Rebecca Corneau’s first sonJeremiah, died just minutes after birth when she and her husband refused to suction fluid from his mouth and throat. They attributed the child’s choking to “God’s will.” Rebecca and her husband are members of the Attleboro cult, a group that refuses medical attention. The same year the son of two fellow cult members died after being placed on a special “diet.” They essentially starved him to death.
Rebecca became pregnant again that same year (1999). Authorities became concerned that this child too might die of neglect. In August 2000 Massachusetts Juvenile Court judge Kenneth P. Nasif ordered the eight-and-a-half-month-pregnant mother to submit to a medical exam to ensure the safety of her second child. After she refused, Judge Nasif ordered her to remain in state custody until the child was born. In handing down the order, Nasif said he knew what the unborn fetus would say to him: “I don’t want to die like my brother.”
Judge Nasif’s ruling unleashed a wave of protests throughout the state. Women’s groups claimed that Nasif was unduly interfering with reproductive freedom. Civil liberties groups objected to the ruling on religious liberty grounds. The American Civil Liberties Union (ACLU) went so far as to submit a friend-of-the-court brief. Sarah Wunsch, an ACLU attorney, summed up the group’s position, saying, “The law does not require parents to undergo medical procedures to benefit their born children. It certainly cannot force a pregnant woman to be treated on behalf of her fetus.” Furthermore: “The state could not order a father, for example, to donate a kidney to his 12-year-old daughter; the state could not order a mother to donate bone marrow to her 3-year-old son; nor does the state have the authority to order a pregnant woman to undergo any kind of prenatal medical examinations or care on behalf of herself or her fetus.”
Andi Mullin, president of the Boston chapter of the National Organization for Women (NOW), told the Boston Herald that Corneau has the right to “make any decision about health care that she wants to make” and called Judge Nasif’s ruling “un-American.”
BALANCING RIGHTS
In recognizing the interest of the life of an unborn child in the face of religious liberty and privacy concerns, Judge Nasif has illustrated a longstanding dilemma of constitutional law—what to do when two competing interests, both legitimate under the Constitution, collide. Of course, critics of the decision are unwilling to admit any more than a token concern for the life of the unborn child. But in so doing, they miss the fundamental import of Judge Nasif’s decision.
In general, the criticism of such groups as the ACLU and NOW does not recognize that no constitutional right is absolute. Their positions imply that Rebecca’s privacy right cannot be restricted or trumped by any other person or entity’s interest. But a simple analysis of the historic treatment of the various rights guaranteed by the Constitution—in addition to the Supreme Court’s own jurisprudence on a woman’s right to privacy—reveals the shallowness of this position.
Initially let’s consider the First Amendment. The Supreme Court has historically recognized numerous interests that may legitimately compete with the right of free speech. Even its mode of analysis suggests that free speech is not always free. The Court’s forum doctrine varies the level of protection afforded, depending on the type of forum in which the speech occurs. Public parks, for example, receive the highest level of protection, while other public facilities and sponsored events receive varying degrees of protection, ranging from the limited public forum to the nonpublic forum. Depending on the forum in which one finds oneself, the limits on speech can range from simple decibel restrictions to broad-based content barriers.
In the course of its free speech jurisprudence, the Court has allowed reasonable “time, place, and manner” restrictions on speech. It has restricted student speech when that speech has been deemed “disruptive” by public school officials and has refused to hear cases in which seemingly innocent speech has been banned by so-called zero-tolerance policies.
The Court’s attitude toward the religion clauses has been similarly flexible. In 1990 the Court in Employment Division v. Smith (494 U.S. 872) ruled that laws of general applicability are not suspect under the First Amendment, even when they restrict the religious faith of a particular individual or group. More recently the Court has upheld a public entity’s policy of contributing instructional material to sectarian private schools, despite the possible establishment clause violation involved.
The Second Amendment has met a similar fate. While the Supreme Court has yet to rule on the precise contours of its protections, legislation to restrict the sale, ownership, and use of guns not only exists but is vigorously enforced by both liberal and conservative administrations. A key feature of the recent presidential campaign was Al Gore’s promise to promote more gun laws and George W. Bush’s assertion that already existing laws should be enforced more uniformly.
Virtually every single constitutional freedom is treated in this flexible manner. The Supreme Court continually recognizes that there is a need to balance, for example, the interests of preserving a safe and orderly society with the interests protected by the Bill of Rights. Clearly there are instances in which the Court’s balancing agenda weighs too heavily against the Constitution. One such example is the Smith decision, noted above for its restriction on the free exercise of religion. The mere fact that the Court at times reaches the wrong decision, however, does not undermine a basic truth of constitutional law. That is, constitutional rights do not exist in a vacuum; they must be balanced against the interests of third parties who will inevitably be affected by a particular citizen’s exercise of his or her rights.
In fact, this point is drilled home by the Supreme Court’s own jurisprudence in the area of a woman’s right to privacy. Consider this line from the plurality opinion in Planned Parenthood v. Casey (505 U.S. 833 [1992]): “The woman’s liberty is not so unlimited . . . that from the outset the state cannot show its concern for the life of the unborn, and at a later point in the fetal development the state’s interest in life has sufficient force so that the right of the woman to terminate the pregnancy can be restricted.” The Court then stated that “sufficient force” occurs when the fetus reaches the stage of viability.
But the Court didn’t stop with this assertion. Apparently concerned that its message might be muddled by future spin doctors, it reiterated the balancing point. “It must be remembered,” said the Court, “that Roe v. Wade speaks with clarity in establishing not only the woman’s liberty but also the state’s ‘important and legitimate interest in potential life.’”
The Court went on to reject Roe’s trimester framework, which it felt didn’t give states enough flexibility in legislating restrictions on abortion. In the words of the Court, Roe “undervalues the state’s interest in the potential life within the woman.”
These statements, lifted directly from the most important abortion decision since Roe itself, clearly illustrate the Court’s dedication to respecting a state’s interest in the life and potential life of unborn children.
Seen in light of these precedents, Judge Nasif’s decision is an appropriate response to a very difficult situation. He first attempted to have a nurse visit Rebecca. When this failed, he attempted to have her submit to a medical examination and ultimately concluded that the only sure course that would protect the life of her fetus was to keep her in the custody of state health-care officials.
Thus, the position of groups such as the ACLU obscures the true nature of the situation. The crux of the matter is that Judge Nasif recognized the life of the fetus as a balancing interest. This in itself is highly unusual. Despite the Supreme Court’s clear direction, very few judges are willing to make decisions that truly protect the life of an unborn child. This is not to say that judges should always intervene. There are clearly situations in which the evidence simply isn’t clear enough to warrant the drastic measures taken in this case. The mere chance that a fetus may not emerge healthy from the womb is not sufficient for government intervention. In this case, however, two children had already died, and others had been taken into state custody for their own protection.
In this sense Judge Nasif was merely committing the child to state custody before it was abused or allowed to die. Since Rebecca was eight and a half months pregnant, the child had clearly reached the point of viability—that critical stage at which the Supreme Court has recognized that states may take long steps toward preserving the life of its citizens. By this light, Judge Nasif is not a conservative meddler into the private decisions of a woman, but a liberal defender of the rights of abused children.
It is clear that Judge Nasif would intervene to protect the child should its life be in danger after leaving the womb. It simply doesn’t make sense to say that he should restrain from intervening when the child is still a few weeks away from breathing on its own—and the danger to its continuing existence has been so conclusively established.
STATE INTERVENTION TO PROTECT LIFE
Despite the focus on Rebecca’s right to privacy, the most difficult part of the decision involved its infringement on her religious liberty. She and her husband clearly have sincere religious beliefs regarding the appropriate use of medical care. Much like the decisions involving Christian Scientists and their refusal to seek medical attention for their children, this case raises a stark challenge to our own beliefs in the free exercise clause of the First Amendment.
One might be tempted to excuse this case on the grounds that its radical nature justifies intervention by the state. But the obvious rebuttal is that the Bill of Rights is most needed in just such radical situations—one might not need a First Amendment if all cases were easy.
Again, though, constitutional rights—even the right to religious liberty—are not absolute. Regardless of the strength of my beliefs, I may not take my neighbor’s property or interfere with their rights in any way. This argument essentially turns on the same point as that involving a woman’s right to privacy—the state has a clear interest in preserving the life of its citizens. Sacrificing one’s child, even when based on sincere religious beliefs, is simply not acceptable. It isn’t acceptable, because it involves a third party—the child—whose interests have to be considered as well. Thus, when the state intervenes to protect life, its actions are justified.
This argument could lead down a slippery slope. First the state simply intervenes to protect life from being abused or killed. One day, however, it might intervene to protect life from being nurtured in a social environment different from the prevailing norms of society—for example, restricting home schooling. That’s why a crucial distinction must be made—life is to be preserved for its own sake, not for any benefit or detriment it might bestow on society at large.
ONE DIM LIGHT FOR HUMAN LIFE
This is a crucial time in our nation’s history. While the very concept of life is being challenged by new technologies, such as cloning and other genetic engineering, life as we currently know it has been seriously devalued. The death penalty is zealously pursued in a number of states. The federal government has endorsed lab experiments involving human embryos. While the abortion rate had reached a plateau and even begun to decline in recent years, the introduction of RU-486 threatens to reverse that trend forever. Neither of the major political parties is dedicated to pursuing life-protecting policies. Even what is supposedly a conservative Supreme Court struck down the ban on an abortion procedure that is performed on a live, partially delivered child. Roe v. Wade is a firmly entrenched precedent, and even if it weren’t, it seems unlikely that the waning anti-abortion movement would be able to prevent abortion from being adopted in most states.
Judge Nasif’s ruling in this case represents one dim light still burning for human life in this country. His decision to protect a child is surrounded by an uproar that reveals just how far our society has fallen. A lone juvenile court judge struck a nerve simply by declaring that he wouldn’t let an unborn child die from willful lack of medical care.
None of this should be interpreted to mean that this isn’t a difficult case. As noted, there are serious questions about the tension between religious citizens practicing their faith as they see fit and the government’s duty to protect helpless members of society. Judge Nasif had to balance these competing freedoms in the best way he knew how. But the simple fact that he recognized unborn life as a weight on the scales of justice offers some hope. There is no reason to think that this decision will become the norm in America. But there is some room to hope that other judges, legislators, and presidents will recognize that life still has meaning under the Constitution and that while its value may be diminished, its heart continues to beat.
Constitutional attorney and author John W. Whitehead is founder and president of the Rutherford Institute.
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