Rethinking parental rights

This is more than a week old, but I’ve finally figured out how I want to make my point. Two unrelated stories demonstrate how I believe we should view parental rights. First, here’s a useful ruling from Nebraska:

A federal judge has refused to throw out Nebraska’s one-of-a-kind newborn blood screening law. Ray and Louise Spiering of Saunders County filed a lawsuit challenging the law in 2004, arguing that the mandatory blood test would violate a tenet of their religious beliefs as members of the Church of Scientology.

On Tuesday, U.S. District Judge Richard Kopf said the law is constitutional.

In Tuesday’s ruling, Kopf said “Nebraska’s program is rationally related to a legitimate governmental interest.”

“It is true that the due process clause of the Fourteenth Amendment protects the `fundamental right’ of parents to make decisions as to the care, custody and control of their children,” Kopf said. “But it is equally true that a state is not without constitutional control over parental discretion in dealing with children when their physical or mental health is jeopardized.”

Then there is this story about the parents who allegedly kidnapped their pregnant 19-year-old daughter, took her to another state, and tried to force to abort her fetus because the baby’s father is black. I won’t examine the parental right aspect of that crime because it’s obvious. This case and the Nebraska ruling have an impact on the parental rights discussion in relation to circumcision.

Defenders of parental choice for non-medically indicated infant circumcision discuss the surgery’s potential benefits. Whether it’s urinary tract infections, penile cancer, or HIV, few claims are insufficient to allow parents the right to alter their children sons. I’ve argued the opposite side of that debate, stating that the inherent risks and potential complications are enough to protect boys from unnecessary surgery. We expect one standard for every surgery on girls and every surgery but circumcision for boys, but we grant parents virtually unlimited choice in reasons for male infant circumcision. There is no medical validity required. Parents don’t have to concern themselves with that in today’s medical/legal environment.

Anything beyond the medical non-necessity of most circumcisions shouldn’t be required in the discussion. Once that’s established as the default biological scenario for boys, his right to bodily integrity would be enough. Yet, I’ve heard libertarians debate parental choice for circumcision, with the conclusion by some that parents do have the right to impose it for their own reason(s). As a libertarian it makes me angry to hear this logic. My understanding of libertarianism focuses on individual rights. Children have those rights, with parents acting as guardians of those rights. This guardianship does not transform parents into property owners. To permit surgery, the child must need circumcision. Parental preference for any reason is not sufficient, given his right to bodily integrity.

The bits of Judge Kopf’s ruling I’ve highlighted demonstrate why I’m content with demanding the force of law to protect boys from unnecessary circumcision. Surgical amputation of an individual’s healthy tissue is harmful. There is a legitimate government interest in protecting individuals from harm. Libertarian principles as I understand them demand the protection of boys from unnecessary surgery, just as we protect girls. Surprisingly, I’m in the minority in my opinion. A comment on the second story at Hit and Run clarified for me what I believe is the key distinction necessary for parental rights:

I marvel that two people could have the foresight to take their daughter to a state with more liberal abortion laws while completely missing the fact you can’t force an adult to undergo unwanted surgical procedures.

Comment by: QuietReaderGirl at September 19, 2006 02:24 PM

But you can force a child to undergo unwanted surgical procedures. That’s too blunt, since strict enforcement of that as a rule would eliminate medically necessary surgery if the child decided against it. I’m arguing for sane interpretation of what a reasonable person would want. A sane person would choose life over death. But I contend that a sane person would choose a healthy foreskin over no foreskin, which is the right way to assess infant circumcision. (If he doesn’t, he still has the choice, but intact men don’t generally rush to undergo circumcision. My default assumption.) Routine circumcision is prevention without thought. It’s maddening.

The context of the second story provides a useful scenario. What would we think of parents who force their underage daughter to undergo an abortion she doesn’t want? Would a reasonable doctor perform it? Should a doctor perform it, if her parents deem it to be in her best interest based on statistics concerning teenage mothers or for any other reason they choose?

The idea is preposterous. Unwanted and unneeded surgery on boys is equally preposterous. Parental rights are not unlimited.

First link via Hit and Run.

3 thoughts on “Rethinking parental rights”

  1. Ultimately, I believe the issue of infant circumcision and its legality will wind up being decided by the Federal judiciary. But I have to admit, I’m not hopeful about the outcome.
    The Constitution’s “free exercise” of religion clause stands as a major impediment to progress in this area. The “free exercise” clause was one of the biggest mistakes the Founding Fathers ever made.
    The worst thing about the “free exercise” clause is that it creates the impression that religious folks can be legitimately exempted from laws that everyone else has to obey. And as it turns out, that’s exactly how the courts in this country have chosen to interpret it.
    When the issue of infant circumcision and its legality finally do come to the attention of the Federal judiciary, I have no doubt that the “free exercise” clause will rear its ugly head again as a blanket excuse for allowing the practice to continue. It’s a very depressing thought, and that’s why I’m not hopeful.

  2. I’m not sure the federal judiciary will be the catalyst. I suspect the ultimate abandonment of circumcision will occur the way it did in Britain. Once insurance and Medicare stop paying for the procedure, it’s prevelance will decline. The foreskin will become socially acceptable and future generations of parents won’t think of having it done, if they think about it at all.
    I do think the federal judiciary should address it, and soon. Routine infant circumcision is a clear rights violation, and allowing it to continue in America is a travesty. But I don’t believe the notion of free religious exercise is the problem. That is one of the most principled (and stabilizing) decisions our Founding Fathers made. I think you get it right when you mention that our interpretation of free exercise exempts circumcision from critical analysis.
    Americans should remain free to practice their chosen religion. They may even continue to choose a religion for their children, although I believe children should be allowed to choose sooner rather than later. Instructing children is a valid parental obligation, whether it be religion or social etiquette. However, a parent’s right to exercise his or her religion stops at the physical body of another person (the child, in the case of circumcision). Physical harm, and that’s what surgery without indication is, can not be justified under our Constitution. That’s our interpretive flaw, which is the basis for continued acceptance of circumcision.
    FYI, I discussed this here:

  3. “Once insurance and Medicare stop paying for the procedure, it’s prevelance will decline.”
    I remember someone making a similar statement 25 years ago. It’s now 2006 and most insurers are still footing the bill for circumcision.
    And whenever someone quizzes them about their policy, they always defend themselves by saying that parental demand for the procedure is strong. Your basic catch-22.
    Also, unscrupulous doctors (of which there’s no shortage) have had no problem getting around the barriers to reimbursement that were put in place by the few insurance companies who dropped their coverage. They just claim on the form they have to fill out that the circumcision was performed for some bogus medical reason (phimosis seems to be their favorite) and the insurance companies are more than happy to continue paying for the procedure with a wink and a nod.
    The single-payer system was the crucial factor that caused circumcision to suddenly fall out of favor in Britain, but the US doesn’t have a single-payer system so you can’t really compare their history to ours.
    Regarding the “free exercise” clause…it may have seemed like the principled thing to do at the time of its enactment, but it can hardly be called stabilizing since it opened the door to all manner of judicial mischief. That’s never a good thing.
    If the clause had been written like this: “…nor prohibiting the free exercise thereof in accordance with civil law…” (or wording to that effect), THAT would’ve been stabilizing. There needs to be an affirmation in the clause that religious folks are indeed obligated to obey the same laws that everyone else has to and that judges do not have the authority to capriciously exempt them.
    Judges should not be able to create a priveleged class of people with special rights not enjoyed by others.

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