Posted by
Andrews on Friday, June 06, 2008 11:34:33 AM
In my
previous essay I asked some difficult questions about abortion, this time I plan to ask a much more simple question. Under what conceivable logic can people propose abortion without parental notification?
Legally, children have very few rights, and in the area of medicine those rights are even fewer. Children cannot contract, except under very specific circumstances. They cannot consent to sexual intercourse. They cannot choose whether or not they should undergo a medical procedure.
That last rule exists for several very good reasons. First,t he general assumption underlying all legal disabilities applied to minors, the presumption that they are not competent yet to make such decisions. But in the case of medical procedures it is even more important as, should something go wrong, it will be the responsibility of the parent to provide for the care of that child. So should they be disabled in a surgical mishap, it will be the parents who will be obligated to make arrangements for their care afterwards. That is why even for simple things such as ear piercings we have traditionally required parental consent for minors, excepting thsoe who have been emancipated. And in the case of parents who refuse necessary treatment, the law does allow for the court to overrule parental choices, should it decide that the child's interests would be best served by a different decision.
All of which makes sense and has served us well since the founding of the common law. For centuries there has been no need to really change this law. The social reforming spirit of the twentieth century did layer all kinds of bureaucratic meddling on top of the law, adding childrens' services, adult protective services, and a host of other professional do gooders to the mix. But, basically, the original common law rules still provides a sound foundation for handling medical decisions for children.
Until 1973 and one very bad ruling which trashed so much of our law. Taking an old concept from Blackstone and blowing it up to cover situations that jurist never imagined,
Roe v Wade created the concept of "reproductive rights" out of whole cloth and read it into the emanations of the penumbras of the Constitution*.
With the birth of the concept of "reproductive rights" we suddenly had a conflict with this ancient precedent. Before a child's rights were very limited and their decisions largely controlled by their parents. However, the courts rightly saw that reproductive rights had to be paramount in all cases. if they admitted that the right to privacy could be limited by other rights, then they could not argue for an absolute right to abortion**. So, even in the case of children, they had to demand that reproductive rights were absolute and paramount.
Which brings us to the strange position of many pro-choice proponents. They argue that, while children have to have parental consent to have their ears pierced or to get a tattoo, they should be able to have abortions without even notifying their parents.
Again, I cannot make sense of this. I understand the reasoning on the other side, but legally it is nonsense.
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* I will confess that my position on abortion has changed over the years, but strangely my position on
Roe has not. Whatever I believed at the time, I always viewed it as bad law. It simply does not fit with the way our Constitutional law works, and it creates an imaginary right which fits very poorly with the existing rights. Had the court been determined to find a right to abortion, as it appears they were, it would have been better had they done so using an existing right, rather than creating this new right out of thin air.
** If the right to an abortion can be limited by other legal concepts, such as the traditional disability of children, then it opens the door to states creating abortion restricting legislation, which they could then justify on the basis of a compelling state interest. Only by arguing that reproductive rights are absolute is this pitfall avoided.