Hofstra Law Review


This article focuses on two Supreme Court decisions (Planned Parenthood v. Danforth and Bellotti v. Baird) in which the Court redefined the entire conception of children's rights. The article suggests that the Supreme Court used a construct of children's constitutional "rights" to restrict the rights of children. By doing so, the Court decisively derailed an incipient children's rights movement that had the potential to liberate children from the dominion of adults. In Danforth, the Court considered for the first time the constitutionality of a state statute that contained a mandatory parental consent provision. The Court struck down that part of the statute that prohibited unmarried minors from procuring abortions during the first trimester of their pregnancies without a parent's consent. Magisterially declaring that "minors as well as adults are protected by the Constitution and possess constitutional rights," five members of the Court concluded that a state could not subject a minor's choice to terminate her pregnancy to a parent's absolute veto "without a sufficient justification for the restriction."

Even though Danforth has never been overruled, this article seeks to demonstrate that current law does not afford minors a constitutional right to terminate a pregnancy. Ever since Danforth, commentators have attempted to develop a coherent theory of the constitutional rights of children by treating the adolescent abortion cases as if they advanced children's constitutional rights. For the most part, these commentators have failed. But the failure did not stem from any deficit in reasoning. Rather, the fault lay with the underlying premise: that those cases do advance children's constitutional rights. The article's principal thesis is that these abortion cases are not really about constitutional rights of children in the first place.

Much flows from this. If correct, this would require a substantial reappraisal of the broader tapestry of constitutional rights of children. The larger network of doctrine and constitutional theory lacks a consistency which in no small part is the consequence of classifying the abortion cases within the subject of constitutional rights. Ultimately, we will be able to identify a more coherent theory of children's rights if we are able to categorize the abortion cases correctly. The article finally seeks to demonstrate that the abortion decisions are best understood as a conservative Court's efforts to create rules that allow pregnant minors to obtain abortions while ensuring that those rules will not be used to advance children's claims for greater constitutional rights in other areas of the law.

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