Idaho's Throwback to Elizabethan England: Criminalizing a Civil Proceeding

Family Law Quarterly

Volumn 34, Issue 1, 2000, Pages 165-175

  Meinzer, Heidi ^a  

^a GEORGETOWN UNIVERSITY   (United States)

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EID: 0034562562     PISSN: 0014729X     EISSN: None     Source Type: Journal    
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References (119)

1. See Quentin Hardy, Idaho Tests New Way to Curb Teen Pregnancy, WALL ST. J., July 8, 1996, at A1, also available as Quentin Hardy, In Idaho, A Different Approach, 1996 WL 2529913.
2. See Quentin Hardy, Idaho Tests New Way to Curb Teen Pregnancy, WALL ST. J., July 8, 1996, at A1, also available as Quentin Hardy, In Idaho, A Different Approach, 1996 WL 2529913.
3. See Robin Abcarian, Is This Any Way to Stop the Teenage Pregnancy Crisis?, L.A. TIMES, Feb. 19, 1997, at E1, available in 1997 WL 2183664.
4. See Robin Abcarian, Is This Any Way to Stop the Teenage Pregnancy Crisis?, L.A. TIMES, Feb. 19, 1997, at E1, available in 1997 WL 2183664.
5. See David Diamond, When Having Babies is a Crime, USA WEEKEND, February 16, 1997, available in 1997 WL 7698677.
6. See David Diamond, When Having Babies is a Crime, USA WEEKEND, February 16, 1997, available in 1997 WL 7698677.
7. See Abcarian, supra note 2.
8. See id. See also Diamond, supra note 3.
9. See Diamond, supra note 3.
10. See James Brooke, An Old Law Chastises Pregnant Teen-Agers, N. Y. TIMES, Oct. 28, 1996, at A10 ("At the first prosecution of Miss Smisek, protests erupted, with pickets on the courthouse lawn. At a protest over Miss Smisek's sentencing, in May, one woman held a sign reading, 'She's pregnant, why make her criminal?' ").
11. See Hardy, supra note 1 (quoting Bruce Birch, a Payette County prosecutor) ("If you take on one case, you should take on them all. . . . If I used that [fornication] law, I'd have to triple my staff.").
12. See, e.g., Diamond, supra note 3 (questioning whether punitive approaches to convincing people to change their sexual behavior are effective); Abcarian, supra note 2 (advocating sex education and contraception over after-the-fact prosecutions); Hardy, supra note 1 (stating that "some . . . wonder if it's the best approach to curbing teen sex, welfare or crime.").
13. See, e.g., Diamond, supra note 3 (questioning whether punitive approaches to convincing people to change their sexual behavior are effective); Abcarian, supra note 2 (advocating sex education and contraception over after-the-fact prosecutions); Hardy, supra note 1 (stating that "some . . . wonder if it's the best approach to curbing teen sex, welfare or crime.").
14. See, e.g., Diamond, supra note 3 (questioning whether punitive approaches to convincing people to change their sexual behavior are effective); Abcarian, supra note 2 (advocating sex education and contraception over after-the-fact prosecutions); Hardy, supra note 1 (stating that "some . . . wonder if it's the best approach to curbing teen sex, welfare or crime.").
15. See Ellen Goodman, Teen Parents Don't Need Criminal Records, THE IDAHO STATESMAN, July 16, 1996, available in 1996 WL 11076001.
16. See Ellen Goodman, Teen Parents Don't Need Criminal Records, THE IDAHO STATESMAN, July 16, 1996, available in 1996 WL 11076001.
17. While I prefer the term "nonmarital child" in place of "bastard" or "illegitimate child," I use these other terms for accuracy during the historical analysis.
18. IDAHO CODE §§ 7-1101 to 7-1125 (1947 & Supp. 1998) [hereinafter Paternity Act].
19. 13 Ed.1, st.4 (1285).
20. See 2 ROBERT PHILLIMORE, THE ECCLESIASTICAL LAW OF THE CHURCH OF ENGLAND 1081 (Vol. II 1873).
21. See RALPH HOULBROOKE, CHURCH COURTS AND THE PEOPLE DURING THE ENGLISH REFORMATION 1520-1570, 79 (1979).
22. Id. at 76.
23. See IV WILLIAM BLACKSTONE, COMMENTARIES ON THE LAWS OF ENGLAND 64 & n.24 (21st ed. 1844) [hereinafter IV BLACKSTONE ].
24. See GEORGE HASKINS, LAW AND AUTHORITY IN EARLY MASSACHUSETTS: A STUDY IN TRADITION AND DESIGN 90 (1968).
25. Id. at 183.
26. See id. at 153.
27. Id.
28. Id.
29. For a perfect example, see MASS. GEN. LAWS ANN. ch. 272 (West 1958 & Supp. 1998) ("Crimes against Chastity, Morality, Decency and Good Order"), citing as criminal offenses: § 6, Penalty for Maintaining a House of Prostitution; § 16, Lascivious Cohabitation and Lewdness; § 18, Fornication; § 22, Concealment by Parent of Death of Child Born Out of Wedlock; § 23, Joinder of Murder and Concealment; § 24, Keeping House of Ill Fame; § 53, Indecent Exposure.
30. See Traci Shallbetter Stratton, Note, No More Messing Around: Substantive Due Process Challenges to State Laws Prohibiting Fornication, 73 WASH. L. REV. 767, 769 (1998) (citing DONAL E.J. MACNAMARA & EDWARD SAGARIN, SEX, CRIME AND THE LAW 186 (1977)).
31. See Traci Shallbetter Stratton, Note, No More Messing Around: Substantive Due Process Challenges to State Laws Prohibiting Fornication, 73 WASH. L. REV. 767, 769 (1998) (citing DONAL E.J. MACNAMARA & EDWARD SAGARIN, SEX, CRIME AND THE LAW 186 (1977)).
32. See id. at 770 & n.22 (listing the laws of the District of Columbia, Georgia, Idaho, Illinois, Massachusetts, Minnesota, Mississippi, North Carolina, North Dakota, South Carolina, Utah, Virginia, West Virginia, and Wisconsin).
33. However, crimes such as indecent exposure and prostitution have found their way into other areas of Idaho's statute books.
34. See IDAHO CODE §§ 18-6601 to 18-6608 (1947; Supp. 1998).
35. Id. § 18-6603.
36. For a look at how the English ecclesiastical courts also had their hand in the bastardy laws, see, e.g., HOULBROOKE, supra note 15, at 75-79, and MARTIN INGRAM, CHURCH COURTS, SEX AND MARRIAGE IN ENGLAND 1570-1640, at 160-163, 259- 281, 370-371 (1987).
37. For a look at how the English ecclesiastical courts also had their hand in the bastardy laws, see, e.g., HOULBROOKE, supra note 15, at 75-79, and MARTIN INGRAM, CHURCH COURTS, SEX AND MARRIAGE IN ENGLAND 1570-1640, at 160-163, 259-281, 370-371 (1987).
38. See 1 WILLIAM BLACKSTONE, COMMENTARIES ON THE LAWS OF ENGLAND 458 (21st ed. 1844) [hereinafter BLACKSTONE VOL. I] (citing 18 Eliz. c.3 (1576); 7 Jac.1 c.4 (1609); 3 Car.1 c.4, § 15 (1627); 13 & 14 Car.2 c.12, § 19 (1673); 6 Geo.2 c.31 (1733)). See also 1 RICHARD BURN, THE JUSTICE OF THE PEACE AND PARISH OFFICER 243-268 (1820 & Supp. 1823).
39. See 1 WILLIAM BLACKSTONE, COMMENTARIES ON THE LAWS OF ENGLAND 458 (21st ed. 1844) [hereinafter BLACKSTONE VOL. I] (citing 18 Eliz. c.3 (1576); 7 Jac.1 c.4 (1609); 3 Car.1 c.4, § 15 (1627); 13 & 14 Car.2 c.12, § 19 (1673); 6 Geo.2 c.31 (1733)). See also 1 RICHARD BURN, THE JUSTICE OF THE PEACE AND PARISH OFFICER 243-268 (1820 & Supp. 1823).
40. See 1 WILLIAM BLACKSTONE, COMMENTARIES ON THE LAWS OF ENGLAND 458 (21st ed. 1844) [hereinafter BLACKSTONE VOL. I] (citing 18 Eliz. c.3 (1576); 7 Jac.1 c.4 (1609); 3 Car.1 c.4, § 15 (1627); 13 & 14 Car.2 c.12, § 19 (1673); 6 Geo.2 c.31 (1733)). See also 1 RICHARD BURN, THE JUSTICE OF THE PEACE AND PARISH OFFICER 243-268 (1820 & Supp. 1823).
41. See 1 WILLIAM BLACKSTONE, COMMENTARIES ON THE LAWS OF ENGLAND 458 (21st ed. 1844) [hereinafter BLACKSTONE VOL. I] (citing 18 Eliz. c.3 (1576); 7 Jac.1 c.4 (1609); 3 Car.1 c.4, § 15 (1627); 13 & 14 Car.2 c.12, § 19 (1673); 6 Geo.2 c.31 (1733)). See also 1 RICHARD BURN, THE JUSTICE OF THE PEACE AND PARISH OFFICER 243-268 (1820 & Supp. 1823).
42. See 1 WILLIAM BLACKSTONE, COMMENTARIES ON THE LAWS OF ENGLAND 458 (21st ed. 1844) [hereinafter BLACKSTONE VOL. I] (citing 18 Eliz. c.3 (1576); 7 Jac.1 c.4 (1609); 3 Car.1 c.4, § 15 (1627); 13 & 14 Car.2 c.12, § 19 (1673); 6 Geo.2 c.31 (1733)). See also 1 RICHARD BURN, THE JUSTICE OF THE PEACE AND PARISH OFFICER 243-268 (1820 & Supp. 1823).
43. See 1 WILLIAM BLACKSTONE, COMMENTARIES ON THE LAWS OF ENGLAND 458 (21st ed. 1844) [hereinafter BLACKSTONE VOL. I] (citing 18 Eliz. c.3 (1576); 7 Jac.1 c.4 (1609); 3 Car.1 c.4, § 15 (1627); 13 & 14 Car.2 c.12, § 19 (1673); 6 Geo.2 c.31 (1733)). See also 1 RICHARD BURN, THE JUSTICE OF THE PEACE AND PARISH OFFICER 243-268 (1820 & Supp. 1823).
44. See 1 WILLIAM BLACKSTONE, COMMENTARIES ON THE LAWS OF ENGLAND 458 (21st ed. 1844) [hereinafter BLACKSTONE VOL. I] (citing 18 Eliz. c.3 (1576); 7 Jac.1 c.4 (1609); 3 Car.1 c.4, § 15 (1627); 13 & 14 Car.2 c.12, § 19 (1673); 6 Geo.2 c.31 (1733)). See also 1 RICHARD BURN, THE JUSTICE OF THE PEACE AND PARISH OFFICER 243-268 (1820 & Supp. 1823).
45. See BLACKSTONE VOL. I, supra note 30, at 458. See also BURN, supra note 30, at 243 (citing 6 Geo.2 c.31, § 1 (1733)).
46. See BLACKSTONE VOL. I, supra note 30, at 458. See also BURN, supra note 30, at 243-244.
47. See BLACKSTONE, VOL. IV, supra note 17, at 65.
48. 18 El. c.3 (1576).
49. See BLACKSTONE, VOL. IV, supra note 17, at 65.
50. Id. (footnote omitted).
51. See id. at 65-66 (referring to 7 Jac.1 c.4 (1609)).
52. See id. at 65-66 & n.26 (referring to 4&5 Will.4 c.76, § 69 (1834)).
53. See LYNN HOLLEN LEES, THE SOLIDARITIES OF STRANGERS: THE ENGLISH POOR LAWS AND THE PEOPLE 1700-1948, 56 (1998).
54. See id. at 57.
55. Id.
56. Lynn Hollen Lees discusses the example of: Esther Herbert, a parishioner of the west London parish of Fulham, who in 1793 was pregnant with Samuel Gillingham's child. Parish officers, she later claimed, threatened to send her to prison for a year if she would not marry her child's father, and they threw him in jail to gain his consent. After both agreed to the proposal, the overseers provided a license, marriage at the parish church, and a wedding dinner. Unfortunately for the parish's plans to end their liability, Gillingham ran away after the dinner, leaving his new wife in parish hands. Id. at 58 (footnote omitted).
57. Carlotta P. Wells, Statutes of Limitations in Paternity Proceedings: Barring an "Illegitimate's" Right to Support, 32 AM. U. L. REV. 567, 572 (1983).
58. See HARRY KRAUSE, CHILD SUPPORT IN AMERICA 179-81 (1981). Krause explains that a father might want to initiate proceedings for visitation rights and other reasons.
59. See MASS. GEN. LAWS ANN. ch. 273, § 1 (1998 & Supp. 1998) (making non-support of a minor child a misdemeanor).
60. See KRAUSE, supra note 44, at 188.
61. See id. at 56.
62. See id. at 55.
63. Id. at 56.
64. See id. at 189.
65. See, e.g., State v. Knowles, 919 P.2d 1036 (Idaho 1996); Henderson v. State, 915 P.2d 6 (Idaho 1996); Johnson v. Studley-Preston, 812 P.2d 1216 (Idaho 1991); Crain v. Crain, 662 P.2d 538 (Idaho 1983); Isaacson v. Obendorf, 581 P.2d 350 (Idaho 1978); Comish v. Smith, 540 P.2d 274 (Idaho 1975).
66. See, e.g., State v. Knowles, 919 P.2d 1036 (Idaho 1996); Henderson v. State, 915 P.2d 6 (Idaho 1996); Johnson v. Studley-Preston, 812 P.2d 1216 (Idaho 1991); Crain v. Crain, 662 P.2d 538 (Idaho 1983); Isaacson v. Obendorf, 581 P.2d 350 (Idaho 1978); Comish v. Smith, 540 P.2d 274 (Idaho 1975).
67. See, e.g., State v. Knowles, 919 P.2d 1036 (Idaho 1996); Henderson v. State, 915 P.2d 6 (Idaho 1996); Johnson v. Studley-Preston, 812 P.2d 1216 (Idaho 1991); Crain v. Crain, 662 P.2d 538 (Idaho 1983); Isaacson v. Obendorf, 581 P.2d 350 (Idaho 1978); Comish v. Smith, 540 P.2d 274 (Idaho 1975).
68. See, e.g., State v. Knowles, 919 P.2d 1036 (Idaho 1996); Henderson v. State, 915 P.2d 6 (Idaho 1996); Johnson v. Studley-Preston, 812 P.2d 1216 (Idaho 1991); Crain v. Crain, 662 P.2d 538 (Idaho 1983); Isaacson v. Obendorf, 581 P.2d 350 (Idaho 1978); Comish v. Smith, 540 P.2d 274 (Idaho 1975).
69. See, e.g., State v. Knowles, 919 P.2d 1036 (Idaho 1996); Henderson v. State, 915 P.2d 6 (Idaho 1996); Johnson v. Studley-Preston, 812 P.2d 1216 (Idaho 1991); Crain v. Crain, 662 P.2d 538 (Idaho 1983); Isaacson v. Obendorf, 581 P.2d 350 (Idaho 1978); Comish v. Smith, 540 P.2d 274 (Idaho 1975).
70. See, e.g., State v. Knowles, 919 P.2d 1036 (Idaho 1996); Henderson v. State, 915 P.2d 6 (Idaho 1996); Johnson v. Studley-Preston, 812 P.2d 1216 (Idaho 1991); Crain v. Crain, 662 P.2d 538 (Idaho 1983); Isaacson v. Obendorf, 581 P.2d 350 (Idaho 1978); Comish v. Smith, 540 P.2d 274 (Idaho 1975).
71. Brooke, supra note 7.
72. HASKINS, supra note 18, at 272 & n.84.
73. See Hardy, supra note 1 (reporting that California and Connecticut have "both recently started programs to enforce statutory rape laws. [B]oth are aimed at men who skip out after getting teenage girls pregnant. [By contrast,] [t]he boyfriends in Emmet admit their deeds." [Emphasis added.]).
74. See id. (discussing charges brought against Michael Hopkins, although Hopkins "plans to reimburse the state for his girlfriend's medical costs.").
75. See id. (stating that Judge Petrie is writing a book called Parenting from the Bench, but refused to comment on the fornication cases in particular, replying, "I don't set the table, I just clean up the mess.").
76. See id. (stating that, to Varie, "the old law is a powerful new tool for combating teen pregnancy and related social ills. 'The cost isn't just in welfare,' he says. 'A male child of a single teen mother is three times more likely to go to jail as a child with two parents.' ").
77. See Diamond, supra note 3 (stating that "Smizek's [sic] belly was all the proof needed to convict her.").
78. See, e.g., Goodman, supra note 10. See also Hardy, supra note 1.
79. See, e.g., Goodman, supra note 10. See also Hardy, supra note 1.
80. See Duncan v. Louisiana, 391 U.S. 145, 156 (1968) (stating that the purpose of a jury trial is to prevent oppression by the government by providing a "safeguard against the corrupt or overzealous prosecutor and against the compliant, biased, or eccentric judge.").
81. See Diamond, supra note 3 (stating that Gem County has charged at least eight pregnant teens and their boyfriends with fornication, while Idaho has stepped up prosecutions of men for statutory rape and lewd conduct).
82. Hardy, supra note 1 (quoting Douglas Vane's opinion of Amanda Smisek).
83. See 42 U.S.C.A. § 603 (a)(2)(B)(i)(I) and (II) (Supp. 1998) (stipulating that the "bonus to reward [a state's] decrease in [its] illegitimacy ratio" will be $20 million if there are five eligible states and $25 million if there are fewer than five eligible states).
84. See Diamond, supra note 3 (referring to IDAHO CODE § 18-3301 et seq. (1947 & Supp. 1998) ("Sex Offender Registration Act")).
85. Diamond, supra note 3.
86. See Hardy, supra note 1.
87. See id.
88. Id.
89. Id. Note that this flies in the face of Varie' s purported goal of making the parents responsible for the upbringing of the child in order to save the taxpayers the financial burden of welfare payments. One must wonder how much Varie's prosecutions are costing Emmet residents, and whether, if the parents would have provided adequate support for the children without convictions, these prosecutions were even necessary.
90. See IDAHO CODE § 18-8401 et seq. (1947 & Supp. 1998) ("Juvenile Sex Offender Registration Notification and Community Right-to-Know Act").
91. Several insightful articles argue the unconstitutionality of sex laws in general. For examples, see Peter M. Cicchino, Reason and the Rule of Law: Should Bare Assertions of "Public Morality" Qualify as Legitimate Government Interests for the Purposes of Equal Protection Review, 87 GEO. L.J. 139 (1998); Michael E. Malamut, Proposal for Revision of Archaic Statutes Implicating Private Consensual Noncommercial Adult Sexual Conduct, 3 LAW & SEX. 45 (1993). For a discussion of the constitutionality of fornication laws in particular, compare Note, Constitutional Barriers to Civil and Criminal Restrictions on Pre- and Extramarital Sex, 104 HARV. L. REV. 1660, 1660 (1991) (arguing that "consensual heterosexual intercourse is a constitutionally protected activity") [hereinafter Constitutional Barriers], with Stratton, supra note 24, at 767 (arguing that "fornication statutes do not violate an individual's Fourteenth Amendment substantive due process rights.").
92. Several insightful articles argue the unconstitutionality of sex laws in general. For examples, see Peter M. Cicchino, Reason and the Rule of Law: Should Bare Assertions of "Public Morality" Qualify as Legitimate Government Interests for the Purposes of Equal Protection Review, 87 GEO. L.J. 139 (1998); Michael E. Malamut, Proposal for Revision of Archaic Statutes Implicating Private Consensual Noncommercial Adult Sexual Conduct, 3 LAW & SEX. 45 (1993). For a discussion of the constitutionality of fornication laws in particular, compare Note, Constitutional Barriers to Civil and Criminal Restrictions on Pre- and Extramarital Sex, 104 HARV. L. REV. 1660, 1660 (1991) (arguing that "consensual heterosexual intercourse is a constitutionally protected activity") [hereinafter Constitutional Barriers], with Stratton, supra note 24, at 767 (arguing that "fornication statutes do not violate an individual's Fourteenth Amendment substantive due process rights.").
93. Several insightful articles argue the unconstitutionality of sex laws in general. For examples, see Peter M. Cicchino, Reason and the Rule of Law: Should Bare Assertions of "Public Morality" Qualify as Legitimate Government Interests for the Purposes of Equal Protection Review, 87 GEO. L.J. 139 (1998); Michael E. Malamut, Proposal for Revision of Archaic Statutes Implicating Private Consensual Noncommercial Adult Sexual Conduct, 3 LAW & SEX. 45 (1993). For a discussion of the constitutionality of fornication laws in particular, compare Note, Constitutional Barriers to Civil and Criminal Restrictions on Pre- and Extramarital Sex, 104 HARV. L. REV. 1660, 1660 (1991) (arguing that "consensual heterosexual intercourse is a constitutionally protected activity") [hereinafter Constitutional Barriers], with Stratton, supra note 24, at 767 (arguing that "fornication statutes do not violate an individual's Fourteenth Amendment substantive due process rights.").
94. Several insightful articles argue the unconstitutionality of sex laws in general. For examples, see Peter M. Cicchino, Reason and the Rule of Law: Should Bare Assertions of "Public Morality" Qualify as Legitimate Government Interests for the Purposes of Equal Protection Review, 87 GEO. L.J. 139 (1998); Michael E. Malamut, Proposal for Revision of Archaic Statutes Implicating Private Consensual Noncommercial Adult Sexual Conduct, 3 LAW & SEX. 45 (1993). For a discussion of the constitutionality of fornication laws in particular, compare Note, Constitutional Barriers to Civil and Criminal Restrictions on Pre- and Extramarital Sex, 104 HARV. L. REV. 1660, 1660 (1991) (arguing that "consensual heterosexual intercourse is a constitutionally protected activity") [hereinafter Constitutional Barriers], with Stratton, supra note 24, at 767 (arguing that "fornication statutes do not violate an individual's Fourteenth Amendment substantive due process rights.").
95. See IDAHO CODE § 7-1110 (1947 & Supp. 1998) (allowing the department of health and welfare to bring paternity proceedings on behalf of the child).
96. See RICHARD POSNER & KATHERINE SILBAUGH, A GUIDE TO AMERICA'S SEX LAWS 98 (1996) (citing State v. Spanbauer, 322 N.W.2d 511 (Wis. App. 1982), as an example).
97. See RICHARD POSNER & KATHERINE SILBAUGH, A GUIDE TO AMERICA'S SEX LAWS 98 (1996) (citing State v. Spanbauer, 322 N.W.2d 511 (Wis. App. 1982), as an example).
98. See Constitutional Barriers, supra note 71, at 1662.
99. See DONAL MACNAMARA & EDWARD SAGARIN, SEX, CRIME AND THE LAW 187 (1977) (giving the example of the Naval Academy instituting, but eventually rescinding, disciplinary action over a pregnant woman, but not against her fiance, a Navy midshipman).
100. See POSNER & SILBAUGH, supra note 73, at 98-99 (citing Cooper v. French, 460 N.W.2d 2 (Minn. 1990)). See also Steve France, Not Under My Roof You Don't, A.B.A. J., April 1999, at 26-28.
101. See POSNER & SILBAUGH, supra note 73, at 98-99 (citing Cooper v. French, 460 N.W.2d 2 (Minn. 1990)). See also Steve France, Not Under My Roof You Don't, A.B.A. J., April 1999, at 26-28.
102. See POSNER & SILBAUGH, supra note 73, at 98-99 (citing Cooper v. French, 460 N.W.2d 2 (Minn. 1990)). See also Steve France, Not Under My Roof You Don't, A.B.A. J., April 1999, at 26-28.
103. See POSNER & SILBAUGH, supra note 73, at 99 (citing Jarrett v. Jarrett, 400 N.E.2d 421 (Ill. 1979) as an example).
104. See POSNER & SILBAUGH, supra note 73, at 99 (citing Jarrett v. Jarrett, 400 N.E.2d 421 (Ill. 1979) as an example).
105. See id.
106. MACNAMARA & SAGARIN, supra note 75, at 187.
107. See Cicchino, supra note 71, at 143 (arguing that "a bare assertion of public morality, apart from any empirical connection to the public welfare, fails to meet a minimal level of rationality for the purpose of equal protection review, and would have disastrous consequences in practice if accepted as a legitimate government interest"). But see Stratton, supra note 24, at 797 (arguing that "laws like those prohibiting fornication can powerfully reinforce, if not shape, the teachings of parents, families, teachers, religious communities and other persons who have the primary role in forming moral individuals"). However, Stratton herself concedes that "states should pass, but not necessarily enforce, fornication laws." Id. at 767.
108. See Cicchino, supra note 71, at 143 (arguing that "a bare assertion of public morality, apart from any empirical connection to the public welfare, fails to meet a minimal level of rationality for the purpose of equal protection review, and would have disastrous consequences in practice if accepted as a legitimate government interest"). But see Stratton, supra note 24, at 797 (arguing that "laws like those prohibiting fornication can powerfully reinforce, if not shape, the teachings of parents, families, teachers, religious communities and other persons who have the primary role in forming moral individuals"). However, Stratton herself concedes that "states should pass, but not necessarily enforce, fornication laws." Id. at 767.
109. See Susan Frelich Appelton, When Welfare Reforms Promote Abortion: "Personal Responsibility," "Family Values," and the Right to Choose, 85 GEO. L.J. 155, 177-78 (1996). See also Judith Havemann, Fewer Births for N.J. Welfare Mothers: Study Says Benefits Cap Spurred Family Planning, Abortions, WASH. POST, Nov. 3, 1998, at A7 (reporting that New Jersey partially attributes a drop in the birth rate among welfare mothers to an increase of almost 1,500 more abortions in response to a 1991 enactment of a "family cap" denying additional benefits to mothers having more children while on welfare).
110. See Susan Frelich Appelton, When Welfare Reforms Promote Abortion: "Personal Responsibility," "Family Values," and the Right to Choose, 85 GEO. L.J. 155, 177-78 (1996). See also Judith Havemann, Fewer Births for N.J. Welfare Mothers: Study Says Benefits Cap Spurred Family Planning, Abortions, WASH. POST, Nov. 3, 1998, at A7 (reporting that New Jersey partially attributes a drop in the birth rate among welfare mothers to an increase of almost 1,500 more abortions in response to a 1991 enactment of a "family cap" denying additional benefits to mothers having more children while on welfare).
111. See Abcarian, supra note 2 (telling the story of Kirsten Sundberg, "a champion high school golfer in Oregon who . . . in November 1995, at 17, . . . gave birth to a baby at her home in her bathroom as her parents slept." Kirsten pleaded guilty to juvenile charges of criminally negligent homicide and concealing a birth. When it was discovered that the baby was born in breech position and had suffocated during birth, the prosecutor planned to recommend probation at Kirsten's sentencing.).
112. See HASKINS, supra note 18, at 153.
113. See id. at 272-73 & n.84.
114. See Hardy, supra note 1. See also Goodman, supra note 10.
115. See Hardy, supra note 1. See also Goodman, supra note 10.
116. IDAHO CODE § 7-1111(a) (1947 & Supp. 1998).
117. Id. § 7-1121(3).
118. 42 U.S.C. § 654(4) (1983).
119. Lisa Knott Garfinkle, Comment, Two Generations at Risk: The Implications of Welfare Reform for Teen Parents and Their Children, 32 WAKE FOREST L. REV. 1233, 1242 (1997).