November 15,
2011
(202) 626-8820
RE: Parental Rights Amendment
Dear Senator:
The National Right to Life Committee
(NRLC), the nationwide federation of
state and local pro-life organizations,
respectfully urges you to refrain from
cosponsoring or otherwise endorsing a
proposed amendment to the U.S.
Constitution, known as the “Parental
Rights Amendment” (PRA). In recent
communications, at least one
organization has urged senators to sign
on as original cosponsors of this
measure, in anticipation of its possible
introduction in the Senate.
We understand that the language
currently planned for reintroduction is
the same as that previously proposed,
most recently as H. J. Res. 3. NRLC is
opposed to that language, because it is
flawed and could pose a serious threat
to pro-life interests in several areas
of the law. In this letter, we offer
only a brief summary of our objections.
Until and unless the issues that we have
raised are truly resolved by acceptable
revision to the text of the PRA, we ask
that you not embrace this measure.
The PRA would amend the U.S.
Constitution to declare that “the
liberty of parents to direct the
upbringing and education of their
children” is a “fundamental right.” (The
proponents of the PRA have explicitly
argued that “direct the upbringing” must
be very broadly construed, and would
include, among many other things,
“health care” decisions.) The amendment
goes on to say that no level of
government may “infringe upon this
right” except by “demonstrating that its
governmental interest . . . is of the
highest order and not otherwise served.”
We have no doubt that proponents of
the PRA are well intentioned. Moreover,
they are animated by substantial
concerns regarding troubling trends in
some areas of the law, including
treaty-based law, that may run contrary
to pro-life interests. We do not quarrel
with a desire to reinforce a legal
presumption that responsibility for the
protecting and nurturing of a child
rests primarily with the parents. Yet,
NRLC believes that each child has an
independent, intrinsic right to life,
and in cases in which a parent or
parents disregard that right, by choice
or by neglect, the parent’s right to
decide must be overridden and the
child’s right to life protected by
others – most often, by government
actors, such as courts and law
enforcement personnel.
Cases in which parents disregard the
right to life of their own child, while
not the norm, regrettably are far from
rare. Indeed, abortion itself, in most
cases, may be regarded as a circumstance
in which one or both parents initiate,
or at least consent to, the violation of
the right to life of an unborn child.
Because of decrees of the U.S.
Supreme Court (including Roe v. Wade
and Casey v. Planned Parenthood),
elected lawmakers are currently severely
restricted from protecting unborn
children from abortion, in cases in
which the mother consents to an
abortion. It is our hope and expectation
that these cases will eventually be
overturned, and certainly this
possibility should not be disregarded in
evaluating the potential effects of a
proposed constitutional amendment.
Beyond this, even under current
constitutional case law, there are other
types of cases in which government
actors – for example, state courts and
law enforcement officers – may and do
intervene to protect the right to life
of children, in ways that contravene the
wishes of parents. We are troubled by
the possible adverse effects which the
PRA could have with respect to the
outcome in such cases.
Consider, for example, the case in
which an unmarried, unemancipated
pregnant minor wishes to give birth, but
one or both parents are determined that
she should procure an abortion. Sadly,
such cases are not at all uncommon.
According to a 2006 New York Times
article, “providers interviewed in 10
states with parental involvement laws
all said that of the minors who came
into their clinics, parents were more
often the ones pushing for an abortion,
even against the wishes of their
daughters.”
Currently, in such cases, a minor
girl or her advocates can seek recourse
to government interveners, including
state courts, which invariably rule that
the minor girl has a right to refuse the
abortion – chiefly because of the
autonomy conferred by the judge-made
doctrine of Roe v. Wade and its
progeny. Advocates for the PRA have
cited these precedents in attempts to
dismiss concerns regarding how the PRA
could enhance the rights of parents who
wish to prevent their minor daughters
from giving birth. We believe this
reliance is evasive, or at least
misplaced. The PRA proponents are
proposing to insert a new textual
“fundamental right” into the U.S.
Constitution. Where this new
black-letter fundamental right comes
into conflict with an unenumerated,
judge-made “right,” it is the new
constitutional text that is likely to
prevail. Even if this were not so,
certainly it would be remarkable for
pro-life lawmakers or advocates to rest
their analysis on the premise that
Roe v. Wade and its progeny will
retain their full vitality indefinitely.
If the PRA were part of the
Constitution, the coercive parents would
have a new and very powerful legal
weapon to wield against anyone who seeks
to interfere with the abortion.
Conscientious judges would be compelled
to look first to the new constitutional
text, which says that no level of
government (no state judge, for example)
may interfere with the “fundamental
right” of the parents to decide the
outcome. The government can step in only
if it can bring to bear a “governmental
interest of the highest order.” PRA
advocates have offered no coherent or
convincing explanation of where the
minor girl, or her advocates, would find
a “governmental interest of the highest
order,” rooted in the Constitution, that
would allow government actors to
override her parents’ wishes in such
cases.
Similar concerns arise with respect
to so-called “Baby Doe” cases, referring
to babies who are born alive with
serious disabilities or acute medical
needs. Some of these live births result
from attempted abortions; certainly, no
presumption that the parent is looking
out for the child is warranted in such a
circumstance. NRLC has advocated for
laws that allow state and federal
officials to step in to protect the
intrinsic right to life of abortion
survivors and other vulnerable newborns.
Here too, the PRA could tip the scales
too far towards parental autonomy, at
the expense of protecting the child’s
intrinsic right to life.
In particular, ratification of the
PRA in its current form could result in
a constitutional challenge to the
federal Child Abuse Amendments of 1984,
which require states that receive
federal funding for their child abuse
and neglect programs to intervene to
prevent parents from successfully
directing or consenting to the
“withholding of medically indicated
treatment from infants with disabilities
who have life-threatening conditions,”
42 U.S.C. § 5106a(b)(2)(C) -- a term
which, to ensure adequate protection, is
defined with considerable specificity in
the statute, 42 U.S.C. §5106g(5).
The PRA could also have problematic
effects with respect to the status of
human embryos who live in laboratories
rather than in the womb. NRLC has
advocated for laws that recognize such
human embryos as members of the human
family. Louisiana, for example, has
enacted legislation which declares every
such human embryo to be a “juridical
person,” and asserts an independent
state interest in protecting them from
exploitation. Under the PRA, however,
the ability of a state to enforce such a
policy could be severely compromised.
There is nothing in the PRA to
contradict Louisiana’s assertion
that the human embryo is a “juridical
person” for state law purposes – but the
PRA arguably could turn this virtue into
a liability by giving the parents a
“fundamental right” to determine what
happens to “their” embryos. If the
parents decide to exercise that right by
donating their children for medical
research, for example, Louisiana would
find it difficult to convince a federal
judge that there is a “governmental
interest of the highest order” that
would trump the parental right-to-decide
– a right that the PRA would have raised
to the highest level.
Amending the Constitution is a
serious matter. It changes things. It is
mere evasion, or at best wishful
thinking, to recite old case law as if
it would constrain the judicial
applications of a sweeping new
constitutional imperative – and
especially inadvisable to rely on court
rulings which themselves lack any real
basis in the text of the Constitution.
Therefore, NRLC believes that the PRA
should be revised to explicitly affirm
that government can step in when
necessary to prevent violations of a
child’s intrinsic right to life, and
also to preserve the right of a minor to
protect the unborn child who she carries
in her womb. To be effective, such
language must be broad enough to allow
for government actors to intervene to
protect children even when they fall
into categories that many people,
including many judges, might wish to
regard as less than human – for example,
live-born abortion survivors, disabled
Baby Does, embryos in laboratories, and
human children in the womb.
So long as the PRA does not contain
explicit language to ensure protection
of a child’s independent right to life,
in the face of parental wishes adverse
to that right, NRLC respectfully urges
that you withhold your support. Thank
you for your consideration of NRLC’s
objections to the PRA as currently
drafted.
Respectfully submitted,
Douglas Johnson
Federal Legislative Director
Susan T. Muskett, J.D.
Senior Legislative Counsel
Mary Spaulding Balch, J.D.
State Legislative Director
Burke J. Balch, J.D.
Director
Robert Powell Center for Medical Ethics
National Right to Life Committee
