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The Sam Cary Bar Association: Colorado’s Vanguard for Black Attorneys

Robyn Munn — Thu, 29 May 2025 16:25:01 +0000

The Sam Cary Bar Association: Colorado’s Vanguard for Black Attorneys Robyn Munn Thu, 05/29/2025 - 10:25

Hon. Gary Jackson '70

The following article, Sam Cary Bar Association: Colorado’s Vanguard of Black Attorneys, originally appeared in The Colorado Magazine, Spring/Summer 2025. It is reprinted here with permission from History Colorado. You can view the original publication on History Colorado’s website.

Originally published online: May 7, 2025
Author: Hon. Gary Jackson ’70

In the spring of 1971, seven young attorneys met in a Denver office and embarked on a singular mission: to advance equal opportunities for Black lawyers and judges.

It is almost commonplace today to see Black prosecutors carrying the torch of democracy and fulfilling the American principle that the rule of law should apply to all people equally. Former Vice President Kamala Harris as San Francisco District Attorney; Alvin Bragg, New York County District Attorney; Fani Willis, District Attorney of Fulton County, Georgia; and Jerry Blackwell, former Minnesota prosecutor in the George Floyd murder trial are all Black prosecutors who gained nationwide media attention in prosecuting celebrity defendants for criminal conduct.

But even in the not-so-distant past, things were so very different.

I graduated from the University of Colorado Law School (CU Law) in 1970. At that time, the nation was divided over the Vietnam War (among other issues), with student protests at Kent State, Jackson State, the University of California at Berkeley, and various other colleges and universities across the nation. The country was still reeling from the untimely deaths of Dr. Martin Luther King Jr. and presidential candidate Robert Kennedy. The Black Power movement was impacting all aspects of my life. In the legal arena, the death penalty had been declared unconstitutional in the case Furman v. Georgia by the US Supreme Court. The Hon. Thurgood Marshall was the Black Supreme Court justice we had revered since his selection in 1967, when Jim Cotton, Sonny Flowers, and I were admitted to CU Law. Edward Brooks of Massachusetts was the first Black US senator since the Reconstruction years. Shirley Chisholm of New York was the first Black person to run for president of the United States.

In 1970, when I was hired as a deputy Denver district attorney, I was the only Black deputy DA in the state of Colorado. There was one Latino deputy DA—Roy Martinez—but there were no Asian Americans and only four women who held the office: Anne Gorsuch, mother of current US Supreme Court Justice Neil Gorsuch; Ann Allott, sister-in-law of Gordon Allott, a former US senator; Marilyn Wilde; and Orrelle Weeks, who later became our first Denver Juvenile Court woman judge. All four women were siloed into the non-support section of the office, collecting child support payments or practicing law in the juvenile section.

My “welcome” to the Bar of Colorado was a 1969 photograph in The Denver Post with Art Bosworth, David Fisher, and Bob Swanson. We had been hired as legal interns by Mike McKevitt, Denver District Attorney. Each of us wore a suit and tie. The only difference in our appearance was the three-inch afro on my head, the goatee on my chin, and, of course, my skin color. The photograph set off a firestorm of anonymous letters and even a negative editorial comment by a Colorado Supreme Court justice who called my appearance a disgrace to CU Law and the Denver District Attorney’s Office. My moment of celebration for the achievement of academic success initiated me immediately into the resistance that lawyers of color have faced ever since we entered the profession of law and the American Bar Association in 1925.

A gathering of District Attorney's office alumni in 1982. The photograph was taken on the steps of the old District Attorney Building on Speer Blvd and Colfax. At least 10 members of that staff became County, District, and Presiding Disciplinary judges.

Courtesy of Gary M. Jackson

Filling the Need for an Affinity Association

Sometime in the spring of 1971, Billy Lewis called a meeting at his office on 1839 York Street, inviting six other Black attorneys. Lewis, a graduate of Denver’s Manual High School and the first Black scholarship basketball player for the University of Colorado in 1956, was a graduate of Howard University, the historic Black law school in Washington, DC. He had an integrated law firm with Black partners Morris Cole and Phil Jones and white partners Natalie and Hank Ellwood. The other six lawyers who attended the meeting were King Trimble, Raymond Dean Jones, Daniel Muse, Norm Early, Phil Jones, and me.

There were a total of fifteen Black lawyers in the state of Colorado at the time, two of whom were judges. Hon. James C. Flanigan, Denver district judge, was appointed as the first Black judge in 1957 on the Denver Municipal Court bench. Ten long years after Jackie Robinson broke the color line for Blacks in baseball in 1947, Judge Gilbert Alexander was the other Black judge in Colorado.

At that meeting, we decided to create a bar association focusing on the needs of Black attorneys and the issues of our Black community. The organization would be a local one but in the mold of the National Bar Association (NBA), the nation’s oldest and largest national network of predominantly Black attorneys and judges. The NBA was established in 1925 at the convention of the Iowa Colored Bar Association. On August 1, the NBA incorporated in Des Moines, Iowa, as the “Negro Bar Association” after several Black lawyers were denied membership in the American Bar Association. When the number of African American lawyers barely exceeded 1,000 nationwide, the NBA tried to establish “free legal clinics in all cities with a colored population of 5,000 or more.” Its members supported litigation that achieved a US Supreme Court ruling that defendants in criminal cases had to be provided with legal counsel. Members of the NBA were leaders of the pro-bono movement at a time when they could least afford to provide legal services for free. When the Supreme Court outlawed school segregation in Brown v. Board of Education, the NBA was only nineteen years old.

In Colorado, we named our organization the Sam Cary Bar Association (SCBA) after one of Colorado’s first prominent Black lawyers: Samuel Eddy Cary, who had a solo practice in Denver’s Five Points neighborhood. Born in 1886 in Providence, Kentucky, Cary was the first Black graduate of Washburn University School of Law in Topeka, Kansas. Admitted to the Colorado Bar in October 1919, he was known for his outstanding trial abilities and for defending the rights of Black, Brown, and poor people. At the time, he was the only Black attorney practicing law in Colorado. On September 30, 1926, Sam Cary had to endure the harshest jolt of his life and career when he was disbarred by the all-white Colorado Bar Association. Exactly nine years later, on October 1, 1935, he was reinstated to the Colorado Bar; he continued practicing law until June of 1945, when he passed away as a result of throat cancer.

In 1971, the founding members of the SCBA researched the late Sam Cary’s background, including the reason for his disbarment. Founders spoke with former Colorado Chief Justice O. Otto Moore, who advised us that the disbarment was both racially and politically motivated at a time when members of the Ku Klux Klan held positions of power in state and local government, as well as in the judiciary. Thus, the SCBA took Cary’s name and became Colorado’s first minority bar association, or what is now known as a specialty or affinity bar association. We were all under thirty-five years of age, activists, community organizers, and fearless in terms of what we wanted to accomplish: equal opportunities for Black lawyers and judges. With no Black partners in the commercial law firms along Denver’s Seventeenth Street, no Black professors at the law schools, and only two Black judges and one Black deputy district attorney in all of Colorado, it was a profession in which many voices were not being heard and the economic rewards were all directed toward white men.

Samuel Eddy Cary was the first Black man to graduate from Washburn Law School in Kansas. He moved to Colorado and began practicing law here in 1919.

Courtesy of Gary M. Jackson

The Vanguard

The Sam Cary Bar Association became the vanguard organization in advancing the need for more lawyers of color and women attorneys in the state of Colorado. It was our mutual belief that forming a Black bar association was necessary for a multitude of reasons. We came together to create a bar to expand our influence—not through separation but through our need for inclusiveness and equity in the legal profession. Each of us became a leader within the legal profession. SCBA played a significant role in expanding the representation of diverse lawyers to key appointments of judgeships, committees, and associations. Importantly, four of the seven founders went on to become city, state, and federal prosecutors at various times in their careers.

Leaders of SCBA were not only local leaders but rose to national acclaim. Wiley Y. Daniel was our tenth SCBA president in 1981. He accelerated to high public profile as Colorado’s first Black federal court judge in 1995, selected by President Bill Clinton. Before his appointment to the bench, he served as the first and only Black president of the Colorado Bar Association from 1992 to 1993. Born in 1946 in Louisville, Kentucky, Daniel earned his undergraduate and law degrees from Howard University. After practicing law for seven years in Detroit, he moved to Colorado in 1977. He immediately became an active member of the SCBA. Appointed chief judge of the US District of Colorado in 2008, Judge Daniel was the president of the Federal Judges Association from May 2009 to April 2011. In 2013 he was appointed as a special mediator for the City of Detroit’s bankruptcy—the largest municipal bankruptcy at that time, involving approximately 18 billion dollars of debt. Judge Daniel, along with a panel of mediators, helped negotiate a settlement with creditors and with city employees regarding their pensions. According to the Associated Press, the settlement led to about 7 billion dollars of debt being restructured or wiped out, and to other financial relief set aside to improve city services.

Another significant case of Judge Daniel’s was Roy Smith v. Gilpin County, Colorado. This civil rights case involved extraordinary allegations of racially motivated crimes against Roy Smith, an African American man, including torture while hanging from a beam in his house, being shot at, and being assaulted with a vehicle. Among other charges, the case alleged that the Sheriff’s Department failed to investigate Smith’s complaints of ongoing racial harassment and failed to protect him based on racial animus. As The Denver Post reported on December 24, 1996, Judge Daniel stated in a hearing that the case had “the most appalling and reprehensible record I’ve ever seen.” He found that the defendants were not entitled in qualified immunity, stating that Smith “demonstrated not only a pattern of deliberate indifference on the part of the individual officers and the Sheriff’s Department, but also presented direct evidence of racial slurs that was[sic] sanctioned by the Sheriff’s Department.” Settled before trial, the case was featured in an episode of 20/20 with Barbara Walters and was the subject of a documentary screened at the Denver Film Society.

Former presidents of the Sam Cary Bar Association, from left to right, Wally Worthan, Hubert Farbes, Earle Jones, Linda Wade Hurd, William Harold Flowers, Jr., Hon. Ray Dean Jones, Hon. Gary M. Jackson and Hon. Wiley Y. Daniel.

Courtesy of Gary M. Jackson

Lastly, Judge Daniel was an extraordinary leader for the Sam Cary Bar Association. He served as chair of the Sam Cary Convention Committee in hosting the sixty-first Annual Convention of the National Bar Association in July 1986. With more than 1,500 Black lawyers and judges coming to Denver, his leadership put the SCBA on the map of the best Black bar associations in the country. Daniel passed away in May 2019.

Hon. Gregory Kellam Scott was appointed a Colorado Supreme Court justice in 1993 by Governor Roy Romer. Graduating from Rutgers in 1970, Scott earned his law degree with honors at Indiana University Law School. He started his career with the US Securities and Exchange Commission in Denver. Scott moved on to teach law at the University of Denver Law School for more than a decade. On the Colorado Supreme Court, he participated in more than 1,000 cases. Scott authored the opinion in Hill v. Thomas, a landmark case that concluded in early 2000 in which the Supreme Court upheld legislation that allowed a buffer zone around anyone entering or exiting healthcare facilities to avoid violence by picketers. During his time on the bench, Scott issued a concurring opinion in the 1994 decision of Evans v. Romer, in which the court blocked the enforcement of Amendment 2, a 1992 constitutional amendment prohibiting government protections for gays and lesbians. “Amendment 2 effectively denies the right to petition or participate in the political process by voiding…redress from discrimination,” Scott wrote. “[L]ike the right to vote which assumes the right to have one’s vote counted, the right peaceably to assemble and petition is meaningless if by law, government is powerless to act.” Scott resigned from the Supreme Court in 2000 and died on April 1, 2021.

A third leader of SCBA who gained national prominence was Norman Strickland Early Jr. Norm Early attended American University and then obtained his Juris Doctorate at the University of Illinois at Champaign. He came to Colorado in 1970 on a Reginald Heber Smith Community Lawyer Fellowship and worked for the Legal Aid Society of Metropolitan Denver. In 1972 District Attorney Dale Tooley hired Early as a deputy district attorney; he served in the position until 1983, when Governor Richard Lamm appointed him as head of the Denver District Attorney’s Office, a post he held until 1993.

Early became known nationally as a fierce advocate for the rights of victims, and he worked hard to create the most diverse district attorney’s office in the state. He helped establish and lead organizations such as the National Organization for Victim Assistance, for which he served as president. The Colorado Organization for Victim Assistance named its highest honor the “Norm Early Exemplary Leadership Award.” A champion of crime victim’s rights, Early was also co-founder of two premier organizations dedicated to ensuring the success of Black lawyers. He created an organization to unite and advance Black prosecutors in 1983—the National Black Prosecutors Association—with 100 individuals gathered at its first meeting in Chicago, and was elected its first president. In 1971 Early was one of the seven co-founders of the Sam Cary Bar Association. Norm Early passed away on May 5, 2022.

William Harold “Sonny” Flowers, Jr. and Gary M. Jackson in 1991.

Courtesy of Gary M. Jackson

Following in SCBA’s Footsteps

Other specialty bars have followed the lead of the Sam Cary Bar Association. The Colorado Hispanic Bar Association was formed in 1977 with six original incorporators. Today, there are more than 500 Latinx and Hispanic American lawyers—the largest group of attorneys of color in Colorado. The association’s ongoing mission has been to serve Colorado and promote justice by advancing Hispanic interests and issues in the legal profession while seeking equal protection for the Hispanic community before the law.

The Colorado Women’s Bar Association (CWBA) was created in 1978; its first president was Natalie Ellwood, who was employed at the Billy Lewis law firm. The Hon. Zita Weinshienk was the face of the CWBA in the 1970s. She graduated from Harvard summa cum laude in 1958, but, as a Jewish woman, she could not obtain a job with the Seventeenth Street law firms in Denver. In 1964 she became the first woman on the Denver Municipal Court; she was a Denver County Court judge from 1965 to 1971. She was appointed to the Denver District Court in 1972, and in 1979 President Jimmy Carter appointed her as the first woman on the US District Court of Colorado.

The CWBA’s mission has remained the same since its inception: to promote women in the legal profession and the interests of women generally. The founders’ vision has resulted in decades of work promoting gender equality in the legal profession, historic preservation, influencing legislation related to women and children, mentoring, granting scholarships for women law students, fighting discrimination, influencing the selection of judges, and providing training and education. Judge Weinshienk had a personal impact on my own development as a lawyer as well. Serving as her deputy district attorney in Denver County Court in 1971, I was twenty-five years old when I was assigned to her courtroom in the Denver City and County Building and was the only Black state prosecutor in Colorado. At the same time, Judge Weinshienk was the only full-time woman judge, at any level of our state and federal court systems in Colorado.

The Asian American Pacific Bar Association (APABA) was formed in 1990. Its first president, co-founder Lucy Hojo Denson, was an associate in my law firm, DiManna & Jackson, and also became president of the Women’s Bar Association in 2010. APABA is a bar association in Colorado dedicated to advancing Asian-Pacific American lawyers as leaders in the profession. It advocates for issues concerning the Asian American community and spearheads programs benefiting underserved communities, promoting civil justice, and fostering professional development, mentorship, and community.

Formed in 1993, the Colorado LGBTQ+ Bar Association (CLBA) exists to provide a sense of community and belonging for LGBTQ+ individuals in the legal field in Colorado. Through programming and other initiatives, it seeks to provide opportunities for LGBTQ+ legal professionals to interact in safe settings, build meaningful professional relationships, and enhance our members’ community and professional profiles. The CLBA has more than 350 active members and sponsors. Its first president was the Hon. Mary Celeste, a retired presiding judge from the Denver County Court. Luminaries and past presidents include the Hon. Monica Marquez of the Colorado Supreme Court’s incoming Chief Justice; the Hon. Andrew McCallan; and Jon Olofson of the Denver District Court, who has served as secretary of the Sam Cary Bar Association.

The South Asian American Bar Association (SABA) was formed in 2009. Its founder and first president, my former partner Neeti Pawar, was named to the Colorado Court of Appeals and was the first Asian American woman on an appellate court in Colorado. SABA fosters growth and advocacy of justice in the South Asian legal community, serving both the interests of the minority voices it represents and the larger community it serves through programming and community outreach.

Judge Gary M. and Regina Jackson. Judge Jackson won the Hon. Wiley Daniel Lifetime award from the Center for Legal Inclusiveness in 2020.

Courtesy of Gary M. Jackson

A Place for Specialty Associations Today

Today, with no formal barriers for diverse lawyers to become members of the American Bar Association or the Colorado Bar Association, some have questioned whether this array of affinity associations is still necessary. But I believe that the need for specialty bars is strong. Today, eighteen states have no Black state supreme court justices, and, in nineteen there are no state supreme court justices who publicly identify as a person of color.

If we reflect on the criminal prosecutions of President Donald J. Trump and of Hunter Biden, the son of former President Joe Biden, those cases raise the question of how Americans are maintaining and upholding our democratic principle that all are accountable under the rule of law. We are greatly concerned about the massacres of our children at our schools, which raise questions about the interpretation of the Second Amendment of our Constitution and its viability in a world inundated with automatic weapons. Access to the voting booth has become more restricted in some states, and people of color, women, and LGBTQ+ individuals are also underrepresented in many.

The mission of specialty bars today remains the same as always: to overcome barriers and to promote equality in the judicial system so no one, regardless of race, gender, or identity, faces discrimination under the law. Specialty bars are creating great leaders who have reached beyond their associations to make an impact on the legal profession at large, and they have a voice that needs to be heard in the major legal and constitutional questions that the people of this country must answer.

The Sam Cary Bar Association in Colorado began this movement of diverse leaders and associations, and it continues to lead the way on the path to creating a more perfect union.

This article traces the history and legacy of the Sam Cary Bar Association, Colorado’s pioneering organization for Black attorneys. Written by Hon. Gary Jackson ’70, it highlights the association’s vital role in advancing racial justice, professional support, and community leadership since its founding.

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KWIP Welcomes James "Cass" Garner Home!

Erin Calkins — Wed, 30 Apr 2025 14:29:20 +0000

KWIP Welcomes James "Cass" Garner Home! Erin Calkins Wed, 04/30/2025 - 08:29

Erin Calkins

Last week, the District Court vacated the conviction of Korey Wise Innocence Project client, James “Cass” Garner, and ordered his immediate release. Remarkably, the same judge who presided over Mr. Garner’s original trial issued the order.

After 15 long years, James Garner is now free — released from Sterling Correctional Facility just after 5:00 p.m. last Wednesday. He is no longer imprisoned for a crime he did not commit.

Mr. Garner was wrongfully convicted in connection with a 2009 non-fatal shooting at a local bar — the same night he was there celebrating his birthday. He has always maintained his innocence. This life-changing outcome was made possible through the relentless work of KWIP attorneys Kathleen Lord and Jeanne Segil. Their case focused on discrediting the unreliable eyewitness identifications that had played a central role in Mr. Garner’s conviction.

In the initial months after the shooting, none of the three victims (all brothers) identified Mr. Garner in photo lineups. But nearly three years later at trial, all three pointed to him in court — a setting that was highly suggestive, especially with Mr. Garner being the only man seated at the defense table alongside two female attorneys. To strengthen their case, Kathleen and Jeanne brought in nationally recognized experts on human memory and eyewitness identification, both of whom concluded that the trial identifications were unreliable.

We’re overjoyed for Mr. Garner and his family. You can watch a short news story about Mr. Garner’s release and see a video of his first moments of freedom on KWIP’s Instagram page. There’s also a great Denver Post article.

“This is why we do this work,” Jeanne Segil said. “Today validates that what we do makes a difference for people.”

Last week, the District Court vacated the conviction of Korey Wise Innocence Project client, James “Cass” Garner, and ordered his immediate release.

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Two Decades of Dedication: Celebrating Professor Ann England's Legacy at Colorado Law

Erin Calkins — Wed, 02 Apr 2025 19:19:20 +0000

Two Decades of Dedication: Celebrating Professor Ann England's Legacy at Colorado Law Erin Calkins Wed, 04/02/2025 - 13:19

Erin Calkins

What originally inspired you to focus on criminal defense, and how did that passion evolve during your time at the law school?

When I was in law school, I worked primarily with unhoused individuals. I had plans to start a homeless legal clinic, but that didn’t work out. Instead, I clerked for a Juvenile Court judge, where I observed criminal court and was drawn to the public defenders and the work they did with clients. I applied to a public defender’s office, thinking I’d never get hired, but I did and I was fortunate to work with great mentors who taught me the ins and outs of criminal defense.

When I joined the Criminal Defense Clinic at the law school, I was excited to share my passion for helping people with my students. Teaching has been a constant source of growth for me, and over the years, the biggest lesson I’ve learned is to trust my students. Even though they’re new to the work, their passion to act on injustice is often less jaded. Each year, I relearn this lesson. I am consistently inspired by their drive to change the world.

Reflecting on your 20 years at the law school, what stands out most about your time here?

Teaching at the law school has been a rewarding experience, largely because we’re encouraged to follow our passions. I’ve had the opportunity to organize conferences on issues I care about, bring in national speakers, and create new classes with my colleagues – some that allowed me to travel the world while doing it. I’ve worked closely with national death penalty defenders and started the Korey Wise Innocence Project.

Additionally, I’ve had the privilege to practice in a variety of jurisdictions across the Front Range, from representing service members in Colorado Springs to working with municipal public defenders in Aurora. One of the most rewarding aspects has been being able to represent clients who fall through the cracks—people who can’t afford private attorneys but don’t qualify for public defender services. The freedom to follow my passions, with the law school’s support, is something I’ll always be grateful for.

You've taught countless students over the years—are there any particular stories or experiences with students that have had a lasting impact on you?

It’s always exciting to be part of a student’s first trial experience. I still remember my first trial in law school, and I know how transformative that experience can be. One moment that stands out was when we were fighting 91PORN’s camping laws. We did several jury trials representing unhoused individuals, each with a unique and impactful story. In one trial, after the verdict, every juror collected their $6 payment and gave it to the client. That powerful act made both the students and I tear up. Those are the moments I’ll never forget.

I’m endlessly inspired by the students I work with. They remind me that change is possible, and they’re going to be the ones to make it happen.

What are you most excited about in the next chapter of your career?

I’m excited to take on a larger role with the Korey Wise Innocence Project (KWIP) as the next Director. While I’ve been the faculty director since its inception, I’m eager to help KWIP transition into its next phase. We have an incredibly strong staff and board, and I’m looking forward to helping the organization grow.

I’m also excited to explore what’s next for me personally. I’m still driven by the desire to change the world, and I’m ready to find new ways to contribute to the movement for justice.

What advice would you give to your students who are about to begin their careers in criminal defense?

If you see injustice or something that seems unfair, fight it. It’s the small things that add up to the big things.

Trust your instincts—if something feels wrong, trust that, and stand up and object. You can figure out what to say after you stand up.

What will you miss most about your time here at the law school?

While I’m not leaving completely, I will miss the students. Every year, I get to work with a new group of students, and their passion for justice is always inspiring. This generation faces a lot of challenges, but I’m hopeful because they’re smart, compassionate, and driven to make a difference. I’ll miss watching them grow, but I know they’re going to change the world.

As you depart, what final message would you like to leave with the law school community?

Follow your passions.

After two decades of dedicated service, Ann England will be retiring at the end of this year. Throughout her time with Colorado Law and the Clinical Education Program, Ann has made a profound impact on nearly 500 clinic students, as well as her colleagues and community members. Her unwavering commitment to service and her invaluable contributions have been instrumental in shaping the success of both the program and those it serves.

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Essentially a Mother: A Q&A with Jennifer Hendricks exploring her groundbreaking new book

Anonymous — Thu, 13 Jul 2023 18:47:39 +0000

Essentially a Mother: A Q&A with Jennifer Hendricks exploring her groundbreaking new book  Anonymous (not verified) Thu, 07/13/2023 - 12:47

Emily Battaglia

Jennifer Hendricks, professor of law and co-director of the Juvenile and Family Law Program, recently published a new book. Essentially a Mother: A Feminist Approach to the Law of Pregnancy and Motherhood argues that the law of pregnancy and motherhood has been overrun by sexist ideology. Over the past few decades, courts have held that a woman’s pregnancy hardly counts in her claim to parent her child and have stripped women of the right to abortion, treated surrogate mothers as mere vessels, and handed biological fathers automatic rights over women and their children. Essentially a Mother argues that feminists must overthrow this skewed value system and incorporate new kinds of feminist analysis that have been ignored in the law before now. 

In this interview, Professor Hendricks sits down with Colorado Law’s Emily Battaglia to chat about her new book, the inspiration behind it, and the contribution she hopes it provides to the legal field.  

Thank you so much, Professor Hendricks, for taking time to answer my questions. I would love to know: what was the inspiration behind this book?  

JH: Thanks so much for taking the time to talk. The cases I point to as the crux of the book are a series of court cases about IVF mix-ups. These are cases in which women who had been struggling with infertility finally became pregnant through IVF at a clinic, only to learn that they’d been given the wrong embryos; they were then be forced to turn over the babies to the genetic parents (or even to would-be parents who bought someone else’s egg or sperm). These are hard and tragic situations, and I’m not saying there’s an easy or obvious way these cases should be decided. But what’s appalling to me is how easy the courts think those cases are—how quick they are to dismiss the birth mother’s claim in favor of the genetic parents. They basically turn her into an involuntary surrogate. In some cases, the judges have been quite horrible about scolding the birth mother, telling her it was all her fault for letting herself get attached to the baby that she literally made with her body.  It’s an extreme example of how courts have come to define parenthood in terms of genes, to the exclusion of the actual work that parents do to create and care for their children—including not just pregnancy and birth, but all the caretaking that parents do after birth as well. 

On the flip side, this minimizing of pregnancy—treating it as irrelevant to parenthood—helped pave the way for the supreme court’s decision in Dobbs v. Jackson Women’s Health, the case that overruled Roe v. Wade and eliminated the right to abortion. In that case, the Republicans on the supreme court told women that if they didn’t want a baby, they should just stay pregnant, give birth, and then place the baby for adoption. But we know that women who are denied abortions overwhelmingly reject adoption as an option. Why? Because an embryo is not the same as a baby, and having an abortion is not the same as giving up a child you’ve borne. Pregnancy is a lot of physical work, but it’s also very emotional for most people, so it leads to a bond even if it was forced on you in the first place. But the supreme court basically said pregnancy doesn’t matter, either physically or emotionally—it’s just an inconvenience. That’s the attitude that Essentially a Mother is trying to fight. 

What are the main points you hope readers take away from reading this book?  

JH: I hope to convince people that the law should define parenthood primarily in terms of caretaking for the child; and critically, the process of gestation and childbirth should be considered “caretaking” that establishes parental rights as soon as the child is born. Genes alone, without any caretaking, should not be enough. Fathers and others who don’t gestate their children can take care of them in other ways, and that caretaking should count more than just genes. We often romanticize pregnancy as some blissful, magical state, but we don’t give it real importance in terms of rights; while with fathers, we focus only on genes and child support. My argument is that, on the one hand, the law shouldn’t be acting like babies just appear out of nowhere when they’re born, with no connection to the person they just popped out of. On the other hand, the law also shouldn’t act like giving birth creates a mystical connection that is superior to other ways of becoming a parent. 

  More generally, I want people to see the connections between losing the right to abortion and denigrating pregnancy in other areas of the law, and in our culture. Women are suffering horribly, every day, from the loss of Roe v. Wade. As we fight to win back the right to abortion, we have the chance to do it in a much broader way that will protect everyone’s reproductive rights and freedoms. We must overthrow the entire skewed value system, currently enshrined in the law, that subordinates women, devalues pregnancy and other forms of caregiving, and denies too many people the right to choose whether to become parents and to raise their families with dignity and security. 

Can you talk about how this book builds upon your previous work? 

JH: Essentially a Mother is the culmination of work I’ve been doing on these issues for about fifteen years. The IVF mix-up cases are the tip of the iceberg in terms of how the genetic definition of parenthood has taken over family law. Defining parenthood in terms of genes is, at its root, a sexist approach to the law. It says that a pregnant woman’s nine months of gestation count for basically nothing when it comes to her claim to be the parent of the child she bears. Armed with this notion of parenthood, courts have handed biological fathers—even those who become fathers through rape—automatic rights over women and their children. 

Part of the problem is a logical error that courts make in terms of what it means for the law to be sex-neutral. To me, the core of parenthood is caretaking for a child, so parental rights should be based on a caretaking relationship. That caretaking can come in a variety of forms, including pregnancy. Many courts and scholars, however, have implicitly concluded that pregnancy and childbirth cannot be part of the definition of parenthood, because that would be unfair to men. That means that genes are all that’s left for identifying the parents at the time the child is born. But that isn’t sex-neutral; that’s discrimination against the people who get pregnant, because you’re refusing to count this huge thing that they did. 

The focus on genes also ends up hurting men who put a lot into taking care of their kids. When courts are judging fathers, the one thing they are likely to consider in addition to genes is whether a man paid child support. In one case, the supreme court denied parental rights to an unmarried father who had raised his son all by himself, because he’d never filed the paperwork to formally take financial responsibility. It’s all part of a pattern where the actual, physical labor of creating, birthing, and raising a child just doesn’t count for much in the law.  

With this work, what perspective do you hope to add to the current field of research in this area?   

JH: One of the things I talk about in the book is that a lot of feminist legal scholars have been surprisingly supportive of legal rules that minimize the importance of pregnancy. I think that’s because, abortion aside, a huge amount of feminist legal work is focused on employment law and constitutional law. In those fields, most of the fights in the past have been about women trying to win the same privileges as men by showing they are just as good as men at being a lawyer or a soldier or whatever. But family law is one of the most dynamic and exciting fields in legal scholarship right now, and it also has the most experience grappling with issues about gender and relationships. Essentially a Mother challenges constitutional lawyers to confront and incorporate new kinds of feminist analysis that have been ignored in the law before now. 

The book is available for order at your local bookstore, from online booksellers, and from the University of California Press.

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