been given ineffective privacy rights (i.e., the moderate claim). And if poor mothers have not been given privacy rights (in the strong sense) because their behavioral or ethical flaws necessarily implicate children, these flaws would also explain why have been given ineffective privacy rights (i.e., the moderate claim). The moderate claim and the strong claim both produce the circumstance in which poor mothers find themselves: completely exposed to state power.
Nevertheless, the strong claim ought to be taken seriously. Not only does it alter the terms of the current conversation, but it may also explain why positive rights are only an illusory solution to the predicament that poor mothers face. Chapter 1 explores this possibility.
Additionally, the strong claim allows us to draw parallels between poor mothers and other groups that have been deprived of or otherwise disqualified from having a right or a set of rights. Consider that Chief Justice Taney declared in Dred Scott (Dred Scott v. Sandford, 60 U.S. 393, 407 (1856)) that the “negro . . . had no rights which the white man was bound to respect.” Consider as well that, until the Court’s decision in Obergefell v. Hodges (135 S.Ct. 2584 (2015)), sexual minorities did not have the right to marry, although the Constitution has long been interpreted to bestow the right to their straight counterparts. Speaking about poor mothers as analogously not bearing a set of rights—privacy rights—encourages us to identify continuities between poor mothers and these other groups that have been deprived of certain legal protections. It allows us to think about the issue in new ways. And it allows us, perhaps, to imagine different solutions—possibilities that the Conclusion explores.
Finally, the strong claim permits us to consider the concept of informal disenfranchisement. Informal disenfranchisement refers to the process by which a group that has been formally bestowed with a right is stripped of that very right by techniques that the Court has held to be consistent with the Constitution. The best precedent for, and example of, informal disenfranchisement is black people’s experience with voting rights. While the Fifteenth Amendment formally enfranchised black men, white supremacists in the South employed methods—poll taxes, literacy tests, residency requirements, and white primaries—that made it nearly impossible for black men (and after the passage of the Nineteenth Amendment, black women) to actually vote in the South for a century after their formal enfranchisement. Moreover, the Court held that these techniques of racial exclusion from the polls were constitutional.3
Central to the concept of informal disenfranchisement is the requirement that the mechanisms that function to deprive an individual of a right enjoy the Court’s explicit approval. That is, in order for an individual to be informally disenfranchised of a right, the laws and practices that act to strip the individual of the right must be perfectly legal, with the Court having deemed them to be consistent with the demands of the Constitution. Thus, if poor mothers have been informally disenfranchised of their privacy rights, then the problem is not one of noncompliance with their rights, if we understand noncompliance as the failure to act in accordance with the command of a law. The problem that this book explores is not one involving state actors who disobey laws designed to protect poor mothers’ privacy rights. Instead, the problem is one involving governments that disobey no laws at all—including, most importantly, the Constitution as interpreted by the Supreme Court. No laws are being broken when governments regulate poor families, extract and share personally identifiable and intimate information about indigent mothers, and coerce poor women into and out of motherhood. When governments install themselves in poor mothers’ private lives—an installation that privacy rights are designed to disable—they act entirely in accordance with what the law demands. This is informal disenfranchisement: the legal deprivation of a right that has been formally bestowed.
The next section is a philosophical and political defense of the strong claim. It is my hope that readers who presently are skeptical of this claim will read the next section and walk away utterly convinced of the claim’s propriety. Nevertheless, if the reader remains skeptical, then she is invited to understand the rest of the book as an exploration of why, consistent with the moderate claim, poor mothers’ extant privacy rights have been made ineffective. To this reader, the book will be an analysis of why poor mothers have been given meaningless rights and an exploration of what we can do to give those rights some teeth. However, those persuaded of the truth of the strong claim should understand the rest of the book as a study of the informal disenfranchisement of poor mothers and an interrogation of the changes that need to be achieved in order to bring this group within the class of persons to whom privacy rights are ascribed.
1. This interview was first published in Bridges (2011a). Please note that the copyright in the [Harvard] Journal of Law and Gender is held by the president and fellows of Harvard College and that the copyright in the article is held by the author.
2. There is a debate in the philosophical literature about whether privacy is best understood as a state wherein persons are inaccessible to others or whether it is best understood as the degree of control a person has over his or her accessibility. See Anita Allen, Uneasy Access: Privacy for Women in a Free Society (1988). Illustrating the stakes of this debate, privacy scholar Helen Nissenbaum (2010) asks, “Does a person stranded on a desert island really have privacy? Has a person who intentionally posts photographs of himself to a Web site such as Flickr lost privacy? Does a person who is forced to wear clothing at a public gathering have more or less privacy?” (71). One will answer these questions differently depending on the definition of privacy that one adopts.
If we understand privacy as inaccessibility, then the right to privacy is the right to be inaccessible to the government. If we understand privacy as control, then the right to privacy is the right to control whether the government has access to us. Ultimately, this book does not need to resolve which of these definitions is better than the other, as poor mothers’ privacy is compromised in both senses. That is, poor mothers have no ability to remain inaccessible to the government; nor do they have the ability to control whether or not the government can access them.
3. See Breedlove v. Suttles, 302 U.S. 277 (1937) (upholding the poll tax in state elections); Grovey v. Townsend, 295 U.S. 45 (1935) (upholding the white primary); Lassiter v. Northampton Cty. Bd. of Elections, 360 U.S. 45 (1959) (upholding the literacy test); Grovey v. Townsend, 193 U.S. 621 (1904) (upholding residency requirements).