1989 issue 7 - killing the family - counsel of chalcedon
TRANSCRIPT
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8/12/2019 1989 Issue 7 - Killing the Family - Counsel of Chalcedon
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I
n the early history
of
this country,
the courts, especially the United
States Supreme Court, upheld
traditional family autonomy.
These early cases rested upon a Chris
tian understanding of the marriage rela
tionship. The United States Supreme
Court's 1888 opinion in Maynard v.
i l l l is illustrative
of
this long line
of
precedent:
[ ]hilst marriage is often termed by
text writers
and
in decisions of courts a
civil contract .
.
it is something more
than a mere contract. The consent of he
parties is of course essential to its
existence, but when the contract to
marry is executed
by
the marriage, a
relation between the parties is created
which they cannot change. Other con
tracts may be modified, restricted, or en
larged, or entirely released upon the con
sent
of the parties. Not so with mar
riage. The relation once formed, the law
steps in and holds the parties to various
obligations
and
liabilities. It is an insti
tution, the maintenance
of
which in its
purity the public is deeply interested,
for it is the foundation of the family
and
of
society, without which there
would be neither civilization nor pro
gress.2
Given this view
of
marriage
as
a
''status or institution and not merely
as a contract, the various functions
assigned to the family were protected
from state encroachment. Thus, the
Court from Meyer
v. Nebrasfm3 to
Moore v. East Clevelantfl could lay
down rules of law that favored parental
control over their children and that
favored familial choices in living ar
rangements.
Even the question of the proper use
of contraceptives was considered by the
Supreme Court in Griswold v. Con
necticuP to belong to the family on
the assumption that
the_
appropirate
authority over the intimate sexual life
of
the husband and wife
was
lodged in
the family unit, not the state. How
ever, beginning in the early 1970's, the
Supreme Court launched a new line of
cases that marked a sharp break from
the past.
TH RIGHT TO CHOOSE
n
1972 in Eisenstadt
v.
Baird
6,
the
Supreme Court extended the right to
determine the appropriate use of contra
ceptives to unmarried persons. The sig
nificance
of
this decision to the Court's
later decisions that have actively fos
tered the breakdown
of
the family unit
has been recognized by at least one
legal scholar:
The
rationale in Griswold was at
least logical and historical, even
if
unar
ticulated in the Constitution; and,
historically the Court had upheld the
marital institution in glowing terms
which followed the traditional Christia n
explanation. But Eisenstadt com
pletely failed the traditional test since
no such right had ever been found in the
rooted traditions
of
he American peo
ple
..Eisenstadt ..represenis a radical
departure with little or
no
constitutional
foundation or development either in
American legal history or in case
law
The logic
of
Eisenstadt flows inexora
bly into the abortion decision
of
Roe v.
Wade B The right to abortion was
founded on their right to privacy which
was said to be located in the ninth or
fourteenth amendments, writes attor
ney Peter Riga. But more important
ly, no distinction was made between the
unmarried plaintiff, Jane Roe, and the
married plaintiff,
Mary Doe. 9
Underlying these decisions
1
as defined
through the right to privacy, was the
idea
t..'lat
people
have a right to choose
The Counsel of Chalcedon Aug.-Sept. 1989 page
4
certain lifestyles or modes of expression
even in the context of the family.
Thus, the choice of the individual
takes preference even
if
exercised within
the family and even if it is detrimental
to the stability of the traditional family
unit.
RO
V. WADE
In 1973 in Roe
v.
Wade, the Su
preme Court elevated, in the name of a
so-called constitutional right of pri
vacy, a woman's right to mental
health above the life of
an
unborn
child in her womb. In Roe, Justice
Harry Black:mun admitted that the Con
stitution does not explicitly mention
any right to privacy.'rlD Nevertheless,
Black:mun
went on to create
the
right
in terms
of
abortion (supposedly rely
ing on earlier Supreme Court prece
dent).ll
In at least the first six months of
pregnancy, the woman was granted a
constitutional right to abortion if upon
consultation with her physician it was
decided that her health would be jeo
pardized by having the baby. Blackmun
wrote:
Maternity, or additional offspring,
may force upon
the
woman a distress
ful
life and future.
Psycho_logical
harm
may
be imminent. Mental and
physical health may be taxed by
child care. There is also the distress,for
all concerned, associated with the un-
wanted child, and there is the problem
ofbringing a child into a family already
unable, psychologically and other
wise to care for it. In other cases, as
in this one, the additional difficulties
and continuing stigma of unwed
motherhood
may
be involved. All these
are factors the woman and her respons
ible physician necessarily will consider
in consultation.J2
The life of the unborn child
was thus
subordinated to the woman's conven
ience--that is, stress
and
psychological
or mental stress is
enough
to
justify
killing children. The Court, in essence,
approved abortion-on-demand.13
KILLING ClllLDREN
In Planned Parenthood v. Danforth 14
the
Supreme Court ruled unconstitution-
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al
a Missouri statute that required the
husband's consent before a married
woman's decision
to
abort a child. The
statute obviously reinforced the tradi-
tional partriachal design of the family.
However, the Court ruled that the state
could not constitutionally reinforce that
family structure to
the
detriment
of
the
wife s right of choice.
In a remarkable argument, in which
Justice Blackmun disregards both the
family's existence independent of the
power
of
the state and the husband's in-
terest in the unborn child as a party in
the
impregnation process, the Court dis-
missed the Missouri statute
as
follows:
Clearly, since the state cannot regu-
late or proscribe abortion during the
first stage ... the State cannot delegate
authority to any particular person, even
the
spouse, to prevent abortion during
that same period ...
The obvious fact is that when the
wife and the husband disagree on
the
decision, the view of only one of the
two
marriage partners can prevail. Since
it is the woman who physically bears
the
child and who is the more directly
and immediately affected by the preg-
nancy, as between the two, the balance
weighs in her favor.JS
Blackmun argued that the Missouri
consent law did
not foster marital
rela-
tionships. He said:
[W]e recognize that the decision to
undergo or forgo an aboriton may have
profound effects on the future of any
marriage, effects that are both
physical nd mental, and possibly
deleterious. Notwithstanding these
factors, we cannot hold that the State
has the constitutional authority to give
the spouse unilaterally the ability to
prohibit the wife from terminating her
pregnancy, when the State itself lacks
the right.l6
The other members of the family,
then, are subordinated to the conven-
ience of the pregnant woman.
In the Danforth case, the Court also
. ruled unconstitutional a Missouri sta-
. tute which required written consent of a
parent or guardian
of an
unmarried
wo-
man under the age of eighteen to obtain
an
abortion during the first trimester of
pregnancy. Again the Court endorsed a
constitutional principle diametrically op-
posed to traditional family autonomy.
The United States District Court had
previously upheld the parental consent
provision. The district court found a
compelling basis ... in the State's in-
terest 'in safeguarding the authority of
the family relationship. ' 17
Justice Blackmun disagreed with this
proposition and noted that such a con-
sent provision, in his opinion, did not
safeguard the family unit or enhance
parental authority.l8 He stated: Any
independent interest the parent may
have in the termination
of
the minor
daughter's pregnancy is no more
belong to a higher estate than men has
waned in recent years. George Gilder
writes: They must relinquish their
sexual superiority, psychologically dis-
connect their wombs, and adopt the
short circuited copulatory sexuality of
males. 20
Women, once the center of
the
home,
are now, in many instances, the recep-
tacles
of
male sexual frustrations. And
now, if pregnancy does result from sex-
ual union, the abortion avenue is open.
Essentially, abortion legalized murder
in
the
life of the family at the choice of
the mother.
Indeed, the cradle of life
has become the cradle of death.
n
terms
of
abortion, then, the Court has
fostered the autonomous wife and the
autonomous child. Not only is this detrimen-
tal to the traditional family structure,
but
it is
also injurious to women and children.
weighty than the right of privacy of the
competent minor mature enough to
have become pregnant. 19 The interest
of the parents to control the upbringing
of their minor daughter was thus sub-
ordinated to their daughter's conven-
ience.
In terms of abortion, then, the Court
has fostered the autonomous wife and
the autonomous child. Not only is this
detrimental to the traditional family
structure, but it is also injurious to wo-
men and children.
Our atomistic culture is devouring
women and children. Children are abort-
ed, and
in
many instances if a child sur-
vives the abortion, he or she is left
to
die on the operating table. f the child
survives into childhood, the chances
that the child will be physically abused
are high.
The total effects
of
the women's
liberation movement have yet to be
fully evaluated. One certain effect has
been the redefining of the woman's role
in the home as well
as
her relationship
to
her husband and her children (if any)
Instead of being the cradle of future
generations, modem women, in large
part, have been reduced to sexual parity
with men. The concept that women
As the traditional family fades, the
vacuum it leaves is being filled with a
bewildering array
of family forms:
homosexual marriages, communes,
groups
of
elderly people banding to-
gether to share expenses (and some-
times
sex},
tribal grouping among cer-
tain ethnic minorities, and many other
forms coexist as never before. 21
In
fact, recent statistics indicate that one-
parent families now account for 26
percent
of
all families with chil-
dren.22
The implications of the abortion deci-
sions are ominous for the family in
other areas. Already the Court has ex-
tended the principle
of
child autonomy
beyond abortion.
For example, in
Carey
v
Population
Services International,23 the Court held
that a state statute which restricts the
sale
of
contraceptives to those over six-
teen years of age, and then only by a
licensed pharmacist, is contrary to the
right of privacy of minors. t is there-
fore unconstitutional.
In response to this newly declared
right, one federal court of appeals has
held that minors possess a right
of
privacy which includes the right to
obtain contraceptives without having
to
The Counsel of Chalcedon Aug.-Sept. 1989 page
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consult their parents. Although ac
ktlowledging that parents are interested
in contraceptives being distributed to
their children, the court held there is no
duty on the part
of
a family planning
center to notify the parents concerned.24
In H.
L.
v.
Matheson,25
the Su
preme Court did uphold the constitution
ality of a Utah statute which requires a
p i L y s i c i a n ~ t o
.
l n o t i f J , ~ i f ~ p o s s i b l e ' ' - t h e
parents
of
a dependent, unmarried minor
girl prior to performing an abortion.
This decision appears to reduce parents
to the level of state-employed con
sultants.
CREATING
THE
CONFLICT
The parallel between the public
school cases--such as Tinker and Goss
-and the
Danforth
case, wherein the
Supreme Court made it clear that the
state has no constitutional authority to
grant the parents' veto authority over
their minor daughter's decision to ob
tain an abortion, is a remarkable one. In
Danforth, the Court declared that [c]on
stitutional rights do not mature and
come into being magically only when
one attains the state-defining age
of
majority. Minors, as well
as.
adults, are
protected by the Constitution and pos
sess constitutional rights. 26
However, the Danforth case,
i
carried
to its logical conclusion
of
extending
fundamental rights to children, carries
serious implications. As professor
Bruce Hafen writes:
[T]he uncritical application
of
egali
tarian theory to children places them
and their parents on the same plane in
their relationship to the state. This ap
parently subtle shift has the enormous
effect of removing parents from a line
position between the state and their
children, which not only exposes fami
lies to the risks ofdirect state access to
.Ghildrenr but whieh raises
-basic-
new
questions about the nature of parental
responsibility
..
.For one thing, the
state could revoke or
limit
its
delegation,
nd
in no case .could
parents exercise greater author
ity
than could the sttJ.te.27
There is yet another disturbing impli
cation of Justice Blackmun's opinion in
Danforth. That is: the Court's view
reflects a surprising insensitivity to the
distinction between public and private
action generally
~
to the private
authority of parents in particular. It al
so seems
to
assume that state support
for parental authority falls automatic
ally into the category
of
'state action'
for Fourteenth Amendment purpos
es. 28
n speaking of the right to personal
autonomy .. autonomy which is particu
larly important for young people
in
their developmental stage, 29 one writer
states: The first amendment is pre
mised on a belief that regimentation
of
mind and spirit block the advancement
of
knowledge and the discovery
of
truth;
state regulation or state-sanctioned par
ental interference that intrudes
on
areas
Do you promise to love, honor, and obey till divorce do you part?
The Counsel of Chalcedon Aug.-Sept., 1989 page 26
of belief and puts undue restrictions
on
spiritual development is inimical to
these important developmental val
ues. 30
To some, then, any state sanction.
of
parental control over children translates
into state action. Therefore, in such
instances
the child's constitutional
rights and state enforcement of those
rights come intoplay:
--
[C]hildren wil l have to continue tore
ly on state protection of
their.
religious
interests as against their parents, andof
course any state efforts to vindicate
their interests are limited by parental
constitutional rights recognized in
Pil rce
nd Yoder. A
case
could
arise i the state did seek to protect the
religious rights ofminors. This conflict
would be between the child's state-sup
ported interest in religious freedom (not
the child's constitutional right)
an,d
the
parents' constitutionally protected
rights.Jl
Finally
troublesome
is the
view
of
marriage expressed in
Danforth by
the
Supreme Court. Traditional marriage
was a
covenanted community
formed
from the consent
of
both parties. There
fore, it was something more profound
than the individuals who composed it
On the other hand, the Court's view
of marriage in Danforth follows the
reasoning
of
the Eisenstadt decision.
n
Eisenstadt,
marriage is seen
as
a tenu
ous union formed by the consensual
agreement of the two individuals who
remain autonomous and independent
throughout the relationship.
As
Peter
Riga comments:
Since this is so, then the decision to
abort comes down on the autonomous
individual who has the most to lose,
gain, suffer, etc., in a sort
of
balancing
process
of
advantages versus disadvan
tages. In this instance the woman does
the balancing. No heed is given to the
unbreakable unity or covenant, where
the marital institution is greater than its
composite individuals, because this no
longer exists as a definition
of
mar
riage.32
IN LO O CAESAR
Have the courts abandoned Meyer
v.
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material. Specifically they must strive
to "Train up Meghan in the way she
should go: and when she is old, she
will not depart from it" (Proverbs
22:6). They must "bring her up in the
nurture and admonition
of
the Lord"
(Ephesians 6:4). This will involve
their confronting her with God, His
Wo_rd,_
.and
His_ Qwnership throughout
her life with them. This should be as
Timothy's grandmother and mother did
for him: "And that from a child thou
hast known the holy scriptures, which
are able to make thee wise unto salva
tion through faith which is
in
Christ
Jesus" (2 Timothy 3:15).
May God bless Kent and Marilyn
with spiritual wisdom. May He bless
Kent, Marilyn, Marc, and Meghan with
material and spiritual bonds to each
other in
love
in
Christ Jesus. Q
Killing the amily
Continued from page 27
process.
t
is not a question
of
develop
ing rule of law deferential to the family;
it is the need to recognize that there
should rarely be judicial intervention at
all
in
families which are "going con
cerns." Damage results merely by
allowing resort
to
the legal process, no
matter what the outcome of the merits
may be. The law would be well-advised
to recognize the limits of its com
petence and decline
to
allow family
members resort to the courts when they
are dissatisfied with the decision oj the
family. f the day ever arrives when
special counsel must be appointed for a
six-year-old whose parents, following
the advice of their physician have
decided the child must have a tonsillecto
my, we will have permitted the adver
sary process familiar to business dis
putes and differing views ()f public law
to
overwhelm an already fragile institu
tion.42
NOT S
1.
125 u.s. 190 (1888)
2. /d.
at
210-211.
3. 262 u.s. 390 1923l
4. 431 u.s. 494 1977
5.
381 u.s. 479 1965
6. 405
u.s.
438 1972
7. Peter J. Riga,
TJie
Supreme Court's
View
of
Marriage
QiuJ
the Family: Tradition
or Transition?,
18
Journal of Family Law
301, 203-03 (1979-80).
8.
410
u.s.
113 (1973).
9. Riga,_op. cit., P 304.
10. 410 U.S. at 153.
11 /d
12. /d. (emphasis supplied).
13. To those who would challenge this
c o n c l u s i o n ~ I would refer them to the annual
average r one million plus abortions
performed in the United States since the
aecision in Roe in 1973 as well as Justice
White's dissent in Planned Parenthood v.
Danforth,
428 U.S. 52,
92
(1976): "In Roe
V.
Wade ... this Court recognized a right to
an abortion free from state prohibition."
14. 428 u.s. 52 (1976).
15. d. at 69, 71.
16. d. at 70 (emphasis supplied).
17.
d.
at 73.
18. /d. at 75
19. /d. In the companion case to
Danforth, Bellotti v. Baird, 428 U.S. 132
(1976), the Court found unconstitutional a
state law
r ~ u i r i n g
parental written consent
before an abortion could be performed on an
unmarried minor, but P.roviding that an
abortion could be obtainea under court order
upon a showing of good cause
if
one
or
both
p ~ n t s
refusecf consent. In
Bellotti II,
442
U.S. 62 (1979)
1
the Court reaffirmed the
unconstitutionality of the statute involved in
Bellotti I
but with some language favorable
to the parents' role in the uporinging of
children. ld. at 633-39.
20. George Gilder,
Sexual Suicide
(New
York: Ouandrangle Books, 1973),p. 15.
21. Alvin Toffler,
The Third Wave
(New
York: Bantam Books, 1980),_p. 215.
22. Spencer Rich, "One-Parent Families
Found to Increase Sharply in U.S.,"
Washington Post (May ~
19 S5),
p. A 17.
23. 431
u.s.
678 (197
24.
Doe
v.
Irwin,
428
F. Supp.
1198
The Counsel of Chalcedon o Aug.-Sept. 1989 o page 4
(W.D. Mich.1977), vacated without opinion,
599 F. 2d 1219 6th Cir. 1977).
25. 450
u.s.
398 (1981).
26. 428 U.S. at 64.
27. Bruce
C.
Hafen,
Puberry, Privqcy, and
Protection, 63 American Bar Association Law
Journal 13831.i 1386 (October 1977)
(emQhasis supp 'ed).
28. d. 1t 1388.
29. Comment, Adjudicating What Yoder
Left
Unresolved: Religious
R1ghts
for Minor
Cfzildren After Danforth anil
Carey,
126
University
of
Pennsylvania Law Review
1125, 1155 (1977).
30 /d
31.
ld .
at 1159 {footnote omitted).
32.
Ri_gll, Op_.
C l t . ~ p : .
304-05.
33. 400 U.S. 20:>, 242 (1972) (emphasis
sup_plied).
.
34. Comment, op c1t.,
pp.
1152-53.
35. 13 Misc. 2d 318, 178 N.Y.S. 2d 328
(Su_p.
Ct. 1958).
36. ld.
at
311, 178 N.Y.S. 2d at 331.
37. ld.
38. Laurence Tribe, Childhood, Suspect
Classifications, and Conclusive
PresiJ TlPtions: Three Linked RiddlesJ 39 Law
and Conte111porary Problems
8,
35 (1975).
39. 428 U.S. at 73.
40.
Bellotti v. Baird,
443 U.S. 622,
638
(1979).
41. 450 U.S. at 73.
42. 1980 Lecture at American Family
~ t i f u t e (Washington, D.C.) (emphasis in
OTI Q_nal).
LKeprinted, by permission, from Parents'
Rights, by John W Whitehead, 1985, Cross
way Books, Westchester,
IL]
Q