1989 issue 7 - killing the family - counsel of chalcedon

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-


2/5

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

5


3/5

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.


4/5


5/5

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

1989 issue 7 - killing the family - counsel of chalcedon

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