Politics & Policy

Supremely Inconsistent

The Supreme Court can't make up its mind about the moral capacities of kids.

The Supreme Court recently announced that in the fall it will revisit the question of parental-notification laws and abortion rights for minors. The case, Ayotte v. Planned Parenthood, involves a challenge to a New Hampshire law requiring a parent or guardian to be notified at least 48 hours before an abortion is performed on a minor. Two years ago, the U.S. Circuit Court of Appeals for the First Circuit struck down the law because it failed to provide an exception to protect the mother’s health in the event of a medical emergency.

Ayotte v. Planned Parenthood is noteworthy for several reasons, including its links with Roper v. Simmons, decided by the Supreme Court on March 1. The two cases raise important questions about how the Supreme Court characterizes children and adolescents when resolving constitutional controversies.

In Roper, the Supreme Court ruled that executing juvenile murderers between the ages of 16 and 18 violates the Eighth Amendment’s ban on cruel and unusual punishments. (In 1988, the Court held that the Eighth Amendment forbids executing minors under 16.) Many people applauded Roper as enlightened policy; others condemned the decision as yet another instance of the judicial usurpation of legislative authority. Regardless of one’s view, a large problem resides in the majority opinion. Specifically, the Roper majority treats the moral and psychological capacities of children differently than in previous cases where legislators sought to protect children from adverse moral influences.

One dimension of this inconsistency was pointed out by dissenting Justice Antonin Scalia, who observed that the Court sometimes regards 16- to 18-year-olds as sufficiently mature to make adult decisions. As an example, Scalia cited two cases from the 1970s in which abortion rights for minors were upheld and parental-notification laws curtailed. This, however, is just the crest of the hill, and anyone who assays the Court’s views for the last 40 years on the moral capacities of children will see that the Court now finds itself in a morass.

In reaching its conclusion in Roper, the Court reasoned that minors between 16 and 18 are psychologically and morally underdeveloped. They lack the maturity of adults and “are more vulnerable or susceptible to negative influences and outside pressures.” Because of that underdevelopment, they are less culpable than adults are for the commission of certain crimes. Thus, even though 17-year-old Christopher Simmons seemed fully rational when committing a heinous, premeditated murder, the state of Missouri could not execute him.

No one will dispute that young persons lack the full moral development of adults. Most people also believe that the typical 16-year-old has a more developed capacity for moral reflection than does the typical ten-year-old. The Court conceded as much in Roper. But, wanting to stress the “comparative immaturity and irresponsibility” of 16- to 18-year-olds in relation to adults, the Court noted that most states prohibit persons under 18 from voting, performing jury duty, or marrying without parental permission.

This, however, is only part of the story, and it is impossible to avoid the conclusion that several justices will readily alter their account of children if such a change would promote their social agenda. Justice Scalia mentioned abortion rights; he could have also cited the Court’s decision in Carey v. Population Services International (1977), which gave minors the rights to buy and use contraceptives. Beyond this realm, two other areas of the law should be mentioned.

Regarding the constitutionality of religious exercises in public schools, the Supreme Court has developed a theory of “indirect coercion,” in which children are portrayed as psychologically frail and incapable of deciding whether they truly wish to participate in the exercise. In some instances, the resolution of the controversy depends crucially on the image of children. In Lee v. Weisman (1992), for example, the Court ruled that a Rhode Island public high school violated the Establishment Clause by allowing a rabbi to deliver a benediction to graduating seniors. The Court worried that adolescent “peer pressure” would force some students to stand in respectful silence during the benediction, an action that others might interpret as an “endorsement” of the rabbi’s message. According to the Court, this left “dissenting” students in a morally intolerable position.

The picture of the psychologically fragile adolescent in Lee v. Weisman accords with the view presented in Roper v. Simmons. But when adult free-speech rights are at stake and children happen to be part of the audience, the Court is likely to pretend that they are unaffected by what they see or hear. In cases such as Cohen v. California (1971), Erznoznik v. City of Jacksonville (1975), and United States v. Playboy Entertainment Group Inc. (2000), the Court expanded free-speech free rights for adults while allowing adolescents and very young children to be exposed to a four-letter epithet on a man’s jacket, R-rated movies at a drive-in theatre, and hard-core pornography on cable television channels. In each case, the Court remarked that all persons, including the young, were free to “avert their eyes.” But if Roper’s account of the relative immaturity of adolescents is correct, this expectation is implausible. After all, if a 17-year-old murderer is morally impressionable, so too are youths five and ten years younger. And no one should expect them to display adult-like self-discipline and “look away.”

These issues are not going to disappear. Last year, in Ashcroft v. ACLU, the Court invalidated the Child Online Protection Act, even though it imposed a modest burden (namely, having some form of positive identification) on adults seeking access to commercial websites offering pornography. While the majority opinion in Ashcroft did not advise children to “avert their eyes,” it played down their impressionability. To have done otherwise could have led to the unthinkable: adults wanting to view on-line pornography might have been inconvenienced.

All of this brings us back to Ayotte v. Planned Parenthood, the outcome of which may depend on the imagery the Supreme Court develops. Will the Court emphasize the “comparative immaturity” of minors–and the corresponding importance of the parent-daughter bond–and uphold the New Hampshire law? Or will it stress the so-called autonomy of pregnant minors and strike down the law? In view of the Court’s previous inconsistencies, and barring any big changes in its composition, bet on the latter.

David L. Tubbs is a fellow of the Witherspoon Institute.


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