The law cannot function properly without an intense grounding in empirical reality. Through dozens of books, scholarly articles, speeches, opinion pieces, and legislative testimonies, Professor Robin Fretwell Wilson keeps returning to this bedrock principle.
Professor Wilson’s scholarship focuses on health law and family law. She has touched on a wide variety of topics over the years, including: children at risk of sexual abuse, informed consent for medical training procedures, nano-sized cosmetics and sunscreens, and most recently, the need for broad religious exceptions to same-sex marriage laws, and the problems caused by rules allowing religious norms to govern marriage and divorce.
Her initial academic efforts were focused on the impact of incest and abuse and how to best help those at risk. In The Cradle of Abuse: Evaluating the Danger Posed by a Sexually Predatory Parent to a Victim’s Siblings, (51 Emory Law Journal 241, 2002), Professor Wilson delved deeply into statistics to show that it is better to remove the perpetrator of incest from a home rather than the victim, because the victim’s siblings have high risk of being victimized. This insight is intuitive, but without the empirical data, judges, too often, were leaving prospective victims with sexual predators.
In Nanotechnology: The Challenge of Regulating Known Unknowns, (34 Journal of Law, Medicine, & Ethics 704, 2006), Professor Wilson turned her analytical lens on the growing field of nanotechnology and cosmetics. Traditionally, the FDA has not regulated this market because the skin was believed to be an impermeable barrier to harmful substances contained in makeup and skincare products. An exploration of the science behind the new generation of cosmetics demonstrated that nanotech compounds penetrated the epidermis and lower layers of the skin, thus introducing foreign bodies directly into a user’s system. In April 2012 in response to the work of Professor Wilson and other scholars, the FDA issued draft guidance addressing these issues for the first time.
Autonomy Suspended: Using Female Patients to Teach Intimate Exams Without Their Knowledge or Consent, (8 Journal of Health Care Law & Policy 240, 2005) generated a large and still growing legislative response to an often common feature of medical students’ education. The conventional method for teaching students how to conduct a gynecological exam was to practice on women under anesthesia. These women were commonly unaware of this practice and rarely had given specific consent. The defenders of this teaching tool argue this hands-on experience is critical for new doctors, and requesting consent would cause a drastic decrease in these opportunities. Through a close look at surveys and statistics of consent given in similar contexts, Professor Wilson showed that in fact most people would give consent if asked. Today five states have enacted statutes to require informed consent from patients before performing pelvic examinations for medical or training purposes.
In Virginia, Professor Wilson, together with a team of Washington and Lee students provided legislative testimony resulting in Virginia’s law requiring specific consent before performing intimate exams for teaching purposes. Most recently Hawaii also enacted a measure after hearing testimony from both Professor Wilson and recent W&L graduate Anthony Kreis.
Professor Wilson’s latest work addresses the intersection of religion and family law, in two different contexts. As same-sex marriage is legalized in a growing number of jurisdictions, a common concern of religious objectors who believe in traditional heterosexual marriage is they will be forced to facilitate marriages in violation of their religious belief — or face severe civil penalties. While every proposed same-sex marriage bill has contained an exception for clergy, Professor Wilson, together with two groups of religious liberty scholars around the country, has argued for broader exemptions that include religiously affiliated non-profit institutions, small businesses and even government employees such as county clerks.
In her view, the dueling principles of equality and freedom of religious beliefs should not be forced to clash unnecessarily. In most cases, the data suggests that same-sex couples’ right to marry can be readily accommodated by, for example, county clerks who do not object to gay marriage—and when a willing provider is not immediately available, a carefully tailored exemption can and should preference marriage equality over religious liberty, given the state’s monopoly power over marriage. Using studies and surveys she illuminates the plight of those whose livelihoods may be lost due to shifting mores of the law and argues that exemptions qualified by hardship to same-sex couples can affirm two values worthy of respect: religious liberty and marriage equality. (The Calculus of Accommodation: Contraception, Abortion, Same-Sex Marriage, and other Clashes Between Religion and the State, forthcoming, 2012)
On the other hand, Professor Wilson has also explored the problems that may occur when religious groups are allowed to apply religious precepts instead of civil family law to questions of inheritance or divorce in Western nations. These exceptions to the general law are permitted by countries out of a desire to protect the values and unique culture of the group. In practice however, this deference to religious norms about marriages, divorces, and child custody tends to disadvantage the women and children, compared to the outcomes that would result from a judgment using civil law. Professor Wilson has attempted to shed much needed empirical light on these widely divergent outcomes as a way to evaluate the wisdom of such schemes of deference
What is next for this prolific and deeply engaged scholar? “I tend to choose my topics based on what I am interested in and where the law can be improved with a push,” she says. Wherever her interests lead, a keen appreciation for the facts on the ground will continue to light the way.
