Parents, children & the Supreme Court
Ford, Maurice deG.
'THOSE WISE RESTRAINTS WHICH MAKE MAN FREE' '"I i*,6. Parents, children I j & the Supreme...
...Justice Stewart pointed out in a concurring opinion in the The reasonable doubt standard of criminal law functions in its Parham case, a constitutional distinction has evolved in our realm," again wrote Chief Justice Burger, "because there the jurisprudence...
...conducted...
...Every day, mental be more illusory than real...
...The child is not the family-rather than the judicial mere creature of the State...
...are seen by a family doctor or at a community mental health .. . Surely parents have a duty to recognize symptoms of clinic before being brought by their parents to an in-patient illness and to keek and follow medical advice...
...This process often right, whereas, in terms of the Court's precedents, there has makes it very difficult for the expert physician to offer definite been no similar "fundamental" right not to be hospitalized for conclusions about any particular patient...
...Applying these criteria, however, sory attendance law...
...Citing a 1925 case-Pierce v. Society of Sisters -which upheld the right of parents to send their chil- down rather strongly on the side of dren to parochial and private schools, rather than rely on the traditional parental rights and for the public school system, the Court said...
...perhaps the and their access to court," it would be "unrealistic" to believe most persistent search in constitutional that the mere existence of the legal right to go to court would law has been to identify which personal provide "an effective avenue of relief to those who need it the values should be deemed "fundamental...
...that placing a child, against his will, in an insane asylum is as The Massachusetts abortion statute, whose constitutionality bad, if not worse, than incarcerating that child in jail, so great was examined in Belotti v. Baird, required that parental conare the loss of liberty, the consequent stigma and the deteriorat- sent be secured before an abortion could be performed on an ing conditions of many in-patient mental health facilities...
...A state agency, values have ranged from natural law to the dictates of "rea[serving as guardian] may not care...
...Georif he or she personally disagreed or thought it not in the minor's gia's procedures seemed to them defective in this regard...
...Despite the fallibility of psychiatric diagnosis, Chief More important, historically it has recognized that natural Justice Burger and Justices White, Blackmun, Powell and bonds of affection lead parents to act in the best interests of Rehnquist, believed that since admission questions are essentheir children...
...In theory one corded to the parent-child relationship," wrote Justice Brencan distinguish between ruling on a minor's maturity to make a nan...
...But a pregnant adolescent has to make a rapid decision statute, even though they agreed on the Massachusetts law's about whether or not to abort or else it will be made by default...
...The Justices were admission...
...Even though the Massachusetts statute cedural requirements entail the expenditure of limited re- gave the child the right to have a judge permit the abortion if sources" and "that at some point the benefits to individuals her parents refused, the Massachusetts Supreme Judicial Court from an additional safeguard is substantially outweighed by had ruled that any available parent must be given notice of the the cost of providing such protection, and that the expense in pendencyof judicial proceedings...
...The state through its voluntary contrast, emphasized "a life of `goodness' rather than a life of commitment procedures does not `label' the child...
...They also believed childhood "a sion of a minor...
...The American Psychiatric Associa- list...
...it provides a intellect...
...Alan Stone, took an The "fundamental" right to a private decision about aboractive role in the litigation, called the Court's attention to the tion had been clearly extended to minors in an earlier case, fact that the average hospital psychiatrist is only able to devote Planned Parenthood v. Danforth...
...In the hearing to determine if the initial decision to admitformer case, the judge must respect the minor's decision, even sometimes made in crisis-was appropriately made...
...performed on a minor...
...tially medical in character, a trained doctor is far more likely to Many, however, are far more skeptical than the Chief Jus- make a correct decision than a judge...
...both the Federal District Court and Court our most cherished values, moral and cultural.' ' The danger, of Appeals agreed with lawyers for the children...
...to guide the religious future and education of internal procedures for discussion are followed, the law will be their children," and similarly Chief Justice Warren Burger satisfied...
...tion as an impermissible exposure of their children to a In Parham v. J.L...
...four Justices and written by Justice Lewis Powell...
...So there is a double opportunity to make sure that concept of the family rests on a presumption that parents something is really wrong with a child...
...But the I N TERMS of gravity, most laymen would probably equate the, Court prudentially realized that this would place upon the deprivation a child experiences if involuntarily placed by predictive powers of psychiatry an unrealistically impossible his parents in a mental hospital and the detriment a girl experiburden...
...But, as John Hart Ely (one of Professor Bickel's toward surgery, institutional psychiatrists often have a bias former students) points out in a recent issue of the Harvard towards institutional psychiatry...
...A significant number of the Justices social ostracism resulting from the observable symptoms of an said that the case would take on a very different character if the untreated disorder...
...Riding the crest of the "chil- where the parents could make a maximum contribution to the drens' rights" movement, lawyers for the children had argued child's care...
...deviant" behavior, or refusing, for deeply-held religious Commonweal: 462 reasons, to grant permission for an abortion...
...unconstitutionality...
...In effect, Parham was a test case as do not seem to appreciate adequately is the cost of providing to whether a new "fundamental" value should be added to the hearings for each child...
...The social worker-child relationship parental consultation in which the court may participate...
...children had objected...
...They were more worried own adolescence, a minor does not need severe obstacles in the about the chances for an erroneous commitment where chilway if she chooses to abort...
...and without adequate time or opportunity to become acWas there any allowable parental role in the abortion deci- quainted with the patient...
...was the opinion offered by values can be tremendously subjective...
...Nor can we trust the son" to "enduring neutral principles" to the judge's own hospital for an impartial judgment...
...Several other points concluding that parents may sign their children into mental militated against requiring a formal, judicial hearing prior to institutions without a prior judicial hearing...
...health professionals come across children in trouble precisely The Court's decision in the child commitment case thus because their parents' conscious and unconscious needs, acted continues a trend by the Burger Court to respect psychiatric out through the demands placed upon them, are not at all in the decision making, even in contexts which admittedly involve a children's "best interests...
...They thought "the tice about the congruence between parents' "natural bonds of supposed protectiops of an adversary proceeding...
...Due process of law," it was urged, meled too closely upon the freedom of minors...
...So deeply imbedded in our traditions is get him out of an inadequate parent's or disturbed neighbor's this principle that the Constitution itself may compel a State to hair...
...The United States Supreme Court said, however, that, given the fact that many parents hold such strong views on the subject and that "young pregnant mothers, especially those living at home, are particularly vulnerable to their parents' efforts to obstruct both an abortion I n the last two decades...
...In terms of public reaction, the child who exhibits provided strong vocational education, albeit for a limited abnormal behavior may be seriously injured by an erroneous range of vocations...
...psychiatric treatment...
...In what resembled an advisory opinion to any particularly vulnerable time of life and children erroneously legislature attempting to draft a constitutional statute, Powell institutionalized during their formative years may bear the and his three concurring justices distinguished between a scars for the rest of their lives...
...First, the private interest that will be In the Addington case, which dealt with the standards for affected by the official action...
...If surgeons have a bias conscience...
...What linked the Court's conclusion in Belotti v. Baird to its...
...most...
...But...
...may well affection" and their children's welfare...
...Third, an adversary hearing might on the respective rights of parent and child...
...the Supreme Court seems to have come down rather strongly How much protection for pregnant girls would remain in such on the side of traditional parental rights and for the familysituations...
...Amish society, by not nearly as stigmatizing...
...In its recent grappling with the ture and require parental consultation, which might place constitutionally proper relationship between parent and child, heavy pressure on a minor to fall into line with parental views...
...The Court held that "due process" required a full adver- respect it...
...There was, moreover, no evidence at the decision not to commit...
...The law's facility...
...Quoting Federal Court of Appeals absolute, even arbitrary, veto over whether a pregnancy Judge Henry Friendly, the majority recognized that "pro- should be terminated...
...the inculcation of moral standards and religious beliefs...
...Parents, children I j & the Supreme Court Court, however, overturned their decisions...
...Indeed, parents may not even have the Second, again to use the phraseology of Justice Brennan, "the right to be notified that their daughter is considering an abor- hearings themselves might delay treatment of children whose tion...
...In that instance the Su47 percent of his time to patient care...
...and finally, the Government's interest, Wisconsin v. Yoder...
...tion, which, under the leadership of Dr...
...The subtleties and nuances of psychiatric diagnosis ences if her parents refuse consent for an abortion...
...the majority of the Court distinguished `worldly' influence in conflict with their beliefs...
...Since the Supreme Court's decision in Roe v. standard is addressed to specific, knowable facts...
...Its review of the procedures employed in admitting children to mental health N TWO MAJOR decisions handed down in late June and early facilities in Georgia indicated that admission took place only July, the United States Supreme Court reached seemingly after a careful diagnostic medical inquiry...
...THOSE WISE RESTRAINTS WHICH MAKE MAN FREE' '"I i*,6...
...Freedom, in other tions sufficiently mature and none in need of parental gui- words, seems to have as one of its inherent components a dance...
...The abortion requires the same safeguards against abuse-including the decision, the Court had earlier ruled in Roe v. Wade, involved right to counsel and to independent psychiatric expert tes- a "fundamental" right of privacy, and it was a decision that timony on one's behalf-that the Supreme Court guaranteed could not be postponed...
...majority rather believed that it might be equally, if not more, On the farm-for the Amish were devoted "to a life in har- stigmatizing for a child to be out of the hospital, if he was mony with nature and the soil" -the Amish community in fact disturbed...
...And in Bellotti v. Baird, Justice Lewis Powell sary hearing, surrounded by many procedural protections (al- called attention to "the unique role in our society of the family, though not necessarily the right to trial by jury...
...31 August 1979: 465...
...Parental involvement in child rearing was T he Supreme Court seems to have come very important...
...massive curtailment of liberty...
...First, parents might be frightened away from seekalso almost unanimous in striking down a Massachusetts stat- ing necessary psychiatric help for their children if they knew ute which required parental consent before an abortion can be they had to face the prospect of a legal, adversary battle...
...Moreover, given the often low level of education, employment The practical reality of how admission to state mental hospiskills and finances of many teenagers who get pregnant, tals might work likewise gave Justices Brennan, Marshall and coupled with the difficult psychological task (if the baby is Stevens (who probably constitute the Court's new liberal born) of bringing up a child before one has completed one's wing) pause in the Parham case...
...mendously subjective-involving the opposite of a desired Yet one factor that civil libertarians, like Ellen Goodman, more neutral judicial role...
...second, the risk of an erroneous adult commitment, counsel for the petitioner asked the Su31 August 1979: 463 preme Court to apply the same rule for "incarceration" in a protecting those likely to be found undeserving will probably mental hospital as is constitutionally required in criminal come out of the pockets of the deserving...
...diagnosis and treatment that medical specialists conclude the The Courtt decided, on First Amendment grounds of free- child requires...
...They viewed "secondary school educa- still leaves room for considerable judicial subjectivity...
...The high the situation of the child brought by his parents for admission school tends to emphasize intellectual and scientific ac- to a mental hospital hospital from that of the juvenile delincomplishments, self-distinction, competitiveness, worldly quent labeled as criminal...
...In attempting to do so, home life has become impossible and who require some form we may learn much about the Supreme Court's latest thinking of immediate state care...
...FORD teaches law and psychiatry at Harvard Univer- ally straitjacketing him or her into a mental institution for sity...
...juvenile offenders in its 1967 landmark decision, In re Gault...
...And what happens in those com- formula for conferiing degrees in law declares that the candimunities where there is only one judge- with very set opin- dates "are ready to aid in the shaping and application of those ions...
...If, for example, a minor desires to marry before the age of majority, the consequence, if permission is refused, is just to postpone that decision...
...In best interests...
...Can these decisions be reconciled...
...It seems that, in an age where so many issues posed by actual, specific cases and statutes kept Justices societal pressures tend to fragment the family in favor of Stevens, Brennan, Marshall and Blackmun from joining Jus- individual autonomy, a certain amount of restraint in the tice Powell's "advisory" exercise of outlining a possible service of a more perfect freedom is in order...
...Therefore they insisted, in a minor found by a judge to be mature enough to make her own partial dissent, that there must be a prompt post-admission abortion decision and one found not sufficiently mature...
...In the risk of error poses such large consequences for children's practice a judge's views on the decision itself, namely, the lives, these positions seem constitutionally correct...
...For example, when a pupil "acts up" in Chicago if he or she suddenly got the urge to move there...
...The former was, the Court thought, success and social life with other students...
...Notwithstanding this, Justice Powell called attention to the peculiar nature of the abortion decision...
...But, as render certainties virtually beyond reach in most situations...
...Adding "time- preme Court held that a state may not impose a blanket reconsuming procedural minuets before the admission" would quirement giving a parent (or person in loco parentis) an only cut this figure down...
...For centuries," wrote Jusconcern, with which juvenile court proceedings were often tice Potter Stewart in a concurring opinion inParham v. J.L...
...rather than the judicial system-as the appropriate unit for These questions as well as a preference for only deciding decision making...
...Often he is referred by possess what a child lacks in maturity, experience and capacity the community clinic only after out-patient treatment has for judgment required for making life's difficult decisions...
...Parents' religious convictions are dren were concerned, especially when, as they viewed the commonly just such obstacles...
...The their children out of the public schools after the eighth grade...
...She implies that the Burger Law Review, discovering "fundamental" values can be treCourt has retrenched again...
...In practice, most children family as a unit with broad parental authority over children...
...In both the abortion and child commitment cases, where decision and ruling on the merits of that decision itself...
...As long as the school's fair and est of parents...
...In a famous opinion in the Gault case, Justice Abe Fortas AT STAKE in both cases were matters going to the essence of noted the enormous sloppiness, in the guise of paternalistic the parent-child relationship...
...Thus the psychiacontradictory results...
...The Supreme Court held that this tramdisposing of their child...
...Georgia law that, like similar laws in most other states, allows The child will eventually have to go back home with the a parent to sign the consent forms for "voluntary" admission parents and the Justices wanted to preserve an atmosphere of a minor to a mental hospital...
...The danger of "dumping" unwanted, difficult chilnot in her best interests or (b) may "defer decision until there is dren seemed too great...
...school, he does not have the automatic right to go to court In the Amish case, the Court noted "the fundamental inter- before he is disciplined...
...that "a family in stress may not have the information and Judges searching for the sources of these "fundamental" emotional stability to make a good judgment...
...Safeguarding "the welfare of the child" could be a "it has been a canon of the common law that parents speak for pretext for railroading him into a juvenile detention center to their minor children...
...deprivation of such interest through the procedures used, and One of the most interesting cases to have come before the the probable value, if any, of additional or substitute proCourt in this regard is the case of the Old Order Amish, cedural safeguards...
...If, however, the judge does not find the minor addition, the three Justices would require a prior judicial mature enough, the judge (a) may directly, and in the absence hearing whose state social workers sought to commit wards of of parental consultation, decide whether the abortion is or is the state...
...the institution by which 'we inculcate and pass down many of InParham v. J.L...
...Psychiatric Wade, an expectant mother's right to decide upon an diagnosis in contrast, is to a large extent based on medical abortion-considered of the essence of the right to privacy'impressions' drawn from subjective analysis and filtered has been deemed a fundamental substantive constitutional through the experience of the diagnostician...
...proceedings-that "dangerousness to self or others," like guilt, must be proven "beyond a reasonable doubt...
...But clearly, in a modern technological Chief Justice Burger's opinion for the Court also stressed society, the typical Amish child would be ill-equipped, both in that "due process of law" does not, in every instance, have to training and spiritual development, to cope with a city like be judicial process...
...Jonas Yoder and Adin Yutzy had been including the function involved and the fiscal and administrafined, on a criminal complaint, for refusing to send their tive burdens that the additional or substitute procedural rechildren to high school, in violation of Wisconsin's compul- quirement would entail...
...Would anti-abortion judges rule all such minors imma- certain amount of restraint...
...The Thomas Szaszes of this world and the Young Turks of the legal profession-those O N WHAT BASIS, then, is the Supreme Court dividing mental health advocates who want to place almost every decision-making responsibility between parent and child...
...is not deserving of the special protection and deference acThis opinion leaves troublesome questions...
...But one wonders how many children experidom of religion, that Amish parents did have the right to keep ence the reality of commitment in such a benign way...
...unmarried girl under 18, provided that if either parent refused Moreover, the parents, rather than the child, may be the central consent, a judge could nonetheless order the abortion "for problem and they should not be allowed to respond to it by good cause shown...
...psychiatric decision in a legal straitjacket-have suffered a Not surprisingly, rather than acting syllogistically according to defeat, as they did earlier this term in the Court's unanimous predetermined maxims, the Justices have tried to balance a decision in Addington v. Texas...
...It recited an increasingly familiar litany of the reasons why the constitutional rights of children should not be deemed co-extensive with those of adults...
...A person needing, but not trial that the Amish children concerned objected to the judg- receiving, appropriate medical care may well face even greater ment of their parents...
...Columnist Ellen Goodman, for one, states safeguarded by the federal courts against legislative intrusion...
...discovering "fundamental" earlier views in Parham v. J.L...
...number of factors...
...those who nurture him and direct his destiny have the right, coupled with the high duty, to recognize system -as the appropriate unit for deand prepare the child for 'additional obligations,' " such as cision making...
...The Supreme of course, arises when parents' "cherished . . . moral and cultural" values threaten to overwhelm the child, almost literMAURICE deG...
...As in the case of the Amish, Georgia practice, "the psychiatrist interviews the child during there is a central question of whose religion is involved-the a period of abnormal stress in connection with the commitment parents' or the child's...
...Children were "peculiarly vulnerable," Commonweal: 464 especially in "their inability to make decisions in an informed, mature manner...
...request for an abortion, are likely to color his or her estimation At each June's commencement, the traditional Harvard of the minor's maturity...
...wrote for the majority in Parham v. J.L.: "Our jurisprudence The majority saw little risk of error in the admission procehistorically has reflected Western Civilization conceits of the dures used in the state of Georgia...
...In the last two decades, partly due to the influence of the late Alexander M. Bickel, Yale's famous SUCH CONFIDENCE in the independent check of admitting constitutional scholar, perhaps the most persistent search in psychiatrists and medically informed referral sources has, constitutional law has been to identify which personal values not surprisingly, been looked upon with dismay by a number should be deemed "fundamental" in our law and stringently of civil libertarians...
...only serve to exacerbate those tensions in the parent-child The child commitment case, Parham v. J.L., involved a relationship which may have caused hospitalization initially...
...failed...
...The Justices were unanimous in trist was always a check on parents...
...Would pro-abortion judges find all minors seeking abor- wise restraints which make men free...
Vol. 106 • August 1979 • No. 15
