A constitutional birthright: The state, parentage, and the rights of newborn persons

UCLA Law Review

Volumn 56, Issue 4, 2009, Pages 755-835

  Dwyer, James G ^a  

^a Dept of Economics and Thomas Jefferson Program in Public Policy at the College of William and Mary

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EID: 66849122103     PISSN: 00415650     EISSN: None     Source Type: Journal    
DOI: None     Document Type: Review

References (459)

1. Estimating the percentage or number of birth parents who fall under the description "manifestly unfit" is difficult. Because states do not seek to identify such birth parents, they do not amass such statistics, and no private organization or individual has done so either. However, several relevant figures suggest that the number is substantial. Roughly 40 percent of the 300 million U.S. population is of reproducing age.
2. See U.S. CENSUS BUREAU, 2006 AMERICAN COMMUNITY SURVEY, tbl. S0101. Age and Sex, http://factfinder.census.gov/servlet/STTable?-bm=y&-geo-id= 01000US&-qr-name=ACS-2006-EST-GO0-S0101 (listing 42.2 percent of the population as being between the ages of 15 and 44). In 2007, an estimated 9.3 million people in the U.S. used illicit drugs other than marijuana. SUBSTANCE ABUSE AND MENTAL HEALTH SERV. ADMIN., DEPT OF HEALTH AND HUMAN SERV., RESULTS FROM THE 2007 NATIONAL SURVEY ON DRUG USE AND HEALTH: NATIONAL FINDINGS 17, http://www.oas.samhsa. gov/nsduh/2k7nsduh/2k7Results.pdf. In 1999, researchers estimated that several million children have parents who are drug addicts and twenty-eight million have alcoholic parents.
3. See, e.g., NAT'L CTR. ON ADDICTION & SUBSTANCE ABUSE, COLUMBIA UNIV., NO SAFE HAVEN: CHILDREN OF SUBSTANCE-ABUSING PARENTS, at a (1999), http:// www.casacolumbia.org/absolutenm/articlefiles/379-No%20Safe%20Haven.pdf. Roughly 1 percent of all American adults are in prison.
4. See PEW CTR. ON THE STATES, ONE IN 100: BEHIND BARS IN AMERICA 2008, at 5 (2008), available at http://www.pewcenteronthestates.org/uploadedFiles/8015PCTS- Prison08-FINAL-2-l-l-FORWEB.pdf. A 2000 report estimated that over half of State and Federal prisoners are parents of minor children.
5. See BUREAU OF JUSTICE STATISTICS, U.S. DEPT OF JUSTICE, INCARCERATED PARENTS AND THEIR CHILDREN 2 (2000), http://www.ojp.usdoj.gov/bjs/pub/pdf/ iptc.pdf. It is estimated that roughly forty thousand women enter prison each year, 5 percent of whom, or two thousand women, are pregnant at the time of entry.
6. See Adam Liptak, Prisons Often Shackle Pregnant Inmates in Labor, N.Y. TIMES, March 2, 2006, available at http://www.nytimes.com/ 2006/03/02/national/02shackles.html. Child protective services agencies identify almost a million maltreated children each year.
7. See ADMIN. ON CHILDREN, YOUTH AND FAMILIES, U.S. DEP'T OF HEALTH & HUMAN SERV., CHILD MALTREATMENT 2006, at 25 (2008), available at http:// www.acf.hhs.gov/programs/cb/pubs/crn06/chapter3. htmtfsubjects. In 2006, roughly fifteen hundred children died of abuse or neglect.
8. Id. at 65. Almost 14 percent of the fatalities were caused by parents who had been subject to child protection intervention in the prior five years.
9. Id. at 67.
10. See Adoption and Safe Families Act of 1997, Pub. L. No. 105-89, 111 Stat. 2115 (2008) (codified in 42 U.S.C. §§ 673b, 678, 679b (2000)). For presentation of the empirical literature on parental unfitness and the effects of maltreatment on infants, and for discussion of state and federal laws governing child protection and their shortcomings, see James G. Dwyer, The Child Protection Pretense: States' Continued Consignment of Babies to Unfit Parents, 93 MlNN. L. REV. 407 (2008).
11. For presentation of the studies documenting social worker and judicial resistance to termination of parental rights, see id. at 146-51,159-61.
12. 489 U.S. 189(1989).
13. See, e.g., Jennifer S. Hendricks, Essentially a Mother, 13 WM. & MARY J. WOMEN & L. 429,453-66 (2007);
14. Kari E Hong, Parens Patriarchy]: Adoption, Eugenics, and Same-Sex Couples, 40 CAL. W. L. REV. 1, 63-76 (2003);
15. David D. Meyer, Family Ties: Solving the Constitutional Dilemma of the Faultless Father, 41 ARIZ. L REV. 753 (1999);
16. Scott A. Resnik, Seeking the Wisdom of Solomon: Defining the Rights of Unwed Fathers in Newborn Adoptions, 20 SETON HALL LEGIS. J. 363 (1996);
17. Philip S. Welt, Adoption and the Constitution: Are Adoptive Parents ReaRy "Strangers Without Rights.?," 1995 ANN. SURV. AM. L. 165;
18. Amy Wilkinson-Hagen, The Adoption and Safe Families Act of 1997: A Collision of Parens Patriae and Parents' Constitutional Rights, 11 GEO. J. ON POVERTY L & POL'Y 137 (2004).
19. Several court decisions sparked such scholarly discussion. For example, in Michael H. v. Gerald D., 491 U.S. 110 (1989) (plurality opinion), Justice Scalia's plurality opinion tersely dismissed a claim on behalf of a child in a paternity case that she had a right to receive legal recognition for her relationship with her biological father, as against a state law creating an irrebuttable presumption that her mother's husband was the sole legal father.
20. Id. at 130-31. In cases where biological fathers whose parental rights were not properly terminated petitioned to undo an adoption, state courts have entertained and rejected arguments that the child in question had a constitutional right to remain in a relationship with and in the custody of the adoptive parents.
21. See Petition of Kirchner, 649 N.E.2d 324,338-39 (111. 1995);
22. In re Baby Girl Clausen, 502 N.W.2d 649, 665 (Mich. 1993).
23. See infra Part I. The existence of a better alternative set of parents is important to my assessment of the state's placement of a baby into a legal and custodial relationship with unfit parents. I assume throughout the article that demand for adoption of newborns would remain high. Were the demand to evaporate, the assessment would differ in significant respects. However, the basic idea that babies have a constitutional right that constrains state decisionmaking about their parentage and custody, requiring the state to act solely as agent for the children in making these decisions, would still apply.
24. See infra Part I.
25. See Dwyer, supra note 2, at 442-47.
26. See id.
27. On the effects of attachment failure and child maltreatment,see id. at 415-24.
28. On the correlation between particular parental characteristics and child maltreatment, see id. at 424-27.
29. See id. at 423-24.
30. See infra Parts III.C and IV.
31. See Lawrence v. Texas, 539 U.S. 566 (2003) (finding the right to adult consensual sexual activity to be protected by the Fourteenth Amendment).
32. See Eisenstadt v. Baird, 405 U.S. 438 (1972) (establishing the right of unmarried individuals to purchase contraceptives);
33. Griswold v. Connecticut, 381 U.S. 479 (1965) (establishing the right of married couples to purchase contraceptives);
34. Skinner v. Oklahoma, 316 U.S. 535 (1942) (invalidating on equal protection grounds a state law authorizing sterilization of certain criminals).
35. See Gonzales v. Carhart, 127 S. Ct. 1610 (2007);
36. Roe v. Wade, 410 U.S. 113 (1973).
37. See Michael H. v. Gerald D., 491 U.S. 110 (1989) (plurality opinion);
38. Lehr v. Robertson, 463 U.S. 248 (1983);
39. Caban v. Mohammed, 441 U.S. 380 (1979);
40. Quilloin v. Walcott, 434 U.S. 246 (1978);
41. Stanley v. Illinois, 405 U.S. 645 (1972).
42. See Smith v. Org. of Foster Families fot Equal. & Reform (OFFER), 431 U.S. 816,845 (1977).
43. See Troxel v. Granville, 530 U.S. 57 (2000);
44. Wisconsin v. Yoder, 406 U.S. 205 (1972);
45. Pierce v. Society of Sisters, 268 U.S. 510 (1925);
46. Meyer v. Nebraska, 262 U.S. 390 (1923).
47. See Santoskyv.Kramer,455US.745 (1982);
48. Lassiterv.Dep,tofSoc.Servs.,452U.S. 18 (1981).
49. See, e.g., Lofton v. Sec'y of Dep't of Children & Family, 358 F.3d 804, 809 (11th Cir. 2004) (rejecting a challenge to a state's refusal to allow homosexuals adoption rights).
50. See infra note 130 and accompanying text.
51. See McDaniels v. Carlson, 738 P.2d 254, 262 (Wash. 1987) ("'[I]t is the child who has the most at stake in a paternity proceeding."' (quoting State v. Santos, 702 P.2d 1179,1180 (Wash. 1985))).
52. Such recognition motivated Congress to pass the Adoption and Safe Families Act of 1997, Pub. L. 105-89, 111 Stat. 2115 (codified in 42 U.S.C. § § 673b, 678, 679b (2000)), and the Keeping Children and Families Safe Act of 2003, Pub. L. 108-36, 117 Stat. 800.
53. See Dwyer, supra note 2, at 435-41.
54. For examples of statutes granting custody to birth parents, see GA. CODE ANN. § 16-5-45(a)(3) (2007) ("'Lawful custody' means that custody inherent in the natural parents, that custody awarded by proper authority as provided in Code Section 15-11-45, or that custody awarded to a parent, guardian, or other person by a court of competent jurisdiction.");
55. OHO REV. CODE ANN. § 2111.08 (LexisNexis 2007) ("The wife and husband are the joint natural guardians of their minor children and ⋯ have equal powers, rights, and duties⋯ ."). For examples of statutes prohibiting persons without state-conferred legal parent status from taking possession of a child, see ARIZ. REV. STAT. ANN, § 13-13O2(A)-(A)(l) (2001) ("A person commits custodial interference if, knowing or having reason to know that the person has no legal right to do so, the person⋯ [t]akes, entices or keeps from lawful custody any child ⋯ who is entrusted by authority of law to the custody of another person ⋯.");
56. COLO. REV. STAT. ANN. § 18-3-302(2) (West 2008) ("Any person who takes, entices, or decoys away any child not his own under the age of eighteen years with intent to keep or conceal the child from his parent or guardian ⋯ commits second degree kidnapping.");
57. GA. CODE ANN. § 16-5-45(b)(l)-(b)(l)(A) (2007) ("A person commits the offense of interference with custody when without lawful authority to do so the person ⋯ [k]nowingly or recklessly takes or entices any child ⋯ away from the individual who has lawful custody of such child⋯.");
58. IDAHO CODE ANN. § 18-4501-(4) (2004) ("Every person who willfully⋯ [l]eads, takes, entices away or detains a child under the age of sixteen (16) years, with intent to keep or conceal it from its custodial parent, guardian or other person having lawful care or control thereof,⋯ is guilty of kidnapping.");
59. LA. REV. STAT. ANN. § 14:45(A)-(A)(2) (2007) (Simple kidnapping is⋯ [t]he intentional taking, enticing or decoying away, for an unlawful purpose, of any child not his own and under the age of fourteen years, without the consent of its parent or the person charged with its custody.");
60. MD. CODE ANN., CRIM. LAW § 3-503(a) (LexisNexis Supp. 2008) ("A person may not, without color of right: (i) forcibly abduct, take, or carry away a child under the age of 12 years from: 1. the home or usual place of abode of the child; or 2. the custody and control of die child's parent or legal guardian;⋯ or (iii) with the intent of depriving the child's parent or legal guardian, or any person lawfully possessing the child, of the custody, care, and control of the child, knowingly secrete or harbor a child under the age of 12 years. (2) In addition to the prohibitions provided under paragraph (1) of this subsection, a person may not, by force or fraud, kidnap, steal, take, or carry away a child under the age of 16 years.").
61. Smith v. Org. of Foster Families for Equal. & Reform (OFFER), 431 U.S. 816, 845 (1977).
62. Lofton v. Sec'y of Dep't of Children & Family, 358 F.3d 804, 809 (1 lth Cir. 2004);
63. see also id. at 817 ("Here⋯ [t]he relevant state action is ⋯ grant of a statutory privilege [a]nd the asserted liberty interest is ⋯ the affirmative right to receive official and public recognition.");
64. In re Baby Girl Clausen, 502 N.W.2d 649, 665 (Mich. 1993) (quoting OFFER, 431 U.S. 816, 84546 (1977), in support of distinction between biological parents and would-be adoptive parents); Lindley for Lindley v. Sullivan, 889 F.2d 124, 131 (7th Cir. 1989) ("Because of its statutory basis, adoption differs from natural procreation in a most important and striking way.")
65. Lofton, 358 F.3d at 810.
66. See Jane C. Murphy, Legal images of Fatherhood: Welfare Reform, Child Support Enforcement, and Fatherless Children, 81 NOTRE DAME L REV. 325,331 (2005) ("The common law principle that fatherhood would only be recognized within marriage remained the law until the late twentieth century when the law began to recognize unmarried fathers ⋯.");
67. id. at 332 ("If a child was born to an unmarried woman, the child had no father.");
68. id- at 333-37. I address whether doing otherwise would be consistent with current doctrine regarding the constitutional rights of biological parents in Part III below.
69. The Lofton court supported characterization of adoption as a public act by maintaining that "these prospective adoptive parents ate electing to open their homes and their private lives to close scrutiny by the state," and that "a person who seeks to adopt is asking the state to conduct an examination into his or her background." Lofton, 358 F.3d at 810-11. This is fanciful and question-begging. Only under a peculiar definition of "electing" and "asking" do adoption applicants elect and ask for state inspection. They accept it because the state makes it a condition of applying. If the state required inspection of biological parents, we would not say that by filing a birth certificate biological parents "ask" to be inspected. In fact, all parents, biological and adoptive, are to some degree under state scrutiny; child maltreatment laws apply to all parents, all are susceptible to being reported to a state agency at any time for maltreatment, and the state investigates all colorable claims of child maltreatment whether parents are biological or adoptive. That there is a kind of state scrutiny before investiture of legal parenthood in the case of adoption and not in the case of biologically-based parentage reflects simply the state's choices, not any real public/private distinction.
70. The Lofton court characterized in this way the state's role in creating parent-child relationships through adoption law. Id. at 809. The Supreme Court has observed that "juveniles, unlike adults, are always in some form of custody," SchaU v. Martin, 467 U.S. 253, 265 (1984), and that "where the custody of the parent or legal guardian fails, the government may (indeed, we have said must) either exercise custody itself or appoint someone else to do so." Reno v. Flores, 507 U.S. 292,302 (1993);
71. see also Schall, 467 U.S. at 265 ("[I]f parental control falters, the State must play its part as parens patriae"). One might say, then, that conceptually children enter the world in government custody and the state subsequently, via parentage and custody laws, assigns them to the custody of private parties.
72. See O'Connor v. Donaldson, 422 U.S. 563, 583 (1975) ("States are vested with the historic parens patriae power, including the duty to protect 'persons under legal disabilities to act for themselves.'" (quoting Hawaii v. Standard Oil Co., 405 U.S. 251, 257 (1972))).
73. See James G. Dwyer, A Taxonomy of Children's Existing Rights in State Decisionmaking About Their Relationships, 11 WM. & MARY BILL RTS. J. 845, 859-60 (2003).
74. See Brian Bix, Domestic Agreements, 35 HOFSTRA L. REV. 1753, 1769 (2007). Now with the possibility of egg donation, a woman might become the legal mother of a child she bears even if she is not the genetic mother.
75. See generally Kira Horstmeyer, Putting Your Eggs m Someone Else's Basket: Inserting Uniformity Into the Uniform Parentage Act's Treatment of Assisted Reproduction, 64 WASH. & LEE L. REV. 671,687-88 (2007).
76. See Child Welfare Information Gateway, Infant Safe Haven Laws (2007), available at http://www.childwelfare.gov/systemwide/laws- policies/statutes/safehaven.cfm. Typically, a birthing facility enters a birth mother's name on an application for a birth certificate and sends it to the state vital records office; thus, if the birth mother left the baby at a safe haven, she would become the initial legal parent but then be divested of legal parenthood.
77. See Dwyer, supra note 2, at 481. But a woman might give birth at home and bring the baby to a safe haven, and in that case never be officially recognized as a legal parent.
78. See Dwyer, supra note 33, at 868-69, 879-80. The marital presumption might be explicit in paternity rules or implicit in statutory rules for filing birth certificates, which in some states say a birth mother's husband presumptively should be listed as the father. Id.
79. See id. at 869-70.
80. See, e.g., ALA. CODE § 26-17-5(a)(4) (LexisNexis 1992 & Supp. 2007);
81. COLO. REV. STAT. ANN. § 19-4-105 (l)(d) (2008);
82. DEL. CODE. ANN. tit. 13, § 8-204(a)(5) (Supp. 2006);
83. TEX. FAM. CODE ANN. § 160.204 (Vernon 2002 & Supp. 2008).
84. See, e.g., ALA. CODE § 26-17-5(b) (LexisNexis 1992 & Supp. 2007);
85. COLO. REV. STAT. ANN. § 19-4-105(2)(a) (2008);
86. DEL. CODE ANN. tit. 13, § 8-631 (Supp. 2006);
87. TEX. FAM. CODE ANN. § 160.631(b) (Vernon 2002).
88. But see S.D. CODIFIED LAWS § 25-8-57 (2004) (restricting standing to challenge marital presumption to husband, wife, and child); Lisa I. v. Superior Court, 34 Cal. Rptr. 3d 927 (Ct. App. 2005) (holding that state statute does not confer standing on putative fathers to challenge marital presumption, even if mother later becomes unmarried).
89. See Michael H. v. Gerald D., 491 U.S. 110 (1989) (plurality opinion); Murphy, supra note 29, at 337.
90. See, e.g., McDaniels v. Carlson, 738 P.2d 254, 262 (Wash. 1987);
91. see also Theresa Glennon, Somebody's Child: Evaluating the Erosion of the Marital Presumption of Paternity, 102 W. VA. L. REV. 547,574-75 (2000).
92. See Dwyer, supra note 33, at 874-75; Glennon, supra note 41, at 576.
93. See Horstmeyer, supra note 34, at 684-92;
94. see, e.g., 750 ILL. COMP. STAT. ANN. 40/3-3(a) (West 1999). But cf. In re K.M.H., 169 P.3d 1025, 1037 (Kan. 2007) (discussing state court decisions finding sperm donors to have a substantive due process right to legal parenthood if they agreed as such in writing with mother).
95. See, e.g., IDAHO CODE ANN. § 16-2005(1), (4) (Supp. 2008) (authorizing the termination of parental rights (TPR) based on abandonment and on execution of relinquishment form set forth in statute).
96. See Dwyer, supra note 33, at 888-89.
97. See id. at 882-83, 886-88.
98. See id. at 885-86.
99. See id. at 940-41,944-46.
100. See Dwyer, supra note 2, at 410, 413,428 n.86.
101. Pub. L 105-89, 111 Stat. 2115 (codified in 42 U.S.C. §§ 673b, 678,679b (2000)).
102. See 42 U.S.C. § 671(a)(15)(D) (2000).
103. See Laura Oren, Thwarted Fathers or Pop-Up Pops!: How to Determine When Putative Fathers Can Block the Adoption of Their Newborn Children, 40 FAM.L.Q. 153, 170-75 (2006).
104. See, e.g., KAN. STAT. ANN § 59-2136(h)(l)(D), (E) (Supp. 2007); In re Adoption of Baby E.A.W, 658 So. 2d 961 (Fla. 1995).
105. See, e.g., KAN. STAT. ANN. § 59-2136(h)(l)(B) (Supp. 2007).
106. See, e.g., ALASKA STAT. § 25.23.18O(c)(3) (2006);
107. IDAHO CODE ANN. § 16-2OO5(2)(a) (Supp. 2008);
108. IND. CODE ANN. § 31-19-9-8(a)(4) (LexisNexis 2007);
109. KAN. STAT. ANN. § 59-2136(h)(l)(F) (Supp. 2008);
110. WYO. STAT. ANN. § 1-22-110(a)(viii) (2007).
111. See, e.g., ALASKA STAT. § 25.23.180(c)(2) (2006).
112. See Rights of Unwed Father to Obstruct Adoption of His Child by Withholding Consent, 61 A.L.R.5th 151, §9 (2008). The only exception noted is Nole v. Robertson, 871 S.W.2d 674 (Tenn. 1994).
113. IND. CODE ANN. § 31-19-9-8(a)(10)-(ll) (LexisNexis 2007).
114. MO. ANN. STAT. § 453.040(6) (West 2003).
115. See Dwyer, supra note 2, at 447-52.
116. Cf. In re B.G.C., 496 N.W.2d 239 (Iowa 1992) (holding that a biological father could prevent adoption, despite his "poor performance record as a parent," because state statutes required TPR under child protection statutory provisions prior to the adoption petition in order to obviate his consent).
117. See 61 A.L.R.5th 151, at § 9 (listing only a dozen reported decisions since 1978 in the entire U.S. invoking best interests basis for obviating unwed father's consent to adoption).
118. MO. ANN. STAT. § 453.040(6).
119. IND. CODE ANN. §31-19-9-8(a)(10)-(ll).
120. Pub.L. 108-36,117 Stat. 800.
121. See 42 U.S.C. § 5106a(b)(2)(A)(ii) (Supp. 2005).
122. See Amy DAndrade & Jill Duerr Berrick, When Policy Meets Practice: The Untested Effects of Permanency Reforms in Child Welfare, 33 J. SOC. & SOC. WELFARE 31, 37 (March 2006) ("[Estimates of the proportion of children placed in foster care at least in part due to substance abuse issues of the parents range from 50%-80%.").
123. See Dwyer, supra note 2, at 444-45,447-51.
124. See id. at 426-28; Dwyer, supra note 33, at 952-66.
125. A small minority of U.S. states do confer marital status on some couples who have not manifested consent through a wedding ceremony, through rules of what is commonly called common law marriage. Those rules, however, require that both parties have manifested a consent to marry in other ways. See, e.g., Whyte v. Blair, 885 P.2d 791, 794-95 (Utah 1994).
126. See United Nations Convention on Consent to Marriage, Minimum Age for Marriage and Registration of Marriages, Dec. 10, 1962, art. 1(1), 521 U.N.T.S. 231, 234 (entered into force Dec. 9, 1964); Cara Goeller, Forced Marriage and the Granting of Asylum: A Reason to Hope After Gao v. Gonzales, 14 WM. & MARY J. WOMEN & L 173 (2007) (discussing a Second Circuit decision overturning denial of asylum to women who had been sold into marriage in China).
127. See Richard A. Vasquez, The Practice of Polygamy: Legitimate Free Exercise of Religion or Legitimate Public Menace? Revisiting Reynolds in Light of Modem Constitutional Jurisprudence, 5 N.Y.U. J. LEGIS. & PUB. Pol'Y 225, 230 (2002).
128. Roberts v. U.S. Jaycees, 468 U.S. 609, 620 (1984).
129. See, e.g., TENN. CODE ANN. § 31-2-104 (2007).
130. See discussion of guardianship infra text accompanying notes 80-81.
131. See Westlaw 50 State Statutory Surveys: Child Custody (2008) (discussing grandparent visitation); Troxel v. Granville, 530 U.S. 57, 73 (2000) (citing visitation statutes in 50 states); Dwyer, supra note 33, at 966-69 (discussing laws protecting siblings' interest in remaining together after parents' divorce or after state removal from parental custody).
132. See discussion of guardianship infra, and Dwyer, supra note 33, at 972-84. If a custodial parent objects to visitation with a child, a court might further require a showing that denying visitation would harm the child. Id. at 979-80, 982. Thus, visitation with a non-parent is never forced on a child contrary to the child's welfare, but in some cases a child might be deprived of visitation even though the child would be better off if the visitation occurred.
133. See, e.g., MO. ANN. STAT. § 475.050(1) (West 1992 & Supp. 2008) ("[T]he court shall consider the suitability of appointing any of the following persons who appear to be willing to serve." (emphasis added)).
134. See Dwyer, supra note 33, at 937.
135. See, e.g., IND. CODE ANN. § 30-5-3-4 (LexisNexis 2000) (authorizing persons to designate in advance a guardian for themselves should they be found in need of one);
136. MO. ANN. STAT. § 475.050 (West Supp. 2008) ("Before appointing any other eligible person as guardian of an incapacitated person, or conservator of a disabled person, the court shall consider the suitability of appointing any ⋯ eligible person nominated in a durable power of attorney executed by the incapacitated or disabled person ⋯ before the inception of the person's incapacity ⋯ .");
137. S.D. CODIFIED LAWS § 59-7-2.4 (2004) (authorizing persons to designate in advance a guardian for themselves should they be found in need of one);
138. In re Estate of Salley, 742 So. 2d 268, 270 (Fla. Dist. Ct. App. 1997) ("Where a ward's preference as to the appointment of a guardian is capable of being known, that intent is the polestar to guide probate judges in the appointment of their guardians. A ward's nominee, of course, may be rejected when unfit or unsuitable ⋯ .");
139. In re Estate of Doyle, 838 N.E.2d 355, 364 (111. App. Ct. 2005) ("In determining who shall be a disable person's guardian, the disabled person's personal preferences as to who should be his or her guardian is outweighed by what is in the disabled person's best interest."); In re Guardianship of Macak, 871 A.2d 767, 772 (N.J. Super. A.D. 2005) (stating that in appointing a guardian, "the court should consider ⋯ the wishes of the incapacitated person if expressed" and that "[i]f there is a significant issue as to the appropriate choice of guardian, the court may appoint a guardian ad litem to advise the court as to the person's best interests.").
140. See, e.g., In re Guardianship of Quindt, 396 So. 2d 1217 (Fla. App. 1981) (upholding the appointment of a neighbor rather than the daughter because it was in the ward's best interest).
141. See, e.g., Matter of Crist, 732 S.W.2d 587, 590 (Mo. Ct. App. 1987) ("Preference is given a particular petitioner, not because the petitioner wants the position, but because the ward would want the petitioner appointed.");
142. Estate of Salley, 742 So. 2d 268, 270 (Fla. Dist. Ct. App. 1997) (faulting the trial court for aiming to placate family members in selecting guardian).
143. See JOHN PARRY & ERIC Y. DROGIN, MENTAL DISABILITY: LAW, EVIDENCE AND TESTIMONY 145 (2007).
144. Emotional neglect is a recognized and serious form of maltreatment. See, e.g., In re Custody & Parental Rights of D.S., 122 P.3d 1239 (Mont. 2005) (upholding the termination of parental rights of a methamphetamine-addicted mother based on chronic and severe emotional neglect). However, child protection agencies almost never intervene on that basis alone.
145. See, e.g., Cruzan v. Mo. Dep't of Health, 497 U.S. 261, 271 (1990) (noting with approval state court reasoning that "an incompetent person retains the same rights as a competent individual 'because the value of human dignity extends to both'");
146. id. at 273 (noting with approval state court reasoning that "the right of self-determination should not be lost merely because an individual is unable to sense a violation of it" and that such a right could be "exercised by a surrogate decision maker" relying on evidence of what the person wanted when competent and/or on objective evidence of best interests);
147. id. at 279-80 (recognizing that a competent adult has "a constitutionally protected right to refuse lifesaving hydration and nutrition" and that an incompetent adult's identical right "must be exercised for her, if at all, by some sort of surrogate");
148. id. at 315-16 (Brennan, J., dissenting) (asserting that the state's only legitimate interest in connection with cessation of treatment was "a parens patriae interest in providing Nancy Cruzan, now incompetent, with as accurate as possible a determination of how she would exercise her rights under these circumstances");
149. Youngberg v. Romeo, 457 U.S. 307 (1982) (holding that a mentally retarded individual involuntarily committed to state institution had a constitutionally protected liberty interest to reasonably safe conditions of confinement, freedom from unreasonable bodily restraints, and minimally adequate training).
150. See Stanley v. Illinois, 405 U.S. 645, 654 (1972) ("It may be, as the State insists, that most unmarried fathers are unsuitable and neglectful parents.");
151. id. at 666 (Burger, J., dissenting) ("[U]nwed fathers rarely burden either the mother or the child with their attentions.").
152. See Murphy, supra note 29, at 331-37.
153. See infra notes 237-242 and accompanying text.
154. See Smith v. Org. of Fcater Families for Equal. & Reform (OFFER), 431 U.S. 816,846-47(1977).
155. See, e.g., Loftonv. Sec'y ofp't of Children & Family, 358 F.3d 804,818-26. (11th Cir. 2004).
156. See Reynolds v. United States, 98 U.S. 145 (1878).
157. See Turner v. Safley, 482 U.S. 78 (1987).
158. See Zablocki v. Redhail, 434 U.S. 374 (1978).
159. See Loving v. Virginia, 388 U.S. 1(1967).
160. 388 U.S. 1(1967).
161. Id. at 12;
162. see also Zablodu, 434 U.S. at 383-87 (citing numerous cases in which the Court had spoken of freedom of choice in marriage as a fundamental right).
163. See Moore v. City of E. Cleveland, 431 U.S. 494, 506 (1977) (plurality opinion) ("[T]he Constitution prevents East Cleveland from standardizing its children-and its adults-by forcing all to live in certain narrowly defined family patterns.").
164. Current biology-based parentage laws might appear consistent with, or at least not incompatible with, constitutional doctrine in other contexts-in particular, Supreme Court decisions relating to sexual privacy and reproductive freedom. As discussed further below, a right to raise one's biological offspring does not necessarily follow from a right to have sex or a right to conceive children, as is evident from the Court's unwed father cases. See, e.g., Lehr v. Robertson, 463 U.S. 248, 260 ('"Parental rights do not spring full-blown from the biological connection between parent and child.'" (quoting Caban v. Mohammed, 441 U.S. 380, 397 (1979))). Thus, the Court could establish a right of newborns to avoid a relationship with unfit birth parents without overturning its precedents establishing those other rights. In any event, those precedents gave no consideration to the future personhood of children who might be created by exercise of the rights to sexual and reproductive freedom, so extrapolation from their analysis to conclusions about persons' constitutional entitlement to raise offspring they produce would be unwarranted.
165. State laws declare legal parents presumptive custodians of children. See, e.g., D.C. CODE ANN. § 21-101 (LexisNexis 2001);
166. FLA. STAT. ANN. § 744.301 (West Supp. 2008);
167. R.I. GEN. LAWS §33-15.1-1(1995).
168. See Roberts v. U.S. Jaycees, 468 U.S. 609, 623 (1984) ("Freedom of association therefore plainly presupposes a freedom not to associate.").
169. See id. at 620 ("[T]he Constitution undoubtedly imposes constraints on the State's power to control the selection of one's spouse that would not apply to regulations affecting the choice of one's fellow employees.").
170. See id. at 619-21.
171. See id. The Court has also held, though, that such organizations have a First Amendment right against compelled association that would "affect[ ] in a significant way the group's ability to advocate public or private viewpoints," absent a compelling state interest. Boy Scouts of Am. v. Dale, 530 U.S. 640, 648 (2000) (holding state "public accommodation" law's anti-discrimination law unconstitutional as applied to the Boy Scouts of America's policy of excluding homosexuals from leadership positions).
172. See Sandin v. Conner, 515 U.S. 472, 484 (1995) (holding that segregated confinement did not implicate due process liberty interests, but indicating that inmates retain a substantive due process right that a state might violate by "atypical and significant hardship on the inmate in relation to the ordinary incidents of prison life");
173. Smith v. Wade, 461 U.S. 30, 56 (1983) (holding that a prison guard could be assessed punitive damages in a § 1983 claim stemming from prison attack, for reckless indifference to the safety of prisoners);
174. Bell v. Wolfish, 441 U.S. 520, 542 (1979) (holding that housing two pre-trial detainees in a room intended for one did not violate due process rights, but stating in dictum that "confining a given number of people in a given amount of space in such a manner as to cause them to endure genuine privations and hardship over an extended period of time might raise serious questions under the Due Process Clause");
175. Hutto v. Finney, 437 U.S. 678, 689 (1978) (holding that the district court's award of attorney's fees to be paid out of the Department of Corrections' funds was supported by bad faith and did not violate the Eleventh Amendment when conditions of prison isolation cells constituted cruel and unusual punishment).
176. See Jill Elaine Hasday, Contest and Consent: A Legal History of Marital Rape, 88 Cal. L. REV. 1373, 1390-91 (2000) ("A
177. See Dwyer, supra note 33, at 937- Parents may not abandon their children in a manner that endangers them-for example, by leaving a child in a dumpster. But a birth mother could walk out of a hospital without the child and never see the child again, yet incur no penalty; if anything, the state would just eventually terminate her legal relationship with the child. See supra note 35 and accompanying text.
178. See Vitek v. Jones, 445 US, 480, 491-92 (1980) (recognizing due process rights of prisoners regarding transfers to mental hospital);
179. Addington v. Texas, 441 U.S. 418, 432-33 (1979) (holding that the state must prove the need for involuntary commitment of an adult by clear and convincing evidence);
180. cf. Parham v. J.R. 442 U.S. 584, 638 (1979) (holding that minors whose parents seek to place them in a mental hospital have a procedural due process right as to the neutral fact finder's independent evaluation of whether statutory criteria for admission are satisfied).
181. See Youngberg v. Romeo, 457 U.S. 307, 314-19 (1982) (holding that persons involuntary committed to a state institution for the mentally retarded have a substantive due process right to safe conditions, freedom from unreasonable bodily restraint, and minimally adequate training).
182. Id. at 315-16.
183. See PARRY & DROGIN, supra note 83, at 146;
184. cf. In re Seyse, 803 A.2d 694, 700 (N.J. Super. Ct. App. Div. 2002) (assuming a guardian's relocation of a ward to be proper if consistent with the ward's best interests, citing court holdings in other jurisdictions that the guardian's choice of residence must be in ward's best interests).
185. See Reno v. Flores, 507 U.S. 292,304 (1993) C"[T]he best interests of the child' is not the legal standard that governs parents' or guardians' exercise of their custody: So long as certain minimum requirements of child care are met, the interests of the child may be subordinated to the interests of other children, or indeed even to the interests of the parents or guardians themselves.").
186. 489 U.S. 189(1989).
187. Id. at 201.
188. Id. at 196-97.
189. See Nicini v. Morra, 212 F.3d 798, 809-12 (3d Cir. 2000) (adopting a "deliberate indifference" standard and citing decisions of other courts applying similar standard);
190. Clark K. v. Guinn, No. 2:06-CV-1068-RCJ-RJ], 2007 U.S. Dist. WL 1435428, at *15 (D. Nev. May 14, 2007) (adopting a professional judgment standard and citing decisions of other courts that had done so);
191. Kenny A. v. Perdue, No. l:02-CV-1686-MHS, 2004 U.S. Dist. WL 5503780, at *3-4 (N.D. Ga. Dec. 13, 2004) (adopting a professional judgment standard).
192. See Survey, Standards for Foster Care Families, Westlaw 50 State Statutory Surveys (2006).
193. See Dwyer,supra note 33, at 907-11.
194. See id. at 932-37.
195. See id. at 937.
196. See id. at 970.
197. See id. at 967.
198. See id. at 966-69.
199. 539 U.S. 558 (2003).
200. See id. at 567.
201. Id. at 567, 574 (referring to "the respect the Constitution demands for the autonomy of the person in making these choices" -namely, "personal decisions relating to marriage, procreation, contraception, family relationships, child rearing, and education").
202. See Moore v. City of E. Cleveland, 431 U.S. 494, 504-05 (1977) (plurality opinion).
203. See, e.g., GA. CODE ANN. § 1943-4 (2004& Supp. 2008); OHIO REV. CODE ANN. § 2919.26 (West 1994 & Supp. 2008).
204. See, e.g, VA. CODE ANN. § 18.2-370.2 (1950& Supp. 2008).
205. See Katie Zezima, After Rape, Calk to Limit Where Sex Offenders Go, N.Y. TIMES, Feb. 18, 2008, at A9 (discussing calls for local ordinances to prohibit sex offenders from libraries and other public places).
206. See generally Wayne A. Logan, Sex Offender Registration and Community Notification: Past, Present, and Future, 34 NEW ENG. J. ON CRIM. & ClV. CONFINEMENT 3 (2008);
207. Wayne A. Logan, Constitutional Colleaiiism and Ex-Offender Residence Exclusion Laws, 92 lOWA L. REV. 1 (2006).
208. Cf. National School Safety and Security Services, School Employee & School Teacher Background Checks, http://www.schoolsecurity.org/resources/ teacher-background-checks.html (last visited Feb. 15, 2009) (encouraging schools to conduct more thorough background checks);
209. USA Track & Field (USATF), Criminal Background Check Program, Frequently Asked Questions, http://www.usatf.org/about/programs/ backgroundChecks/FAQ.asp (last visited Feb. 15, 2009) (providing information regarding a screening program for youth coaches).
210. See Dwyer, supra note 2, at 435-37.
211. Pub. L 105-89, 111 Stat. 2115 (codified at 42 U.S.C. §§ 673b, 678,679b (2000)).
212. Pub. L. 108-36,117 Stat. 800.
213. See, e.g., Reno v. Flores, 507 U.S. 292 (1993) (adjudicating a non-fundamental right of juvenile aliens to be held in a private custodial setting);
214. id. at 316 (O'Connor, J., concurring) ("Children, too, have a core liberty interest in remaining free from institutional confinement. In this respect, a child's constitutional '[fireedom from bodily restraint' is no narrower than an adult's." (quoting Foucha v. Louisiana, 504 U.S. 71, 80 (1992)));
215. Parham v. J.R., 442 U.S. 584, 600 (1979) ("It is not disputed that a child, in common with adults, has a substantial liberty interest in not being confined unnecessarily for medical treatment and that the state's involvement in the commitment decision constitutes state action under the Fourteenth Amendment.");
216. Ingraham v. Wright, 430 U.S. 651, 674 (1977) ("l'V]here school authorities, acting under color of state law, deliberately decide to punish a child for misconduct by restraining the child and inflicting appreciable physical pain, we hold that Fourteenth Amendment liberty interests are implicated.");
217. Roe v. Wade, 410 U.S. 113, 157 (1973) (indicating that the multiple uses of "person" in the Constitution apply to humans following birth);
218. Tinket v. Des Moines Indep. Cmry. Sch. Dist., 393 U.S. 503 (1969) (upholding First Amendment speech rights of public high school students); Levy v. Louisiana, 391 U.S. 68, 71- 72 (1968) (recognizing an equal protection right of illegitimate children against being denied wrongflul death action as to parent).
219. Washington v. Glucksberg, 521 U.S. 702, 719 (1997).
220. Daniels v. Williams, 474 U.S. 327, 331 (1986) (quoting Hurtado v. California, 110 U.S. 516,527(1884)).
221. See generally Susan E. Lawrence, Substantive Due Process and Parental Rights: From Meyer v. Nebraska to Troxel v. Granville, 8 J.L. & FAM. STUD. 71 (2006).
222. See, e.g., Youngberg v. Romeo, 457 U.S. 307, 314-19 (1982) (holding that persons involuntarily committed to a state institution for the mentally retarded have a substantive due process right to safe conditions, freedom from unreasonable bodily restraint, and minimally adequate training);
223. Vitek v. Jones, 445 U.S. 480, 491-92 (1980) (holding that the involuntary transfer of a prisoner to a mental hospital implicates a liberty interest protected by the Due Process Clause); lngraham, 430 U.S. at 673 (upholding the practice of corporal punishment in public schools, but acknowledging that the Due Process Clause guards the "right to be free from and to obtain judicial relief, for unjustified intrusions on personal security");
224. Tinker, 393 U.S. at 506 (stating in dicta that school regulations can infringe a liberty interest of students protected by the Due Process Clause).
225. See, e.g., Youngberg, 457 U.S. at 315-16; lngraham, 430 U.S. at 674.
226. 489 U.S. 189(1989).
227. "Petitioner sued respondents claiming that their failure to act deprived him of his liberty⋯."
228. Id. at 191. "The complaint alleged that respondents had deprived Joshua of his liberty ⋯ by failing to intervene" after they had undertaken "to protect Joshua from this danger- which petitioners concede the State played no part in creating."
229. Id. at 193-97.
230. Id. at 196 (asserting that the purpose of the Due Process Clause is "to protect the people from the State, not to ensure that the State protected them from each other" and that the Clause "confer[s] no affirmative right to government aid");
231. id. at 197 ("[A] State's failure to protect an individual against private violence simply does not constitute a violation of the Due Process Clause.");
232. id. at 201 (referring to "a danger it concededly played no part in creating");
233. id. at 203 ("The most that can be said of the state functionaries in this case is that they stood by and did nothing ⋯.").
234. See id. at 200-02.
235. See Matthew D. Barrett, Failing to Provide Police Protection: Breeding a Viable and Consistent 'State-Created Danger' Analysis for Establishing Constitutional Violations Under Section 1983, 37 VAL. U. LREV. 177,188-210(2002).
236. I assume here the existence of kidnapping prohibitions, which should preclude any adults without special legal license from taking possession of a child and holding the child in their home. In the absence of such prohibitions, and in the absence of laws conferring legal parent status on other persons, unfit birth parents might be legally free to take and retain possession of their offspring. However, without state-conferred legal parent status and the powers it entails, they could not invoke the assistance of the state in preventing others from taking the child instead, because others would also be legally free to do so, and others might be especially motivated to take possession of a baby if they perceived the birth parents' unfitness. Such state-of-nature speculation is not especially illuminating, in my view, because the notion of a society devoid of parentage and kidnapping laws is utterly unrealistic, so the more likely alternative is that the state would assign legal parent status to other persons who are fit to parent. Relative to that alternative, a state decision to confer legal parent status and physical custody rights on unfit birth parents creates a danger that otherwise would not exist.
237. See, e.g., Roe v. Wade, 410 U.S. 113,155 (1970).
238. See Reno v. Flores, 507 U.S. 292,305-06 (1993).
239. See ERWIN CHEMERINSKY, CONSTITUTIONAL LAW: PRINCIPLES AND POLICIES 417 (2006) (noting that the application of strict scrutiny depends in part on the designation of a right as fundamental, and that the applied level of scrutiny is likely to determine the outcome of the case).
240. Washington v. Glucksberg, 521 U.S. 702, 720 (1997) (quoting Collins v. City of Harlcer Heights, Tex., 503 U.S. 115,125 (1992));
241. see also Ferguson v. Skrupa, 372 U.S. 726, 729-30 (1963) ("We have returned to the original constitutional proposition that courts do not substitute their social and economic beliefs for the judgment of legislative bodies, who are elected to pass laws.").
242. See Rebecca L Brown, The Lo& of Majority Rule, 9 U. PA. J. CONST. L. 23, 28-29 (2006) ("[W]hen the Court has concerns about the integrity of legislative process, it consistently responds with aggressive interpretations of substantive constitutional standards that are within its sphere of enforcement, such as individual rights provisions.");
243. id at 31-32 (explaining that two of the three principal rationales typically given for majority rule are that it ensures consideration of every person's interests or preferences and that it produces government based on the consent of the governed).
244. Cf. id. at 33-35 (explaining that an assumption of universal equal personhood underlies all the main justifications for majoritarian decisionmaking);
245. Frank I. Michelman, Unenumerared Rights Under Popular Constitutionalism, 9 U. PA. J. CONST. L. 121, 143 (2006) ("At the core of the constitutional-contractarian approach to the justification of political coercion stands a liberal's insistence on the normative primacy-that is, as objects of moral concern-of notionally free and equal individuals; hence the demand that potentially coercive political acts be acceptable from the standpoints of each ⋯ of countless persons among whom conflicts of interest and vision abound." (emphasis omitted)).
246. 539 U.S. 558 (2003).
247. See Daniel 0. Conkle, Three Theories of Substanave Due Process, 85 N.C. L. REV. 63, 117-2 1 (2006). Conkle discerns in Lawrence a third approach to identification of fundamental rights, which he terms a "theory of evolving national values."
248. Id. at 67-68. However, the Court might better be viewed as simply making recent history more relevant to the "history and tradition" inquiry than earlier history.
249. Reno v. Flores, 507 U.S. 292, 302 (1993).
250. Washington v. Glucksberg, 521 U.S. 702, 720-21(1997) (citations omitted).
251. See id. at 728.
252. See Michael H. v. Gerald D., 491 U.S. 110, 122-23 (1989) (plurality opinion).
253. See Bowers v. Hardwick, 478 U.S. 186 (1986), overruled by Lawrence v. Texas, 539 U.S. 558 (2003).
254. Planned Parenthood of Se. Pa. v. Casey, 505 U.S. 833, 849 (1992).
255. Id. at 850 (quoting Poe v. Ullman, 367 U.S. 497, 542 (1961) (Harlan, J. dissenting)).
256. Id.; see also David D. Meyer, Self-Definition in the Constitution of Faith and Family, 86 MINN. L. REV. 791, 805-06 (2002).
257. See Gonzalez v. Carhart, 127 S. Ct. 1610, 1640 (2007) (Ginsburg, J., dissenting) (invoking "the centrality of " the decision whether to bear ⋯ a child' to a woman's 'dignity and autonomy,' her 'personhood' and 'destiny,' her 'conception of ⋯ her place in society"); Conkle, supra note 153, at 101 (discussing the majority's analysis in Roe);
258. id. at 104-05 (discussing Casey).
259. Casey, 505 U.S. at 850 (quoting Poe v. UlIman, 367 U.S. at 542 (Harlan, J., dissenting)).
260. Lawrence v. Texas, 539 U.S. 558, 578-79 (2003).
261. See Griswold v. Connecticut, 550 U.s. 479 (1965); Eisenstadt v. Baird, 405 U.S. 438 (1972) (involving birth control for unmarried persons).
262. See Roe v. Wade, 410 U.S. 113 (1970) (involving abortion for adults); Bellotti v. Baird, 443 U.S. 622, 642 (1979) (involving abortion for minors).
263. See Lawrence, 539 U.S. at 578-79 (involving homosexual conduct).
264. Washington v. Glucksberg, 521 U.S. 702, 721 (1997) (quoting Reno v. Rores, 507 U.S. 292,302 (1993)
265. Michael H. v. Gerald D., 491 U.S. 110, 127 n.6 (1989) (plurality opinion).
266. Compare id. at 127-28 n.6 (plurality opinion) ("[T]he dissent has no basis for the level of generality it would select"), with id. at 132 (O'Connor, J., concurring in part) ("On occasion the Court has characterized relevant traditions protecting asserted rights at levels of generality that might not be 'the most specific level' available ⋯. 1 would not foreclose the unanticipated by the prior imposition of a single mode of historical analysis.").
267. See Randy E. Barnett, Who's Afraid of Unenumerated Rights ?, 9 U. Pa. J. CONST. L. 1, 17 (2006) ("If all liberty was protected equally, regulation would cease and, with it, most government functions mellip; .").
268. See Michael H., 491 U.S. at 128 n.6 (plurality opinion) ("[LJeaving judges free to decide as they think best when the unanticipated occurs⋯ is no rule of law at all.").
269. Glucksberg, 521 U.S. at 724.
270. Reno v. Flores, 507 U.S. 292,302 (1993).
271. Bowers v. Hardwick, 478 U.S. 186, 199 (1986) (Blackmun, J., dissenting) (quoting Olmstead v. United States, 277 U.S. 438,478 (1928) (Brandeis, J., dissenting)).
272. See In re Marriage Cases, 43 Cal. 4th 757, 183 P.3d 384 (Cal. 2008) ("None of the foregoing decisions-in emphasizing the importance of undertaking a "careful description' of the asserted fundamental liberty interest' ([Glucksberg, 521 U.S. at 721])-suggests, however, that it is appropriate to define a fundamental constitutional right or interest in so narrow a fashion that the basic protections afforded by the right are withheld from a class of persons ⋯ who historically have been denied the benefit of such rights. ⋯ In this regard, we agree with ⋯ Chief Judge Kaye of the New York Court of Appeals in her dissenting opinion in Hernandez v. Robles, [855 N.E.2d 1, 23 (N.Y. 2006)]:'[Fundamental rights, once recognized, cannot be denied to particular groups on the ground that these groups have historically been denied those rights.' (Cf. Taylor v. Louisiana [419 U.S. 522, 537 (1975)] ["it is no longer tenable to hold that women as a class may be excluded or given automatic exemptions based solely on sex if the consequence is that criminal jury venires are almost totally male ⋯. If it was ever the case that women were unqualified to sit on juries or were so situated that none of them should be required to perform jury service, that time has long since passed"]"); cf. Moore v. City of E. Cleveland, 431 U.s. 494, 502 (1977) (plurality opinion) ("[Hlistory counsels caution and restraint. But it does not counsel abandonment, nor does it require ⋯ cutting off any protection of family rights at the first convenient, if arbitrary boundary )). A similar, third principle might be that the articulation of the right should not be so narrow as to preclude application of well-established constitutional norms to novel contexts that arise as society evolves, absent constant amendment of the Constitution. New forms of state action occasioned by medical advances are an example. It was proper for the Court in Cruzan v. Missouri Department of Health to characterize the interest at stake as an "interest in refusing unwanted medical treatment," 497 U.S. 261, 278 (1990), rather than as something like "an interest in not receiving hydration while in a persistent vegetative state."
273. 262 U.s. 390 (1923).
274. See Conkle, supra note 153, at 92-93.
275. See Michael H. v. Gerald D., 491 U.S. 110, 125 (1989) (plurality opinion) ("We have found nothing in the older sources, nor in the older cases, addressing specifically the power of the natural father to assert parental rights over a child born into a woman's existing marriage with another man."); id. at 129 n.7 ("[l]t is at least possible that our traditions lead to a different conclusion with regard to adulterous fathering of a child whom the marital parents do not wish to misc as their own.").
276. JOHN E. B.MYERS, A HISTORY OF CHILD PROTECTION IN AMERICA 19 (2004).
277. See CHILD WELFARE LAW AND PRACTICE 116-17 (Marvin Ventrell & Donald N. Duquette eds., 2005).
278. See generally JOHN E.B. MYERS, CHILD PROTECTION IN AMERICA: PAST, PRESENT, AND FUTURE 101-103 (2006);
279. JOSEPH M. HAWES, THE CHILDREN'S RIGHTS MOVEMENT: A HISTORY OF ADVOCACY AND PROTECTION 1-7 (1991).
280. Cf. Stanley v. Illinois, 405 U.S. 645, 647 (1972) ("The State continues to respond that unwed fathers are presumed unfit to raise their children ⋯.").
281. See MYERS, supra note 182, at 11-12; CHILD WELFARE LAW AND PRACTICE, supra note 181, at 118-22. As such, there is stronger evidence of a tradition of recognizing a somewhat more generally articulated right of children to avoid being in a legal relationship with unfit birth parents. But there clearly has been a tradition of denying legal parent status in the first instance to some birth parents deemed unfit (at a minimum, unwed fathers), and that might be sufficient for the Court to recognize a right of children at the level of specificity I have used.
282. CHILD WELFARE LAW AND PRACTICE, supra note 181, at 118-21.
283. See MYERS, supra note 182, at 12-13.
284. See HAWES, supra note 182, at 1-2. For example, the Massachusetts "Body of Liberties of 1641," reprinted in A BIOGRAPHICAL SKETCH OF THE LAWS OF THE MASSACHUSETTS COLONY FROM 1630 TO 1686, at 51 (William H. Whitmore ed., Rockwell & Churchill 1890), proscribed "unnaturall severitie" toward one's children in the "Liberties of Children" section and gave children "free libertie to complaine to the Authoritie for redresse."
285. Id. at 5.
286. id. at 2, 6-7; lEROY ASHBY, ENDANGERED CHILDREN: DEPENDENCY, NEGLECT, AND ABUSE IN AMERICAN HISTORY 7 (1997).
287. See ASHBY, supra note 188, at 51.
288. CHILD WELFARE LAW AND PRACTICE, supra note 181, at 124-26.
289. Id. at 116,128, 133; MYERS, supra note 182, at 13, 19.
290. See CHILD WELFARE LAW AND PRACTICE, supra note 181, at 126-28.
291. Ex pane Crouse, 4 Whart. 9, 11 (Pa. 1839) (per curiam);
292. see also CHILD WELFARE LAW AND PRACTICE, supra note 181, at 127 ("[I]n a series of cases involving delinquent and dependent children ⋯ courts adopted the Crouse policy that the state's parens patriae duty and authority permitted seemingly unlimited intervention into family autonomy.").
293. See CHILD WELFARE LAW AND PRACTICE, supra note 181, at 128-32;
294. MYERS, supra note 182 at 34-37, 44, 58;
295. JANE WALDFOGEL, THE FUTURE OF CHILD PROTECTION 71, 78 (1998) ("Protecting children as an end in itself has been an explicit goal for more than a century."); Hong, supra note 5, at 14-25.
296. See MYERS, supra note 182, at 34-35, 37;
297. CHILD WELFARE LAW AND PRACTICE, supra note 181, at 132;
298. WALDFOGEL, supra note 194, at 71.
299. See generally MYERS, supra note 182, at 37-41.
300. See CHILD WELFARE LAW AND PRACTICE, supra note 181, at 132;
301. MYERS, supra note 182, at 35-36, 44-45;
302. WALDFOGEL, supra note 194, at 71-72.
303. See MYERS, supra note 182, at 39-40, 48.
304. See id. at 64-67,69; CHILD WELFARE LAW AND PRACTICE, supra note 181, at 114-15,133-34.
305. See CHILD WELFARE LAW AND PRACTICE, supra note 181, at 133.
306. See MYERS, supra note 182, at 54-55, 60-61,64.
307. 321 U.S. 158, 162, 166, 170 (1944) (upholding the conviction of a guardian for allowing a child to distribute religious tracts in the streets at night, stating that "the state as parens patriae may restrict the parent's control by requiring school attendance, regulating or prohibiting the child's labor, and in many other ways," and citing numerous prior decisions).
308. See HAWES, supra note 182, at 96-97, 105-09.
309. See MYERS, supra note 182, at 81-103;
310. CHILD WELFARE LAW AND PRACTICE, supra note 181, at 136-37;
311. WALDFOGEL, supra note 194, at 72;
312. cf. Lawrence v. Texas, 539 U.S. 558, 571-72 (2003) (suggesting that looking back just a half century could suffice in the search for a relevant tradition).
313. See MYERS, supra note 182, at 74, 91, 100;
314. CHILD WELFARE LAW AND PRACTICE, supra note 181, at 137-38.
315. See Dwyer, supra note 2, at 435-41.
316. At times the Lawrence Court articulated the right at stake as the broader right to personal autonomy. See, e.g., 539 U.S. at 573-74- And the Court did not rest its decision entirely on a history-and-tradition inquiry. But the Court also asserted the more specific "right of homosexual adults to engage in intimate, consensual conduct,"
317. id. at 560, and it did spend a significant portion of its analysis examining the historical record of the criminal law's treatment of sodomy, id. at 568-70.
318. See WALDFOGEL, supra note 194, at 72 ("[T|he proposition that children should not be abused or neglected is not a controversial one.");
319. cf. Michael H. v. Gerald D., 491 U.S. 110, 122 n.2 (1989) (plurality opinion) (stating that, for purposes of due process, an interest denominated as a "liberty" must be, inter alia, an interest "traditionally protected" by our society and that "[t]he protection need not take the form of an explicit constitutional provision or statutory guarantee, but it must at least exclude ⋯ a societal tradition of enacting laws denying the interest");
320. id. at 127-28 n.6 (stating "[i]f, for example, there were no societal tradition, either way, regarding the rights of the natural father of a child adulterously conceived, we would have to consult, and (if possible) reason from, the traditions regarding natural fathers in general" and noting that the Court's prior decisions recognizing a right to purchase and use contraceptives had not found any "longstanding and still extant societal tradition withholding the very right pronounced to be the subject of a liberty interest").
321. Cf. HAWES, supra note 182, at 109-13 (discussing difficulties in enforcing children's rights and child welfare laws);
322. MYERS, supra note 182, at 72-73, 79-80 (noting that progress toward comprehensive and properly tailored child protection efforts were derailed for much of the twentieth century by the Great Depression, World War II, the Korean War, and the Cold War).
323. See, e.g., Brief of Amicus Curiae ACLU Supporting Plaintiffs-Appellees Subclass a and Supporting Affirmance, Nicholson v. Scoppetta, 116 Fed. App'x 313 (2nd Cir. 2004) (Nos. 02-7079 (L) 02-7119,02-7329,02-7419,02-7086,02-7412,02-7088,02-7414), 2002 WL 32903156 (C.A.2) (opposing a New York City policy of removing children from the custody of domestic violence victims, based on the policy's impact on women's equality);
324. Dwyer, supra note 2 at 470-75 (discussing scholarly arguments against child welfare policies that have a disparate adverse impact on poor and minority race parents); ACLU Submits Brief in Texas FLDS Case Saying State Can't Separate Families Based Solely on Beliefs (May 29, 2008), http://www.aclu.org/ religion/gen/ 35468prs20080529.html; High Court Weighs Government Right to Interfere With Parents' Child Rearing Decisions (Jan. 12, 2000), http://www.aclu.org/womensrights/ parenting/13229prs2OOOOl 12.html; ACLU Nebraska Legal Program-Religious Liberty, http://www.aclunebraska.org/religious- liberty.htm (discussing the ACLU's opposition to state law requiring metabolic screening of all newboms).
325. See MYERS, supra note 182, at 89.
326. See Dwyer, supra note 2, at 452-57.
327. See MYERS, supra note 182, at 219-20;
328. Dwyer, supra note 2, at 452-57.
329. See Dwyer, supra note 2, at 431-32.
330. See id. at 452-56.
331. Washington v. Glucksberg, 521 U.S. 702, 726 (1997) (citing Planned Parenthood of Se. Pa. v. Casey, 505 U.S. 833, 851 (1992)).
332. Lawrence v. Texas, 539 U.S. 558, 565 (2003).
333. Id. (citing Roe v. Wade, 410 U.S. 113 (1973)).
334. 367 U.S. 497 (1963).
335. Id. at 543 (Harlan, ]., dissenting) (citations omitted) (opinion dissenting from dismissal on jurisdictional grounds), cited favorably in Casey, 505 U.S. at 848; Hodgson v. Minnesota, 497 U.S. 417, 446 (1990) (opinion of Stevens, J., announcing judgment of the Court);
336. Moore v. City of E. Cleveland, 431 U.S. 494, 499 (1977) (plurality opinion); Griswold v. Connecticut, 381 U.S. 479, 484 (1965).
337. See, e.g., Conkle, supra note 153, at 111-13.
338. See Dwyer, supra note 2, at 415-28.
339. See, e.g., Roberts v. U.S. Jaycees, 468 U.S. 609, 619 (1984) ("[T]he constitutional shelter afforded [highly personal] relationships reflects the realization that individuals draw much of their emotional enrichment from close ties with others ⋯. The personal affiliations that exemplify these considerations⋯ are those that attend the creation and sustenance of a family.");
340. Smith v. Org. of Foster Families for Equal. & Reform (OFFER), 431 U.S. 816, 843-44 (1977);
341. Moore, 431 U.S. at 503-05.
342. On the lifelong impact of early childhood experience, see Dwyer, supra note 2, at 415-30.
343. See Gonzales v. Carhart, 127 S. Ct. 1610, 1641 (2007) ("[LJegal challenges to undue restrictions on abortion procedures ⋯ center on a woman's autonomy to determine her life's course, and thus to enjoy equal citizenship stature.");
344. Lawrence v. Texas, 539 U.S. 558, 574 (2003);
345. Roberts, 468 U.S. at 619 (noting that constitutional protection of intimate relationships "safeguards the ability independently to define one's identity that is central to any concept of liberty");
346. JAMES G. DWYER, THE RELATIONSHIP RIGHTS OF CHILDREN 140-60 (2006) (discussing the impact of children's family life on their development of autonomy).
347. Carhart, 127 S. Ct. at 1641 (Ginsburg, ]., dissenting) ("As Casey comprehended, at stake in cases challenging abortion restrictions is a woman's 'control over her [own] destiny.'" (quoting Planned Parenthood of Se. Pa. v. Casey, 505 U.S. 833, 869 (1992) (plurality opinion))).
348. Cf. Mem'l Hosp. v. Maricopa County, 415 U.S. 250, 263 (1974) (stating that "[t]he conservation of the taxpayers' purse is simply not a sufficient state interest to sustain a durational residence requirement" on use of the county's hospital, because the requirement "severely penalizes exercise of the right to freely migrate and settle in another State").
349. Casey, 505 U.S. at 851 (quoting Eisenstadt v. Baird, 405 U.S. 438, 453 (1972));
350. see also Skinner v. Oklahoma, 316 U.S. 535, 536-37, 541 (1942) (striking down legislation which provided for the sterilization of "habitual criminal[s]"; strict scrutiny applies to sterilization laws because they involve procreation, "one of the basic civil rights of man"). While the notion of a right to have sex without creating a baby is entirely plausible as a moral matter, the notion of a moral right to create another human being while having sex is quite suspect. Rights, in their origin and in prevailing contemporary usage, protect individuals' personal integrity and self-determination, not their desires as to the existence or life course of other persons.
351. See James G. Dwyer, Parents' Religion and Children's Welfare: Debunking the Doctrine of Parents' Rights, 82 Cal. L. REV. 1371, 1405-23 (1994). Nevertheless, I take for granted in this Article that adults have a constitutionally-protected right of some scope to procreate. Its scope as a matter of positive law is uncertain; the Supreme Court upheld involuntary sterilization of "feeble-minded" persons in state institutions in Buck v. Bell, 274 U.S. 200, 205-08 (1927), but has not had occasion in recent decades to decide whether that decision is still good law.
352. Indeed the Court has noted the obvious fact that biological parenthood is not identical with social or legal parenthood. See, e.g., Lehr v. Robertson, 463 U.S. 248, 261 (1983) ("[T]he mere existence of a biological link does not merit equivalent constitutional protection.");
353. cf. Smith v. Org. of Foster Families for Equal. & Reform (OFFER), 431 U.S. 816, 843 (1977) (noting that "biological relationships are not exclusive determination of the existence of a family").
354. Troxel v. Granville, 530 U.S. 57,66 (2000) (plurality opinion).
355. Id. at 65-67 (plurality opinion) (citing precedents);
356. cf. id. at 88 (Stevens, J., dissenting) ("A parent's rights with respect to her child ⋯ are limited by the existence of an actual, developed relationship with a child, and are tied to the presence or absence of some embodiment of family."). In its most recent decision involving parents' child rearing rights, the Court implicitly treated them as less than fundamental, applying a level of scrutiny less than strict.
357. See David D. Meyer, The Constitutionality of "Best Interests" Parentage, 14 WM. & MARY BILL RTS. J. 857, 875 (2006).
358. See, e.g., Troxel, 530 U.S. at 68 (plurality opinion) ("[HJistorically [the law] has recognized 'that natural bonds of affection lead parents to act in the best interests of their children.'" (quoting Parham v. J.R., 442 U.S. 584, 602 (1979)));
359. Bellotti v. Baird, 443 U.S. 622, 637-38 (1979) (plurality opinion) ("[T]he guiding role of parents in the upbringing of their children justifies limitations on the freedoms of minors⋯. This affirmative process of teaching, guiding, and inspiring by precept and example is essential to the growth of young people into mature, socially responsible citizens.");
360. Wisconsin v. Yoder, 406 U.S. 205, 233 (1972) ("The duty [of parents] to prepare the child for 'additional obligations'⋯ must be read to include the inculcation of moral standards, religious beliefs, and elements of good citizenship." (quoting Pierce v. Soc'y of Sisters, 268 U.S. 510, 535 (1925)));
361. id. at 233-34 ("To be sure, the power of the parent, even when linked to a free exercise claim, may be subject to limitation⋯ if it appears that parental decisions will jeopardize the health or safety of the child, or have a potential for significant social burdens.");
362. id. at 535 ("[T]hose who nurture him and direct his destiny have the right, coupled with the high duty, to recognize and prepare him for additional obligations.").
363. See, e.g., Troxel, 530 U.S. at 68 ("(T]he Troxels did not allege, and no court has found, that Granville was an unfit parent. That aspect of the case is important, for there is a presumption that fit parents act in the best interests of their children ⋯ Accordingly, so long as a parent adequately cares for his or her children (i.e., is fit), there will normally be no reason for the State to inject itself into the private realm of the family ⋯ ");
364. id. at 60-61,69-70, 72 (plurality opinion) (finding that the lower court failed to accord appropriate weight to a fit parent's determination to limit her children's visitation with their grandparents);
365. Yoder, 406 U.S. at 230 ("This case, of course, is not one in which any harm to the physical or mental health of the child or to the public safety, peace, order, or welfare has been demonstrated or may be properly inferred.");
366. Meyer v. Nebraska, 262 U.S. 390, 400 (1923) ("Mere knowledge of the German language cannot reasonably be regarded as harmful. Heretofore it has been commonly looked upon as helpful and desirable ⋯. His right thus to teach and the right of parents to engage him so to instruct their children, we think,
367. see also Troxel, 530 U.S. at 80 (Thomas, J., concurring) ("Washington lacks even a legitimate governmental interest ⋯ in second-guessing a fit parent's decision ⋯.").
368. Lehr, 463 U.S. at 261.
369. See Meyer, supra note 230, at 870-72.
370. Lehr, 463 U.S. at 248,261-62,266-67; Quilloin v. Walcott, 434 U.S. 246,254-56 (1978).
371. See, e.g., Stanley v. Illinois, 405 U.S. 645, 652-53 (1972) ("We do not question the assertion that neglectful parents may be separated from their children ⋯. What is the state interest in separating children from fathers without a hearing designed to determine whether the father is unfit in a particular case?").
372. 405 U.S. 645.
373. Id. at 656-57 & n.9,658.
374. 434 US. 246 (1978).
375. Id. at 255 (quoting Smith v. Org. of Foster Families for Equal. & Reform (OFFER), 431 U.S. 816, 862-63 (1976) (Stewart,]., concurring)).
376. See, e.g., Adoption of Kelsey S., 823 P.2d 1216, 1236 (Cal. 1992) (en bane);
377. In re Kirchner, 649 N.E.2d 324, 334, 339 (111. 1995);
378. In re Baby Girl Clausen, 502 N.W.2d 649, 666-67 (Mich. 1993);
379. In re Raquel Marie X., 559 N.E.2d 418,424 (N.Y. 1990).
380. Lehr v. Robertson, 463 U.S. 248, 262 (1983) ("The significance of the biological connection is that it offers the natural father an opportunity that no other male possesses to develop a relationship with his offspring.").
381. See Meyer, supra note 161, at 805-06 (noting that the "history and tradition" approach has been relied on especially in recent Supreme Court decisions);
382. id. at 809 (characterizing the traditional-recognition test for substantive due process rights as "the Court's dominant methodology in the family-privacy context").
383. See Hong, supra note 5, at 14-24. The proper level of specification in the case of parents' rights would include reference to parents and unfitness, because it is clearly morally relevant, in a way that weakens the asserted claim, that the relationship is one of custody over a helpless and quite vulnerable person and that the individual asserting the right is known to present a danger to that helpless, vulnerable person.
384. 491 U.S. 110 (1989) (plurality opinion).
385. See id. at 113-17, 129. The four dissenters in that case-Justices Brennan, Marshall, Blackmun, and White-are now all gone from the Court.
386. Id. at 136,157.
387. Id. at 123-24. Some lower courts nevertheless continue to apply the "biology plus" test established by the earlier unwed father cases.
388. See, e.g., In re St. Vincent's Servs., 841 N.Y.S.2d 834, 848-852 (N.Y. Fam. Ct. 2007).
389. Michael H., 491 U.S. at 142-43 (Brennan, J., dissenting);
390. see also id. at 143 n.2 ("[A] mere biological connection is insufficient to establish a liberty interest on the part of an unwed father.");
391. Smith v. Org. of Foster Families for Equal. & Reform (OFFER), 431 U.S. 816, 844 (1977) (stating that "the importance of the familial relationship, to the individuals involved and to the society, stems from the emotional attachments that derive from the intimacy of daily association" and noting that for a child who has never known his biological parents, a relationship with other caregivers "should hold the same place in the emotional life of the ⋯ child, and fulfill the same socializing functions, as a natural family");
392. id. at 845 n.53 ("The legal status of families has never been regarded as controlling ⋯ .").
393. See Meyer, supra note 230, at 878 (indicating that a birth parent's interest in becoming a legal parent might receive less constitutional protection than the interest of someone who has already served for a time as a child's legal parent (whether a biological parent or an adoptive parent) in remaining in that role);
394. David D. Meyer, A Privacy Right to Public Recognition of Family Relationships? The Cases of Marriage and Adoption, 51 VILL. L. REV. 891, 891-95 (2006) (showing that as a general matter the Supreme Court has interpreted the privacy right to protect already existing familiar relationships from government interference and not as a right to state's affirmative assistance in forming relationships).
395. 463 U.S. 248 (1983).
396. Dawn D. v. Superior Court, 952 P.2d 1139, 1144-45 (Cal. 1998);
397. see also Lisa I. v. Superior Court, 34 Cal. Rptr. 3d 927,937 (Ct. App. 2005) ("[W]hen there is no existing relationship between the claimed biological father and the child, courts must defer to legislative choices reflected in paternity statutes.");
398. Callender v. Skiles, 591 N.W.2d 182, 188 (Iowa 1999) (citing decisions in numerous other states refusing to recognize a due process right on the basis of biological fatherhood). Some state courts have held that biological fathers per se have a protected liberty interest under state constitutions.
399. See id. at 187-90 (concluding that there is such a right under Iowa's state constitution and citing similar decisions in Colorado and Texas).
400. 57F.3d789(9thCir. 1995).
401. Id. at 791.
402. Id. at 793-94.
403. Id. at 794. The court distinguished Moore v. City of East Cleveland, 431 U.S. 494 (1977), on the grounds that "Moore was a case about breaking up an existing family unit, not a case about creating an entirely new one." Mulliro, 57 F.3d at 794.
404. Muffins, 57 F.3d at 794;
405. see also id. at 796.
406. See Santosky v. Kramer, 455 U.S. 745, 769 (1982) (applying a clear and convincing evidence standard);
407. Lassiter v. Dep't of Soc. Servs., 452 U.S. 18 (1981) (noting the right to an appointed attorney).
408. See, e.g., Hodgson v. Minnesota, 497 U.S. 417, 444 (1990) ("The State has a strong and legitimate interest in the welfare of its young citizens.");
409. Lassiter, 452 U.S. at 27 (1981) ("[T]he State has an urgent interest in the welfare of the child ⋯.");
410. Zablocki v. Redhail, 434 U.S. 374, 388 (1978) (accepting for the sake of analysis that protecting the welfare of children is a "substantial interest[]");
411. Prince v. Massachusetts, 321 U.S. 158, 166-67 (1944) (describing ways in which, "[a]cting to guard the general interest in youth's well-being, the state as parens patriae may restrict the parent's control"). Lower courts have said this many times as well.
412. See, e.g., In re Sheneal W. Jr., 728 A.2d 544, 552 (Conn. Super. Ct. 1999) ("[lit is beyond debate that the state has a compelling interest in protecting children.");
413. G.B. v. Dearborn County Div. of Family and Children, 754 N.E.2d 1027, 1032 (Ind. Ct. App. 2001) ("[T]he state has a compelling interest in protecting the welfare of children.");
414. In re K.M., 653 N.W.2d 602, 609 (Iowa 2002) (referring to "the State's compelling interests in identifying parents who pose a risk to the safety and well being of their children and providing such children with the nurturing care and treatment they have a right to expect").
415. See, e.g., In re Custody and Parental Rights of A.P., 172 P.3d 105 (Mont. 2007);
416. Renee J. v. Superior Court, 28 P.3d 876, 878, 886 (Cal. 2001);
417. In re Baby Boy H., 73 Cal. Rptr. 2d 793, 796, 799 (Ct. App. 1998);
418. G.B., 754 N.E.2d at 1030-32;
419. State ex rel. Children, Youth & Families Dep't v. Amy B., 61 P.3d 845 (N.M. Ct. App. 2002);
420. cf. Sheneal W. Jr., 728 A.2d at 546, 552 (holding that the retroactive application of a statute providing for termination of parental rights when a parent has intentionally assaulted another child of the parent did not violate the parent's due process rights);
421. Winnebago County Dep't of Soc. Servs. v. Darrell A., 534 N.W.2d 907, 909-10 (Wis. Ct. App. 1995) (holding that the termination of parental rights pursuant to a statute making intentional homicide of parent grounds for termination did not constitute ex post facto law, did not violate the father's due process or equal protection rights, and did not constitute double jeopardy).
422. G.B.,754N.E.2datl032.
423. See, e.g., Troxel v. Granville, 530 U.S. 57, 88 (2000) (Stevens, J., dissenting) (referring to "the State's long-recognized interests as parens patriae and, critically, the child's own complimentary interest in preserving relationships that serve her welfare and protection" and citing several Court precedents).
424. See Brown, supra note 150, at 42 ("ITihe Constitution has required legislatures, when seeking to restrict important liberties of their people, to provide reasons that relate to the demands of organized society, generally referred to as the police power.").
425. 358 F.3d 804 (11th Cit. 2004).
426. Id. at 809-10 ("Because of the primacy of the welfare of the child, the state can make classifications for adoption purposes that would be constitutionally suspect in many other areas.").
427. For an extended argument in support of this proposition, see generally DWYER, supra note 224, at 68-122.
428. 497 U.S. 261 (1990).
429. Id. at 266-67, 285-87 (1990);
430. see also id. at 315-16 (Brennan, J., dissenting) (asserting that the state's only legitimate interest in connection with cessation of treatment was "a parens paniae interest in providing Nancy Cruzan, now incompetent, with as accurate as possible a determination of how she would exercise her rights under these circumstances").
431. For an extended explanation and defense of this idea of stepping outside the Constitution, see DWYER, supra note 224, at 188-203.
432. See, e.g., JOHN BOSWELL, THE KINDNESS OF STRANGERS: THE ABANDONMENT OF CHILDREN IN WESTERN EUROPE FROM LATE ANTIQUITY TO THE RENAISSANCE (1988).
433. See Dwyer, supra note 2, at n.97.
434. David Meyer argues, from a parents' rights standpoint, that the greater intensity of a birth parent's interest in becoming a legal parent, relative to, for example, a legal parent's interest in not having to allow a grandparent to visit a child, would lead courts to scrutinize relatively rigorously a parentage law that excluded some birth parents. Meyer, supra note 230, at 879 ("[T]he total loss of even an expectancy of a parent-child relationship remains a very substantial imposition on the individual, increasing the appropriate degree of scrutiny.").
435. See Dwyer, supra note 2, at 461-64.
436. Id. at 412-28.
437. See DWYER, supra note 224, at 186-88.
438. See, e.g., Pennsylvania Department of Public Welfare, Pennsylvania Child Abuse History Clearance Forms, http://www.dpw.state.pa.us/ PartnersProviders/ChildWelfare/003671038.htm (last visited Aug. 4, 2008) (setting forth requirements in Pennsylvania).
439. See Kristen Campbell Johnson, Comment, Unde Sam's Cure for Deadbeat Parents, 20 J. AM. ACAD. MATRIM. LAW. 311,320 (2007).
440. Pub. L. No. 109-162, 831-33, 119 Stat. 2960, 3066 (2006) (codified in scattered sections of 8 U.S.C.).
441. See European Connections & Tours, Inc. v. Gonzales, 480 F. Supp. 2d 1355, 1369, 1380 (N.D. Ga. 2007).
442. Cf. David D. Meyer, The Constitutionality of "Best Interests" Parentage, 14 WM. & MARY BILL RTS. J. 857, 879 (2006) ("[C]ourts are likely to demand something more than simply the state's discernment of a marginal advantage to a child from shifting parentage away from a figure widely regarded as a parent by social consensus.").
443. Hodgson v. Minnesota, 497 U.S. 417, 435 (1990) (citing decisions of the Court relating to prisoners' right to marry, inter-racial marriage, and abortion);
444. see also id. at 452 ("[A] state interest in standardizing its children and adults, making the 'private realm of family life' conform to some state-designed ideal, is not a legitimate state interest at all,").
445. 466 U.S. 429 (1984).
446. Id. at 430, 433.
447. Dwyer, supra note 2, at 445.
448. See id.
449. See, e.g., ARK. CODE ANN. § 12-12-503(12)(B)(i)(a)-(b) (Supp. 2007);
450. COLO. REV. STAT. § 19-1-103(1 )(a)(VII) (2008).
451. See, e.g., Gonzales v. Carhart, 127 S. Ct. 1610, 1619 (2007) (upholding a ban on partial birth abortions);
452. Roe v. Wade, 410 U.S. 113, 150, 164-65 (1973) (upholding the right to abortion prior to a woman's third trimester but affirming the state's interest in the life of the fetus even prior to that time).
453. An alternative approach to effectuating newborn children's substantive due process right as to parentage, and one more consistent with the traditional mindset and so more comfortable for courts and legislatures, would be to invest legal parent status in birth parents, as is currently done, but to require child protective services agencies to respond to the cross-checking and substance abuse reporting by immediately petitioning for TPR, thereby shifting the onus of initiating a fitness hearing from birth parents to the state. If a court orders the TPR, then the state-selected caregivers for the child would, correspondingly, petition for adoption under existing adoption laws rather than, as proposed below, for initial legal parenthood under amended parentage statutes. This approach is less desirable from the newbom's perspective because it continues to stack the deck unduly in favor of birth parents, and it invokes procedures associated conceptually with parental rights rather than children's rights, thus encouraging the human actors involved to continue to identify more with the birth parents than with the children, contrary to their proper role as proxies for the children, and thereby making more likely bad decisions and delays.
454. 455 U.S. 745 (1982).
455. Id. at 760, 769.
456. See, e.g., State ex rel. Children, Youth & Families Dept v. Amy B., 61 P.3c1 845, 849 (N.M. Ct. App. 2002).
457. Cf. Carhart, 127 S. Ct. at 1639 (stating that a plaintiff advancing a facial challenge to a statute must establish that "no set of circumstances exists under which the Act would be valid" (quoting Ohio v. Akron Ctr. for Reproductive Health, 497 U.S. 502, 514 (1990))).
458. Cf. Boddie v. Connecticut, 401 U.S. 371,379 (1971) (stating that "a statute or a rule may be held constitutionally invalid as applied when it operates to deprive an individual of a protected right although its general validity as a measure enacted in the legitimate exercise of state power is beyond question").
459. Cf. County of Sacramento v. Lewis, 523 U.S. 833,841 n.5 (1998).