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Sebastian's Point is a weekly column written by one of our members regarding timely events or analysis of relevant ideas, which impact the Culture of Life. All regular members are invited to submit a column for publication at Columns should be between 800 to 1300 words and comply with the high standards expected in academic writing, including proper citations of authority or assertions referred to in your column. Please see, "Submission Requirements" on our Home Page for more details.

Parenting by Edict: When the State Knows Best

Ana Brennan, J.D.      10 May 2018

I once had the misfortune of needing medical attention three days before my 18th birthday, which required a trip to the hospital. Both parents were unavailable. My condition was such that I was admitted rather quickly -- before the hospital noticed my age. Unfortunately, they discovered my age before I received much needed medical care. I was told that a parent had to be physically present to sign the papers or I could come back in three days, so I left.


I was livid. It seemed so unreasonable, but whether I was a minor by three years or three days I was still legally a minor and there was no room for discretion on the hospital’s part. I understood their position, they were just following the law. Unfortunately, I wasn’t given the option of going before a judge to prove I was mature enough to consent to an x-ray to determine the extent of my injury. No, the doctor told me to take Advil and showed me the door.[i]  


Of course, all the while I couldn’t help but think about the fact that I could walk into Planned Parenthood and have an abortion without the same legal restrictions. As a minor, I was harmed by the blind application of parental consent laws, while countless teens are harmed by parental involvement laws not being enforced in the context of abortion. Something had gone awry. I found it difficult to believe that parental rights were being properly implemented.


The purpose of parental consent, in any context, is to protect the minor and allow parents to exercise their right to raise their children. It is generally acknowledged that minors do not have the same legal rights as adults, for example, minors cannot vote, own property, consent to (most) medical treatment, enter into contracts and so on. The law recognizes the right and responsibility of parents to raise their children. Under the law, minors lack the skills needed to make adult decisions; the presumption under the law is that parents have the best interest of their children at heart unless proven otherwise.


The foundation of parental rights in the United States is rooted in English common law, tracing back to the Magna Carta. "[T]he most universal relation in nature" was deemed to be "that between parent and child."[ii] As the laws continued to change in England, the antiquated idea of parens patriae, which gave the King virtually unlimited control over minors, was replaced by the rule of law which recognized the right of parents to control their child’s upbringing. The Founding Fathers of the United States incorporated the principles of English common law into the Constitution. Subsequent Supreme Court decisions regarding parental rights would be decided within this framework.


The landmark Supreme Court decisions upholding parental rights were in regard to education[iii] and set the precedent in the courts that, “The child is not the mere creature of the state; those who nurture him and direct his destiny have the right and the high duty, to recognize and prepare him for additional obligations.”[iv]  


In Wisconsin v. Yoder (406 U.S. 205, 233 (1972)) Chief Justice Burger continued to underscore the importance of parental rights,


This case involves the fundamental interest of parents. . . The history and culture of Western civilization reflect a strong tradition of parental concern for the nurture and upbringing of their children. This primary role of the parents in the upbringing of their children is now established beyond debate as an enduring tradition.   


The Court not only recognized parental rights as “a strong tradition” of Western Civilization but also acknowledged the rights of parents as fundamental. This is significant because not all rights are created equal. If a right is fundamental, the state must have a compelling interest to justify infringing, by the least restrictive means on a liberty.


Again in Paris Adult Theater v. Slaton,(413 US 49 (1973)) the Supreme Court reaffirmed parental rights as fundamental. 


In Parham v. J.R., (442 US 584, 602-606 (1979)) the Court explicitly upheld the legal presumption that parents act in the best interest of their children.


Our jurisprudence historically has reflected Western civilization concepts of the family as a unit with broad parental authority over minor children. . . The law’s concept of the family rests on a presumption that parents possess what a child lacks in maturity, experience, and capacity for judgment required for making life’s difficult decisions. More important, historically it has been recognized that natural bonds of affection lead parents to act in the best interests of their children. 1 W. Blackstone, Commentaries 447; 2 J. Kent, Commentaries on American Law 190.


The Court is not naïve. It realizes that some parents do not have the best interest of their child at heart to the point parental rights must be terminated to protect the child. But even in cases of termination, the Court clearly mandates, “When the state moves to destroy weakened familial bonds, it must provide the parents with fundamentally fair procedures.” Santosky v. Kramer, (455 US 745 (1982)).


In these cases, the Supreme Court is merely stating the obvious. The family exists outside of, or before the state. If the United States ceased to be, families would not. It is the family that has lent structure and stability to the world. Realizing this, some governments realize that fostering strong families ultimately strengthens communities as a whole. To interfere with the parent/child relationship is to interfere with a stabilizing structure that predates the state.


In the context of education, viewing obscene material, and receiving mental health care the Court consistently applies the principle that parents, not the state, have the right to make decisions for their children because it is legally presumed that parents act in the best interest of their child; and the state must provide a parent due process before denying their fundamental rights. On the surface, it seems that this standard would apply to all familial situations. Of course, abortion is a special situation with its own jurisprudence where deviation from legal standards is the norm.


Removing parental rights has defined legalized abortion from the beginning; the unfortunate tone being set my Bellotti v. Baird I and II. These cases involved a Massachusetts parental consent law where the Supreme Court decided that it was unconstitutional to allow a third party (a parent) to have veto power over their daughters “right” to have an abortion. Still feeling paternalistic, the Court realized that a minor should not be left to her own devices, hence the judicial bypass.


If a judge, who has never met the minor before, determines that the minor is mature enough to decide to have an abortion, or even if not mature the judge determines that the abortion would be in the best interest of the minor, the abortion may proceed unhindered by parental involvement. Courts are not acting in loco parentis, they are undoing hundreds of years of jurisprudence and acting parens patriae. Essentially, parental rights are being temporarily terminated without any due process, undermining families as a whole.


The previous recognition of parental rights as fundamental seems to have evaporated in the context of abortion.  The Court states the "need to preserve the constitutional right and the unique nature of the abortion decision . . . require a State to act with particular sensitivity when it legislates to foster parental involvement.” (Bellotti at 643-44). Because of the “unique nature” of abortion, a whole different set of rules apply. Rules that are not rooted in the tradition and culture of Western Civilization; rules that undermine the family and render parental rights jurisprudence irrelevant.


In typical Supreme Court fashion, the law is contorted to achieve the desired conclusion. Dismissing the fundamental rights of parents isn’t that surprising considering we live in a country where the courts have contorted all logic and reason to deny the humanity of the unborn.


[i] It is true that a minor can receive emergency medical treatment without parental consent, but this usually involves life and death situations.

[ii] 1 W. Blackstone, Commentaries on the Laws of England  446.

[iii] Meyer v. Nebraska, 262 U.S. 390 (1923); Pierce v. Society of Sisters, 268 U.S. 510 (1925).

[iv] Pierce v. Society of Sisters, 268 U.S. 510 at 535 (1925).




Ana Brennan, J.D., is Vice-President of the Society of St. Sebastian and Senior Editor of the Journal of Bioethics in Law & Culture Quarterly

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