Defending America's children: how the current system gets it wrong.

• Author: Dodds, Tracy Leigh

1. INTRODUCTION

   The United States prides herself on recognizing the individual rights of every citizen. Americans are shocked by the treatment of women in Afghanistan, Saudi Arabia, and other foreign countries; they are embarrassed by their nation's own history of slavery and female disenfranchisement. Americans consider themselves superior in this respect; they have risen above these injustices and now inhabit a modern society that should be the envy of and blueprint for the rest of the world.

   Despite these advances, the United States is not doing a very good job protecting the rights to life, liberty, and the pursuit of happiness of this nation's children, who lack the capacity to defend their rights on their own. (1) Every day, thousands of children are beaten, starved, abandoned, and sexually abused. Courts and social services try to step in when they can, and when society hears of the most horrific cases, individuals are quick to express their outrage and anger. Nevertheless, the same situations are perpetrated again and again. In a nation that seems so dedicated to honoring the individual rights of each and every human being, why do so many adults feel entitled to treat children this way?

   This Note will explore the connection between the mistreatment of children and the dehumanization of unborn children, (2) and will argue that both wrongs stem from the misguided premise that human lives only deserve constitutional rights once a set level of development is reached. True recognition of the civil rights of children will not meaningfully progress until America learns to value children at all stages of development. Part II of this Note will explore how the Supreme Court's abortion cases have denied the personhood of unborn children, therefore failing to give the developing life any individual consideration separate from the governmental interests involved. Part III will examine cases in which courts have undervalued children by focusing on state and parental rights, rather than the individual child's interests. This section will also outline two of the most serious ways in which such a scheme has negatively affected our children: child abuse and infanticide. Part IV will discuss the connection between the lack of personhood afforded unborn children and the dearth of judicial consideration of individual children's rights. Finally, Part V will offer an alternative framework, one that explicitly recognizes the innate right of all individuals to have their existence recognized and honored by the government and courts. Although this new framework might not change the outcome of many children'srights or abortion cases, by giving explicit acknowledgment to the individual rights of every human life and considering these rights in the balancing process, courts will reaffirm the honor and dignity of every individual, a change that would benefit not only children, but everyone in society.

2. ABORTION AND THE SUPREME COURT: WOMEN VERSUS THE STATE

   1. Child or Choice?

      The Supreme Court's abortion decisions, even though impacting the lives, or potential lives, (3) of unborn children, cast the central issue as the woman's right to choose whether to bear a child versus the state's right to protect potential life. (4) The unborn child's right to maintain his life does not enter the equation because the developing entity, as the Roe v. Wade Court asserted, is simply not a person within the meaning of the Constitution, (5) The Roe Court sidestepped the difficult matter of considering the humanity of that subpopulation's constituent members, instead reducing the question to one of state power.

      After arriving at the biologically anomalous determination that an unborn baby is not a person, (6) the Court determined exactly when the unborn should be worthy of protection, setting deadlines and drawing boundaries between when life should be protected and when it should be disposable by the person the Roe Court referred to as the mother. (7) The Court concluded that for the first three months after conception, the unborn baby can be destroyed without any state oversight. (8) For the next three months, the state may take an interest in the lives of only its adult citizens. Regulations designed to protect the life and health of the adult woman are permitted, while measures aimed at saving the unborn life remain unconstitutional. (9) Only after a full six months of growth and development may the state protect the unborn child. (10) Thus, the Court not only accepted but mandated the conclusion that lives become worthy of institutional respect only after a certain judicially determined point of development. Moreover, even when the state is permitted to proactively protect unborn life, states have no duty to defend viable fetuses, as the unborn child has no individual right to protection.

      Nineteen years later, in Planned Parenthood of Southeastern Pennsylvania v. Casey, (11) the Court altered its delineation of when life has enough meaning to merit state protection, but did not deviate from the fundamental framework of valuing human existence based on an entity's developmental stage. (12) Although acknowledging that states have legitimate interests in protecting the life of the unborn infant from conception onward, (13) the idea that rights change based on gestational age was reiterated, this time with the focus on viability. (14) Additionally, the Court again failed to recognize any independent right of the unborn baby to have his life interests considered and balanced by the courts. The precise formula changed somewhat, as the state's interests can be implemented earlier, but rights of the unborn child remain absent from the equation.

   2. Women Versus Children?

      Regardless of the interests of the unborn, some argue that abortion is necessary for women's equality. Similar to courts' presentation of the abortion debate as one of women's autonomy versus state power, abortion-rights groups often frame the issue as female freedom versus fetal existence. When the developing fetus is not considered a human life, (15) the answer appears simple: Human freedoms should always trump nonhuman concerns, so women's interests should govern, and access to abortion must be open and unfettered. A closer analysis of the facts, however, calls this conclusion into doubt; even if one accepts the premise that the fetus is not a human life, the correct result may not be so straightforward.

      In direct opposition to the founders of the feminist movement, (16) abortion advocates now insist that abortion-on-demand is a central tenet of feminism, necessary to accomplish true gender equality. (17) They claim not to be in favor of abortions per se, but instead argue that access to abortion is necessary to protect women,is Thirty-three years after Roe, however, many women now see that their liberation brought much greater costs than anyone ever imagined. Aside from physical complications such as increased risk of infertility, ectopic pregnancies, sterility, miscarriages, and breast cancer, (19) clinical research now shows that severe psychological complications can result from having an abortion. (20) As technology advances, women are now able to see the tiny bodies of their unborn children, and many post-abortive women come to realize that it was not merely a so-called lump of tissue that they excised from their bodies, but a human being, with tiny hands, feet, and eyes. (21) Still, pro-choice groups continue to fight informed-consent rules surrounding abortions, insisting that such information is coercive; (22) they would have a woman remain ignorant, not realizing the potential harms until after it is too late for both the mother and unborn baby. Moreover, many women now suffer from what has been termed "post-abortive syndrome," characterized by extreme guilt and anxiety, drug and alcohol abuse, difficulty in personal relationships, sexual dysfunction, communication difficulties, damaged self-esteem, and even suicidality. (23) In fact, new organizations and publications have emerged to deal with the serious psychological complications facing post-abortive women and the tremendous guilt and shame they face because of their choices. (24)

      Besides ignoring the interests of the unborn child, courts also leave unexamined the real best interest of the women whose rights they attempt to protect. Because they deem it unnecessary to weigh the life interests implicated, and instead focus on autonomy, privacy, and state power, the difficult question of what might best serve all of the parties involved remains hidden. The issue is clouded behind rhetoric and broad assertions that the availability of abortion is a woman's issue, making it difficult for politicians and legislatures to deal with the facts freely and openly. Ironically, by failing to challenge such generalized concepts as "women's issues" or "female autonomy," those who claim to stand up for the well-being of our society's underprivileged and underrepresented may actually be doing the opposite; not only do they work against the life interests of the unborn by declaring them inhuman, but the widespread availability and acceptance of abortion may actually be harming the women they claim to help. (25)

   3. The Next Step: Stenberg v. Carhart (26)

      Since Roe v. Wade, perhaps no issue has so invigorated the pro-life movement as partial birth abortion. Far from the clandestine procedures accompanying early term abortions, these methods, known as D&E and D&X, (27) involve the destruction of something that looks almost identical to the newborns cherished in the labor and delivery section of the hospital. Procedures deemed to be a matter of fundamental right no longer result only in the destruction of unrecognizable embryos, but fully formed and developed half-born, or even fully born, children.

      Dissatisfied with their inability to protect unborn children, several state legislatures, including that of Nebraska, enacted...