CNN reports that a New York Judge has ordered a couple to not have any more children.
"The mother was found to have neglected her four children, ages 1, 2, 4 and 5. All three children who were tested for cocaine tested positive, according to court papers.
...
A case worker testified that the parents ignored an order to get mental health treatment and attend parenting classes after the 1-year-old was born.The mother was still in the hospital after giving birth to her fourth child in March 2003 when authorities took the infant, according to court papers. Investigators said the mother was unprepared to care for the infant."
I'm no expert on anything Con Law related, believe me, but I'm not entirely sure that it is a "blatantly unconstitutional" order.
First I'd like to go on record as saying that I think the court's reasoning is terrible. "This court believes the constitutional right to have children is overcome when society must bear the financial and everyday burden of care." This reasoning seems suspect on Equal Protection grounds, because it discriminates against the class of "poor people." In addition, I find any argument that justifies the taking of a liberty with a "cost to society" rationale to be dubious (and dangerous) at best. Think of it like this: using that reasoning, the state could make a law that reads "it is illegal for those on welfare to jog," and justify it using a convoluted health care cost argument. "Studies show that x% of joggers get knee injuries; the state has to pay health care costs for people on welfare; the state has a strong interest in keeping health care costs down; so it follows that the the state has an interest in restricting the right to jog."
So, on the Judge's reasoning, the order is unconstitutional. But can't the order be justified on other grounds? Don't we already order some sex abusers to undergo chemical sterilization as a condition of their release? (keep in mind that here, the judge didn't order sterilization, but instead offered to provide it free of charge). I don't know what the penalties are for child neglect, child endangerment, cocaine possession, or furnishing cocaine to a child, but I'd think that they are be pretty severe. Would the Judge be within the bounds of the constitution if these parents were charged criminally, sentenced to X years, and the Judge "worked a deal" with the parents that they could skip the jail time on the same condition of not having kids in the future? When I think of it that way, I don't see a constitutional issue.
Does anyone who know more than I do about Con Law or Crim Law have any insight?
Posted by jkhat at May 9, 2004 04:37 PM | TrackBack