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Thursday, September 15, 2005

Parental Notification & The Establishment of Religion

The enactment of parental consent laws by States threatens the health of young women. The purpose of those laws is to create a barrier between a child and her doctor. The purported intent is to maintain the integrity of the parent-child relationship, but that is just a smokescreen.

Once Governor Blunt of Missouri signs the new parental consent law passed this week by his states' legislature, the law would immediately allow lawsuits against anyone who helps a teen obtain an abortion without parental consent.

Rep. Jane Cunningham, R-Chesterfield, who shepherded the bill to passage, said the legislation would discourage teens from traveling to the Hope Clinic for Women in Granite City, which under Illinois law does not require parental consent. The law recently enacted in Missouri holds the doctor liable for 'damages' if the doctor fails to notify the parents under law. Again, this is another restriction on the medical judgement of the doctor. Precedent exists in which the state intervened to save a sick child whose life was in jeaprody because the religious beliefs of the parents interfered with medical intervention.

In 1944, the US Supreme Court ruled in the case Prince v. Massachusetts (321 U.S. 158): “…neither rights of religion nor rights of parenthood are beyond limitation. Acting to guard the general interest in youth’s well being, the state as parens patriae may restrict the parent’s control. …Its authority is not nullified merely because the parent grounds his claim to control the child’s course of conduct on religion or conscience. Thus, he cannot claim freedom from compulsory vaccination for the child more than for himself on religious grounds. The right to practice religion freely does not include liberty to expose the community or the child to communicable disease or the latter to ill health or death. …the state has a wide range of power for limiting parental freedom and authority in things affecting the child’s welfare; and that this includes, to some extent, matters of conscience and religious conviction.” The Court added, “Parents may be free to become martyrs themselves. But it does not follow they are free, in identical circumstances, to make martyrs of their children before they have reached the age of full and legal discretion when they can make that choice for themselves.” These points were specifically applied to cases of parents refusing consent to medical treatment in Jehovah’s Witnesses v. King County Hospital, (390 U.S. 598 (1968); 278 F. Supp. 488 (1967). In this per curiam ruling, the Supreme Court affirmed a District Court ruling which upheld a Washington statute that placed children in state custody when parents refused lifesaving treatment. The basis for the District Court’s ruling was Prince v. Mass. [see NOTE]

It is concievable that a child might have a medical condition that would endanger her life if a pregnancy is allowed to go full term. Let us assume that this child has unprotected sex and a few days later goes to a clinic to request a D&C or similar procedure. There is no issue of fetal viability at this stage. Based upon the child's medical history, the doctor determines that the child needs medical intervention to terminate possible pregnancy. The doctor has reason to believe that the parents would not allow the procedure. The doctor understands that, if the child becomes pregnant, the difficulty of intervention increases proportionately with the viability of the fetus. Under Missouri Law, in this case, the state is in the position of interfering with medical intervention in deference to the religious belief of the parents. This is in direct conflict with the state's established role of guardian of the health of the child. Priority is given to the protection of religious belief by the state over the health of the child.

In another case, suppose a child has unprotected sex and confides as much with a faith-based counselor instead of going to a medical doctor for intervention. Suppose further that this child's parents believe in medical intervention to terminate a pregnancy to ensure the health of the mother. In addition, the parents understand that their child has a fragile medical history. Finally, in this scenario, the faith-based organization fails to notify the parents of their daughter's condition...focusing instead only on counseling. When the child becomes obviously pregnant and ill, the parents learn of the collusion between the child and the faith-based counseling organization.

There is an identical argument for the pro-choice parents against the faith-based organization who failed to notify the parents. They (the faith-based org) interferred with the integrity of the relationship between parent and child. In this case, by so doing, the Faith-based organization not only interferred with the parental relationship with the child, they also interferred with the relationship between the child's doctor and his patient.

Failure to consider potential interference by churches and other faith-based organizations under "Parental Notification" laws creates multiple constitutional problems:

* It violates the "Establishment" clause of the Constitution by favoring a faith-based interference with the parent-child relationship;

* It violates "Equal Protection" by favoring one class of parents who are subject to statuatory notice over another class of parents who have an equal interest in parental notification

* It predicates an alienation of affection and other consequences of interference between the pro-choice hoiusehold and their child, while virtually sanctifying the parent-child relationship in the faith-based household. This diminishment of the relative value of pro-choice families establishes a structural discrimination between those who are subject to state sanction and those who are not purely based upon religious belief.

The Religious Right has no franchise on family values and the love for children. It is outrageous for legislatures to establish such false claims of franchise and for the Courts to uphold them.
[Note] Many thanks to Forum: Law 17 Fall 2000 Final Legal Research Paper Date: 2003, May 17 Philip Nichols for this cite!

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