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Children & the Law
Stetson University School of Law
Bohl, Joan Catherine

Children and the Law
WEEK 1 (3-47)
·         Introduction
o   There is no way for adults to make sure that children will receive or accept a particular message because children contribute to what they experience
o   The older and younger generations seem in fact inextricable intertwined in a reciprocal relationship in which the unique experience of each affects the other
o   Law outlines a framework for the distribution of decisional power among the child, the family, and various agencies of the state
o   Because of legally imposed limitations on the child’s power to decide, some reformers suggest that a children’s liberation movement should follow the trail blazed by the civil rights and women’s movements
o   The development of the interaction between the state and the family is rooted in common law
·         John E. Coons, Law and the Sovereigns of Childhood
o   Common law and statutory structures that affect childhood come in three styles: rules, minimums, and sovereignties
§ Rules
·         Specific standards of conduct taking a positive or negative form
·         E.g. children under 15 can’t drive and parents are limited in their choice of punishments
§ Minimums
·         Legal devices that assure the level of goods and services necessary to the child’s protection, control, and preparation for adult life will not fall below some floor
·         E.g. government aid and foster care
·         Often indistinguishable from rules (eg 180 days of school)
§ Sovereignties
·         Legal recognition in someone or some institution of a residual authority and discretion to protect, control, and prepare the child.
·         Law ordains the petty sovereignty of childhood
·         Is a fetus a child?
o   Roe v. Wade   410 US 113 (1973)
§ TX articles making it a crime to “procure an abortion”
§ Roe seeking declaratory judgment of unconstitutionality and an injunction
§ Claims of vagueness and an abridgement of personal privacy as protected by the 1st, 4th, 5th, 9th, and 14th Amendments
§ Appellant’s attack on the statute is that TX improperly invaded her right to choose to terminate pregnancy
§ Liberty as interpreted by the Due Process Clause and/or privacy said to be protected by Bill of Rights
§ Three justifications for the enactment of criminal abortion laws:
·         Victorian social concern to discourage illicit sexual conduct
·         Danger of the medical procedure (legislative history points to this justification most often)
·         State’s interest in protecting prenatal life
§ Constitution does not explicitly mention any right of privacy
§ However, the Court has recognized that a right of personal privacy, or a guarantee of certain areas or zones of privacy, does exist
§ Blackmun notes that the Court recognizes the right of privacy as derived from the 14th Amendment’s concept of personal liberty and restrictions upon state action
§ The Court does not agree that the right to abortion is absolute
·         “At some point during a pregnancy, these respective interests (health, medical standards, and protecting potential life) become sufficiently compelling to sustain regulation of the factors that govern the abortion decision”
·         “We therefore conclude that the right of personal privacy includes the abortion decision, but that this right is not unqualified and must be considered against important state interests in regulation”
§ “The word ‘person’ as used in the 14th Amendment does not include the unborn”
§ “With respect to the State’s important and legitimate interest in the health of the mother, the compelling point, in the light if present medical knowledge, is at approximately the end of the first trimester”
§ “With respect to the State’s important and legitimate interest in potential life, the compelling point is at viability”
§ The statute makes no distinction between abortions performed early in pregnancy and those performed later, and it limits to a single reason, “saving” the mother’s life, the legal justification for the procedure. The statute, therefore, cannot survive the constitutional attack upon it here.
§ Dissenters’ Views in Roe
·         Rehnquist and White criticized the Court for usurping the function of the legislature
o   Gonzalez v. Carhart 550 US 124 (2007)
§ The Partial-Birth Abortion Ban Act of 2003 is considered
§ 85-90% of 1.3 million abortions per year take place in the first 3 months
§ About 30 states had adopted bans prohibiting PBAs
§ Two justifications for the post-Steinberg bans:
·         Moral, medical, and ethical consensus that the practice is gruesome, inhumane, and never medically necessary
·         Physicians fatal act must occur after delivery of the entire fetal head outside of the woman’s body
§ Casey rejected both Roe’s rigid trimester framework and the interpretation of Roe that considered all previability regulations of abortions unwarranted.
§ A State may not impose upon the right of previability an undue burden
§ The government may use its voice and its regulatory authority to show its profound respect for the life within the woman
§ The Act does not pose an undue burden
§ Dissent by Ginsburg, Stevens, Souter, and Breyer
·         The decision refuses to take Casey and Stenberg seriously
·         It applauds federal intervention to ban nationwide a procedure found necessary and proper by the ACOG
o   Notes and Questions: Roe and Gonalez
§ Consider the standards of review in both cases
·         Legitimate state interest vs. compelling state interest
§ Consider the moral vs. legal implication of “viability”
§ Gonzalez
·         “The Act does apply both pre-viability and post-viability because, by common understanding and scientific terminology, a fetus is a living organism while within the womb, whether or not it is viable outside the womb”
§ Viability
·         Roe – Approximately 28 weeks
·         Casey – Approximately 23-24 weeks
·         Currently – Approximately 23 weeks
§ Fetus rights
·         Roe – “unborn have never been recognized by the law as persons in the whole sense”
·         Since Roe, federal government and several states have recognized the unborn as “persons” in various legislation
o   E.g when fetus’ are victims of violence/wrongful death and for medical insurance purposes via SCHIP
§  Abortion regulation
·         Public funding for abortion is generally not available
·         “Refusal clauses” protect institutional and individual health care providers that wish to refuse to provide abortion services
·         Federal and state laws also regulate the provision of information about abortion by healthcare providers (gag rule)
·         Informed consent laws
§ Undue Burden Standard
·         Casey announced the adoption of the Undue Burden standard in place of Roe’s strict scrutiny test
·         After Casey, only those regulations that impose an undue burden on the woman’s right to an abortion will be invalidated
·         E.g. did the pre-abortion counseling script and a 24-hr waiting period constitute an undue burden in Casey?
§ Remember the maternal health exception (See page 27)
§ Consider the tension between the moral overtones in Casey vs. Lawrence v. Texas
§ The Gonzalez majority justifies abortion restrictions, in part, as a means of protecting women from decisions they do not understand and might later come to regret. Does this signify the Court’s analysis that protecting a woman from regret is graver than protecting them from other health risks (remember the conflicting data of the health risks associated)
o   Legal paternalism: Forcing Medical Treatment on Pregnant Women
§ The Court in Roe, Casey, and Gonzalez recognized that the state has an interest in protecting potential life during pregnancy.
§ Therefore, should the state be able to compel the pregnant women to take action necessary to protect the health, present and future, of the unborn child? Even before viability?
§ Jefferson v. Griffin Spalding County Hospital Authority 1981
·         The hospital petitioned the Court for an order authorizing it to perform a C-section and any necessary blood transfusions upon the ∆
·         Fetus has nearly 0% chance of survival and mother 50% chance of survival given vaginal birth vs. nearly 100% chance for both via C-section
·         Based on religious beliefs, ∆ has refused C-section and blood
·         Issue as to whether the unborn child has any legal right to the protection of the Court
·         “Because the life of the ∆ and the life of the unborn child are, at the moment, inseparable, the Court deems it necessary to give the child an opportunity to live”
·         Temporary custody of the unborn child was granted to the State of Georgia
·         “The Court finds that the intrusion involved into the life of the ∆ is outweighed by the duty of the State to protect a living, unborn human being from meeting his or her death before being given the opportunity to live”
·         “The free exercise of religion is, of course, one of our most precious freedoms…The Courts have, however, drawn a distinction between the free exercise of religious belief against any infringement and religious practices that are inimical or detrimental to public health or welfare which are not…”
·         In the present case, there is no less burdensome alternative
·         Benefit versus risk test used in Jefferson was overridden for the most part by Baby Boy Doe and In re Fetus Brown
·         The juvenile court does not have any jurisdiction or claim of right to protect the fetus***
·         The trend is shifting away from evaluating the danger of the fetus with respect to the benefit of the mother and vice versa
o   Questions on intervening during pregnancy
§ Without any need for surgical intervention, Mrs. Jefferson delivered a healthy baby a few days after the GA SC decision
§ Ordinarily a state cannot compel a competent adult to accept medical treatment (legal paternalism)
§ Consider the problem on page 35
§ By what standard should a court consider and balance the risks and benefits for the mother and child in deciding whether to intervene?
·         Is there a constitutionally mandated balancing test between the life of the woman and the life of the fetus?
§ Should a state ever be able to impose criminal sanctions on a mother if her child does or is severely harmed because of the mother’s failure to protect the “child” during the pregnancy? (minority approach imposes liability on pregnant substance abusers e.g.)
o   Spousal Notification
§ Spousal notification is not about the allocation of power between the State and the woman. Rather, what about the interests of the father?
§ If consent is not required, should the woman at least have to notify the father of the plan to abort?
§ Spousal notification was invalidated by the SC
o   P

m the tenets and the practices of their faith
·         The child’s right to exercise freedom of religion
§ “The parents conflict with the state over control of the child is serious enough when only secular matters are concerned”
§ Basic in a democracy stands the interest of society to protect the welfare of children and the state’s assertion of authority to that end
§ It is the interest of the youth himself, and of the whole community, that children be both safeguarded from abuses and given the opportunity for growth
§ Prince cites Meyer and Pierce as evidencing the rights of children to exercise and the rights of parents to give religious training and practice
§ “But the family itself is not beyond regulation in the public interest, as against a claim of religious liberty”
§ “Acting to guard the general interest in youth’s well-being, the state as parents patriae may restrict the parent’s control by requiring school attendance, regulating child labor, and other ways.” ***
§ The state has a wide range of power for limiting parental freedom and authority affecting the child’s welfare; and that this includes, to some extent, matters of conscience and religious conviction ***
·         “But it is said, the state cannot do so here”
§ When state action impinges upon a claimed religious freedom, it must fail unless shown to be necessary for or conducive to the child’s protection against some clear and present danger, and it is added, there was no such showing here
§ A democratic society rests upon the healthy, well-rounded growth of young people into full maturity as citizens. It may secure this against impeding restraints and dangers within:
·         The crippling effects of child employment and the possible harms arising from other activities subject to all diverse influences of the street
·         The public nature of the activity is the key
§ “We think that with reference to the public proclaiming of religion, upon the streets and in other similar public places, the power of the state to control the conduct of children reaches beyond the scope of its authority over adults, as is true in the case of other freedoms, and the rightful boundary of its power has not been crossed in this case.”
o   Questions on Prince
§ The Court notes that a child labor prohibition such as the one challenged would be unconstitutional if applied to adult Jehovah’s Witnesses
§ Consider whether the Court in Prince defines the other limits of the state’s power to constrict parental freedom because of the state’s interest in protecting the child.***
o   Wisconsin v. Yoder   1972
§ Respondents are members of the Amish religion
§ WI had a compulsory school attendance law requiring parents to send their children to school until reaching the age of 16
§ Respondents allege a violation of the 1st and 14th Amendments
§ Respondents presented expert testimony showing that high school could be antithetical to the Amish religion AND that the students are not harmed by ending public schooling at the completion of the 8th grade
§ The Amish view secondary education as impermissible exposure of their children to worldly influence in conflict with their beliefs
§ The enforcement of the State’s requirement of compulsory formal education after the eighth grade would gravely endanger if not destroy the free exercise of respondents’ religious beliefs
§ The State contends that the Act still satisfies strict scrutiny for the following two reasons:
·         Some degree of education is necessary to prepare citizens to participate effectively in the political system
·         Education prepares individuals to be self-reliant and self-sufficient
§ The State attacks the fostering of “ignorance” – which the State may protect against
§ The State also contends that it is necessary for those children that decide to leave the Amish community
§ The Court notes that compulsory education laws protect the following:
·         Educational opportunities for children
·         Undesirable consequences of unhealthful child labor displacing working adults
§ “There is no intimation that the Amish employment of their children on family farms is in any way deleterious to their health or that Amish children on the family farm does not present the undesirable economic aspects of eliminating jobs which might otherwise be held by adults”