Stopping crimes by preventing the birth of victims?

I'm fascinated by this item from Drudge today about a woman who was ordered to stop having children:

ROCHESTER, N.Y. (AP) - A Family Court judge who last year stirred debate about parental responsibilities ordered a second drug-addicted woman to have no more children until she proves she can look after the seven she already has.

The 31-year-old mother, identified in court papers only as Judgette W., lost custody of her children, ranging in age from eight months to 12 years, in child-neglect hearings dating back to 2000. Six are in foster care at state expense and one lives with an aunt.

The youngest child and two others tested positive for cocaine at birth and all seven "were removed from her care and custody because she could not and did not take care of them," Judge Marilyn O'Connor said in a Dec. 22 decision made public Tuesday.

The ACLU has weighed in on the side of the mother, citing the "right to procreate":
O'Connor said she was not forcing contraception or sterilization on the mother, who had children with seven different men, nor requiring her to get an abortion should she become pregnant. But she warned that the woman could be jailed for contempt if she has another child.

The New York Civil Liberties Union maintained that the opinion cannot be enforced because it "tramples on a fundamental right - the right to procreate."

"There is no question the circumstances of this case are deeply troubling," said the group's executive director, Donna Lieberman. "But ordering a woman under threat of jail not to have any more babies ... puts the court squarely in the bedroom. And that's no place for the government."

Government in the bedroom? Where have we heard that before?

What's next? Heterosexual rights?

What fascinates me is that the right to procreate seems so basic that no one thought to list it in the Bill of Rights. Sure, they had free speech, freedom of religion, the right to keep and bear arms, freedom from illegal search and seizure, but that was because these were all freedoms which governments were known at the time to encroach, and the founders wanted a government which could not do that.

But they recognized that future governments might attempt to encroach other rights not then recognized or even contemplated. Like the right to shave your face in the morning, or the right to have babies. Or not have babies.

There's a split among so-called "strict constructionists" between those who see the Bill of Rights as a specific, delimited list, and those who see it as an incomplete list of the rights the founders deemed were most paramount, never intended as a restriction of rights. I've never been able to understand what it is that strict constuctionists fail to understand about the Ninth Amendment:

The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.
One of the drafters, James Madison, made it quite clear what this meant:
RIGHTS RETAINED BY THE PEOPLE

Aside from contending that a bill of rights was unnecessary, the Federalists responded to those opposing ratification of the Constitution because of the lack of a declaration of fundamental rights by arguing that inasmuch as it would be impossible to list all rights it would be dangerous to list some because there would be those who would seize on the absence of the omitted rights to assert that government was unrestrained as to those.\1\ Madison adverted to this argument in presenting his proposed amendments to the House of Representatives. "It has been objected also against a bill of rights, that, by enumerating particular exceptions to the grant of power, it would disparage those rights which were not placed in that enumeration; and it might follow by implication, that those rights which were not singled out, were intended to be assigned into the hands of the General Government, and were consequently insecure. This is one of the most plausible arguments I have ever heard against the admission of a bill of rights into this system; but, I conceive, that it may be guarded against. I have attempted it, as gentlemen may see by turning to the last clause of the fourth resolution.''\2\ It is clear from its text and from Madison's statement that the Amendment states but a rule of construction, making clear that a Bill of Rights might not by implication be taken to increase the powers of the national government in areas not enumerated, and that it does not contain within itself any guarantee of a right or a proscription of an infringement.\3\ Recently, however, the Amendment has been construed to be positive affirmation of the existence of rights which are not enumerated but which are nonetheless protected by other provisions.

I don't see how else a "right to procreate" might be said to exist. (In this respect, the often quoted "laws of nature and of nature's God" phrase is as instructive as it is redundant.)

That's not to say that a hard core crack mother might not be able to have her right taken away in the same way (or for similar reasons) that someone might lose his right to keep and bear arms (insanity or incapacity), but forfeiting a right (assuming due process) is not the same thing as the right not existing in the first place.

I'm not sure that these unlisted rights should have to be court-divined from the much-criticized "emanations from the penumbra" of privacy of Griswold v. Connecticut or Roe v. Wade either. In my view, the Ninth and Tenth Amendments shouldn't require judicial activation of that sort. If the government doesn't have the power, it doesn't have the power.

In my view, the very existence of the 18th Amendment (prohibition of alcohol) reveals that there was a time -- comparatively recent in our history -- when it was recognized that the type of federal regulation now recognized as routine would only be permissible by constitutional amendment. Under the Tenth Amendment, the federal government had no specified power to regulate alcohol, the possession and consumption of which was one of the unenumerated Ninth Amendment rights nonetheless retained by the people.

The extent to which a state can limit (or expand) rights in the absence of federal government power is often very problematic -- and hence often treated in a contradictory manner. As I've pointed out before, many of those who'd uphold a state's right to limit an asserted right (Lawrence v. Texas) would oppose a state expanding rights (also to control one's body) when the federal government has spoken (Ashcroft v. Raich).

In the case of the crack-addicted mother, the judge apparently issued a "do-not-procreate" order absent any statutory authority forbidding crack-smoking mothers from procreating. For what it's worth from my own moral standpoint, I don't think she should be smoking crack while cranking out babies. But there are a lot of things people shouldn't be doing that they do anyway; that doesn't necessarily give the government the right to regulate them. She's already violating the law by smoking crack; what on earth makes this court think she'll obey an order? Hasn't anyone thought of prosecuting her for child abuse? (If she's in prison, she can't have more children, which would appear to moot further discussion of the "right to procreate.")

I'm reminded of the case Dennis reported yesterday. Perhaps it makes more sense to prosecute the crack-smoking mom under the same legal theory that would allow prosecution of the mom who had her boyfriend beat her baby with a baseball bat.

Couldn't that mom have been ordered not to procreate too? And what about the abusive parents who wait till the babies are born, then beat, scald and kill them?

Why is it different if these crimes are committed before birth?

Does the state have a right to prevent future harm by issuing "do-not-procreate" orders?

Or must society wait for more victims?

(I think I better stop here, because I've raised more questions than I can answer.)

posted by Eric on 01.05.05 at 09:30 AM





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Comments

In this case there's a conflict between several different rights. The mother has the right to have children as she pleases... but her children have the right to be loved and taken care of.

Not to mention that the taxpayers have a right to be incensed to have to foot the bill for this woman and her kids.

I think the kids' needs trump the mother's.

Kacie Landrum   ·  January 5, 2005 11:51 AM

Excellent once again. Yes, the Ninth Amendment clearly states that we retain rights not enumerated in the other Amendments constituting the Bill of Rights. We retain rights, they are not granted by a government. Those of us who are theists of one sort or another would argue that these inalienable rights are endowments from a Creator.

It is unfortunate that Justice Douglas felt compelled to speak of "emanations from penumbras", thus subjecting the language of his opinion in Griswold vs. Connecticut to ridicule by totalitarian demagogues decades later. At the time however, such ridicule was still being focused instead on the invocation of a Swedish socialist sociologist in Brown vs. Board of Education. I have long thought that Justice Harlan's dissent in Plessy vs. Ferguson was plain enough.

The term "strict constructionist" originally mean one who narrowly construes the powers of government, especially the federal government, not the rights of the individual. The meaning has been switched. I have long held that it is meaningless to speak of "liberals" vs. "conservatives" when discussing judicial philosophy. The real division is between individualists vs. collectivists: those who see the Constitution as islands of strictly limited government powers surrounded by an ocean of inalienable individual rights vs. those who see it as islands of explicitly granted individual rights surrounded by an ocean of unlimited government powers.



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