Dr. Rachmilovitz’s scholarly articles have been published in leading American law journals, and have had real life impact through its adoption into case law and federal legislation
Work in Progress:
Piece of Me: Reproductive Rights under Conservatorships
In June 2021, pop culture erupted to expose a gaping hole in the law of reproductive justice. Addressing the court for the first time in her thirteen-year conservatorship, Britney Spears claimed that her conservators were infringing her reproductive autonomy by prohibiting her to remove a contraceptive intrauterine device (IUD) from her body. A media storm followed, with outlets such as The New York Times asking: can conservatorships legally restrict a conservatee’s fundamental rights to family formation and reproduction.
To answer this question, this article, my job-talk paper, begins by reviewing the jurisprudence on disability law and reproductive rights, specifically regarding abortion, contraception and sterilization. It summarizes the precedent blocking partners’ or parents’ “veto rights” to bar women’s and minors’ reproductive choices. To lay a foundation for normative proposals, the article employs doctrines such as “the mature minor,” “best interest,” and “informed consent.” In examining the rights of people with disabilities, the article analyzes the conservatorship system and the many ways in which it denies conservatees substantive due process rights and procedural rights to access the courts and to legal representation. With the troubling case of Britney Spears at its base, the article sheds light on the ways in which the very institution of conservatorship is often bound up with sexist and ableist ideologies. Such ideologies facilitate the establishment and continuation of conservatorships imposed on many other women.
The Article explores whether, to what extent and how conservatees should retain their reproductive autonomy. It argues that a wholesale denial of such autonomy improperly infringes on the constitutional rights of people with disabilities, including their constitutionally protected autonomy, perpetuates the inadequacies of the conservatorship system and widens gaps between psychiatric medicine and law. Finally, the article canvases a range of possible frameworks to fill the gap in current probate law. For example, some possibilities include: complete control by conservators by conservators over the bodily integrity and reproductive rights of the conservatee; a rebuttable presumption in favor of the conservator, with a right on the part of the conservatee to rebut that presumption under an adaptation of abortion law’s “mature minor” doctrine; a rebuttable presumption in favor of the conservatee, with a right on the part of the conservator to rebut the presumption under the “best interest” standard that governs much of contemporary family law; and finally, complete control by conservatees over their own reproductive choices and futures. The article is less concerned with vigorously advocating for a particular reform, rather to present these various alternatives in a way that clarifies the interests involved in and the availability of different policy choices.
No Queer Child Left Behind,
51 USF. L. Rev. 203 (2017).
This article employs an interdisciplinary perspective on law and psychology to analyze the gains that lesbian, gay, bisexual and transgender (LGBT) movement has made toward protecting LGBT students from victimization in schools. LGBT students are highly marginalized, through various violations of their rights and threats to their wellbeing. While efforts to protect LGBT youth from such harms are not new, that the struggles of LGBT youth in education persist indicates these successes, thus far focused on litigation, are insufficient. Additionally, litigation is retroactive and unable to prevent victimization and legal, social and emotional injuries. The article begins with an overview of theories on identity development and victimization to illustrate negative impacts to LGBT youth. Part II analyzes the case law on adults’ claims against workplace discrimination and harassment compared to students’. It concludes courts have extended protection to LGBT students where it is unavailable to LGBT adult employees. Part III theorizes courts are more willing to protect LGBT students in order to ensure children’s healthy identity development and to preserve children’s future rights as citizens. The article suggests that going forward the LGBT rights movement ride the momentum of the recent marriage equality victory to more comprehensively tackle school-based victimization.
Family Assimilation Demands And Sexual Minority Youth,
98 Minn. L. Rev. 1374 (2014).
Parents’ assimilation demands compromise children’s healthy identity development and attachments with parents. For LGBT youth in particular, rejection from families heightens their vulnerability to negative health, legal and economic outcomes, yet leaves them under-protected by the legal system. So far, children who have experienced family mistreatment in the form of heteronormative assimilation demands on their sexual orientation or gender identity have been unable to mobilize courts to understand why assimilation demands are harmful and how to protect children from such mistreatment. Thus assimilation demands that undermine children’s identities and are harmful to their wellbeing should be recognized as an additional exception to parental rights. Rather than suggesting assimilation demands are a form of emotional abuse, this Article recommends a new framework – family in need of services – that could empower children to seek state intervention that would help families support LGBT youth and facilitate family cohesion.
Achieving Due Process through Comprehensive Care for Mentally Disabled Parents: A Less Restrictive Alternative to Family Separation,
12 U. Pa. J. Const. L. 785 (2010).
Many commentators have opined on mental disability's impact on children. Yet rarely have scholars addressed how a parent's mental disabilities impact children. Particularly scarce is the examination of the constitutionality of legal frameworks concerning parents with mental disabilities and their children. This article focuses on the constitutionality of family separation due to parental mental illness and proposes to incorporate into the law a well-established and highly successful treatment plan as an alternative to family separation. With the decrease of hospitalizations, the number of parents with mental disabilities has grown. These parents are at a heightened risk of losing custody of their children. The solution the law provides to families struggling with parental mental illness (that is, family separation by removing children or terminating parental rights) is highly troubling. Child protection is a suspect justification for such severe infringement because narrow concepts of child protection do not consider the need to protect children from harms caused in the welfare system. As such, family separation jeopardizes substantive due process rights of families both as individuals and as a collective. Separating children from parents without exploring an alternative that has a higher potential for success is an overly restrictive infringement on family integrity.
Bringing Down the Bedroom Walls: Emphasizing Substance Over Form in Personalized Abuse,
14 Wm. & Mary J. Women & L.495 (2008).
Cited by the Supreme Court of Illinois and Federal statute.
This article explores what makes domestic violence special and whether privileging certain abusive relationships, and thus certain victims, over others is justified. It argues that abuse in familial, romantic or cohabitating relationships is not necessarily any more harmful than abuse in other personal relationships; that harm from abuse should be identified through substantive criteria for which marriage or cohabitation should not be proxies; and that heightened protections should be extended accordingly. The article pinpoints the criteria that justify distinguishing domestic violence from other forms of violence and examines how federal and state domestic violence law defines protected victims and relationship. An analysis of these statues uncovers their problematic underinclusiveness on one hand and their overinclusiveness, on the other. In analyzing relationships and victims excluded from protection, the article shows that the criteria presented as distinguishing domestic violence exist in excluded relationships and victims, as well. The article challenges the exclusion of these relationships and victims by proposing a "personalized abuse" framework which abandons the use of categories for identifying victims and instead employs the criteria discussed earlier to create a substantive formula that focuses on the relationship itself to identify victims in need of legal recourse. The personalized abuse framework targets relationships in which abuse is likely cyclical and repetitive and most harmful psychologically to the victim, as relationships that abuse law should cover. After discussing the personalized abuse framework and its formula, the article examines how, by eliminating categories, the personalized abuse framework is more inclusive than existing domestic violence laws.