Family Law In A Post Dobbsian World | Fox Rothschild LLP

On June 24, 2022, the United States Supreme Court reversed its 1973 decision in Roe v. Wade holding that the earlier decision had no constitutional foundation and therefore should be afforded no precedential value. The prevailing 6-3 majority stated that the prior 7-2 decision was “egregiously wrong” “exceptionally weak” and produced “damaging consequences.” Slip at p. 6.

            Obviously, precedent is limited to the facts of the case but we all recognize that the words employed by the United States Supreme Court “matter” well beyond the direct holding of the case decided. For those who follow judicial trends, it may also be worthwhile to look at the case decided by the Supreme Court one day earlier in New York State Rifle Association v. Bruen, also on a 6-3 basis.

            Both of these cases radiate the high court’s embrace of “original intent”, the idea that except where reversed by constitutional amendment or express legislative enactment, courts should interpret law premised upon the work of the Constitutional Convention of 1789 and the subsequent addition of the 1791 Bill of Rights. In fact these decisions are replete with recitations of the law of 18th century England including citation to Edward Coke’s Institutes (1644);  Matthew Hale’s Pleas of the Crown (1736) and William Blackstone’s Commentaries (1765). We even have some reference to Henry de Bracton’s Laws and Customes of England, a work published circa 1235 A.D.  In the Dobbs case, we are informed that courts must make this kind of historical analysis whenever a “liberty” interest under the due process clause of the Fifth Amendment is evaluated. Slip at 13. Courts must be “reluctant” to recognize rights not mentioned in the Constitution. Id. at 14.

            What is most telling about this approach in a family law context is the references in Dobbs to the concept of privacy. The opinion of Justice Alito is undeniably accurate in noting that the Constitution does not contain any express right to terminate a pregnancy. Slip at p.9. But he then observes that in deciding Roe his predecessors became “remarkably loose” in inferring a right to secure abortion as an element of the right to privacy. Alito states that there is no explicit reference to a right to privacy in the text of the Constitution or its amendments. The right, if it existed was assumed to “spring” from the first, fourth, fifth, ninth and fourteenth amendments to the Constitution. Alito cites to Roe at 410 U.S. at 153. Meanwhile the Dobbs opinion cites an 1850 case, Commonwealth v. Mills, where the state supreme court held; “By the well settled and established doctrine of the common law, the civil rights of an infant …are fully protected at all periods after conception.” 13 Pa. 631 (1850).

            The implications of the “spirit” of Dobbs are far-reaching when one considers this sentence: “[Roe] held that the abortion right, which is not mentioned in the Constitution, is part of a right to privacy, which is also not mentioned. {emphasis supplied}. As lawyers like to say “words matter” and the challenge to the right to privacy brings forth a host of potential family law issues. We have Justice Barrett who joined the Alito opinion and a concurring opinion by Justice Thomas that expressly suggests that decisions like Obergefell, Griswold and Lawrence need review. The concurrences of Justices Kavanaugh and Roberts are much more restrained.

            The thrust of the reasoning employed in both Dobbs and New York State Rifle Association (overturning New York’s 1911 gun regulations) suggests that constitutional lawyers better dust off their copies of Blackstone, Bracton, Hale and Coke when next appearing before the Supreme Court. But there are implications for the family law bar that are big.

            In Stanley v. Illinois, that state had a statute which provided that should the mother of an illegitimate child die, the child became the ward of the state. Peter Stanley sued stating that he was entitled to a hearing on the subject of who would have custody of children that were his. In 1972 the U.S. Supreme Court agreed saying:

The Court has frequently emphasized the importance of the family. The rights to conceive and to raise one’s children have been deemed “essential,” Meyer v. Nebraska, 262 U. S. 390262 U. S. 399 (1923), “basic civil rights of man,” Skinner v. Oklahoma, 316 U. S. 535316 U. S. 541 (1942), and “[r]ights far more precious . . . than property rights,” May v. Anderson, 345 U. S. 528345 U. S. 533 (1953).

“It is cardinal with us that the custody, care and nurture of the child reside first in the parents, whose primary function and freedom include preparation for obligations the state can neither supply nor hinder.”

Prince v. Massachusetts, 321 U. S. 158321 U. S. 166 (1944). The integrity of the family unit has found protection in the Due Process Clause of the Fourteenth Amendment, Meyer v. Nebraska, supra, at 262 U. S. 399, the Equal Protection Clause of the Fourteenth Amendment, Skinner v. Oklahoma, supra, at 316 U. S. 541, and the Ninth Amendment, Griswold v. Connecticut, 381 U. S. 479381 U. S. 496 (1965) (Goldberg, J., concurring).

This soaring language is bereft of reference to the Constitution except through those same Constitutional amendment interpretations which the current court finds “exceptionally weak.” 

In that same year, Amish families living in Wisconsin had been prosecuted by the state for violations of state law requiring children to attend school beyond eighth grade. In Wisconsin v. Yoder the Court held that the state interest in the education of its citizens needed to be balanced against the First Amendment’s freedom of religious exercise. It concluded:

“…compulsory school attendance to age 16 for Amish children carries with it a very real threat of undermining the Amish community and religious practice as they exist today; they must either abandon belief and be assimilated into society at large or be forced to migrate to some other and more tolerant region.

Note well that school attendance is not addressed in the Constitution; there being no such thing as a public school in the 18th century. Nowhere is it suggested that Wisconsin had undertaken any act to establish a religion or prohibit its free exercise. It just wanted Wisconsin kids to finish 10th grade.

            In 1965 the Supreme Court took up a Connecticut statute making it a misdemeanor to distribute contraceptives. In holding the statute impermissible the Court said: “We deal with a right of privacy older than the Bill of Rights — older than our political parties, older than our school system. Marriage is a coming together for better or for worse, hopefully enduring, and intimate to the degree of being sacred. It is an association that promotes a way of life, not causes; a harmony in living, not political faiths; a bilateral loyalty, not commercial or social projects. Yet it is an association for as noble a purpose as any involved in our prior decisions.”

Again, lefty words but nowhere in the Constitution is there a reference to marriage. In fact, scholars seem to unanimously agree that the concept that humans have a right to privacy dates to an 1890 law review article published by Samuel Warren and Louis Brandeis. 4 Harvard Law Review 193.

            Loving v. Virginia involved enforcement of Virginia’s Racial Integrity Act of 1924 making it a felony to marry outside one’s race. Virginia defended the law asserting that it did not violate the 14th Amendment because it did not discriminate on the basis of race. Both white and black people who married were each guilt of the same crime and subject to the same five years of imprisonment. In 1967, the Supreme Court found that there was no state interest in regulating such marriages and that it violated a vital personal right essential to the orderly pursuit of happiness by free men. 388 U.S. 1. Needless to say, the founders would have “found” differently on this matter notwithstanding their conflicted views on slavery itself.

            Most recent was the 2000 decision in Troxell v. Granville. In that case a single mother resisted efforts by paternal grandparents to secure a partial custody order. The majority opinion of Justice O’Connor noted how much the definition of “family” had evolved in the 20th century and that all 50 states had enacted some form of grandparent custody law. Nonetheless, a majority found that:

 “The liberty interest at issue in this case–the interest of parents in the care, custody, and control of their children–is perhaps the oldest of the fundamental liberty interests recognized by this Court. More than 75 years ago, in Meyer v. Nebraska, 262 U.S. 390, 399, 401 (1923), we held that the “liberty” protected by the Due Process Clause includes the right of parents to “establish a home and bring up children” and “to control the education of their own.” Two years later, in Pierce v. Society of Sisters, 268 U.S. 510, 534—535 (1925), we again held that the “liberty of parents and guardians” includes the right “to direct the upbringing and education of children under their control.” We explained in Pierce that “[t]he child is not the mere creature of the State; those who nurture him and direct his destiny have the right, coupled with the high duty, to recognize and prepare him for additional obligations.” Id., at 535. We returned to the subject in Prince v. Massachusetts, 321 U.S. 158 (1944), and again confirmed that there is a constitutional dimension to the right of parents to direct the upbringing of their children. “It is cardinal with us that the custody, care and nurture of the child reside first in the parents, whose primary function and freedom include preparation for obligations the state can neither supply nor hinder.” Id., at 166.

            Thus, from a family law perspective Roe v. Wade was not an aberration but the product of an evolving doctrine respecting privacy that might be said to trace it roots to the Third Amendment. That one that forbade the government from quartering troops in the homes of citizens. In fact, the entire law of search and seizure in a criminal context is tied to the concept that only in the most exigent of circumstances is a person’s privacy to give way to public need for inspection.

            Pennsylvania has an Abortion Control Act that was passed in 1982, nine years after Roe v. Wade. It states that in every…civil and criminal proceeding….the law shall be construed so as to extend to the unborn the equal protection of the laws….” 18 Pa.C.S. 3202(c). From this it is fair to infer that an embryo is a person much as the Pennsylvania Supreme Court suggested long ago in Com. v. Mills. It would also seem self-evident that a custody action is a civil proceeding.

            Let us suppose that two adults embark upon the common enterprise of conceiving a child together. This fact is either uncontested or can be show by either genetic testing or other indicia of joint undertaking (announcements, joint prenatal arrangements etc.). For whatever reason, the relationship ends while the mother is pregnant. She chooses to return to return to Florida where she spent her entire life. Is this not a “relocation” under 23 Pa.C.S. 5337? If so, it requires either the consent of “every person who has custody rights” or judicial approval. We are used to thinking that a child is someone who has been born. But the Crimes Code cited above informs us that unborn children are entitled to equal protection in every proceeding. Suppose the mother informs the father than she intends to terminate the pregnancy. Under the Crimes Code abortions are still legal in Pennsylvania up the 24th week. 18 Pa.C.S. 3211(a). But can’t a father secure an injunction preventing the abortion? May he ask the Court to appoint a guardian “to represent the child in the action?” 23 Pa.C.S. 5334? In a recent Supreme Court case, the question posed to the court was whether a mother could be charged with abusing a child whom she was carrying under the Child Protective Services Law(CPSL). The Courts and the parties agreed that a fetus was not a child under that law although consistent with the custody statute the statutory definition says a child is an “individual under 18 years of age.” 23 Pa.C.S. 5322 (custody) 6303 (CPSL). Meanwhile in Commonwealth v. Booth and Com. v. Bullock we find this language: “Today it is understood that a mother and her unborn child are separate and distinct entities, and that medicine is generally able to prove the corpus delicti of the homicide of an unborn child.”).   It is also clear that, by defining unborn child to include all stages of gestation, see supra note 2, the General Assembly intended to eliminate any viability requirement.   Accord People v. Ford, 221 Ill.App.3d 354, 163 Ill.Dec. 766, 581 N.E.2d 1189, 1198 (1991) (reaching same conclusion with regard to a similarly-worded definition of unborn child). 913 A.2d 207 (Pa. 2006). Bullock deals with a statute termed the Crimes Against the Unborn Child Act, 18 Pa. C.S. 2601 et seq. which remains in effect but exempts pregnant women from criminal liability.

            In a world where the U.S. Supreme Court has offered in a plurality opinion that privacy rights may have little or no constitutional basis, we also may have to revisit D.P. v. G.J.P. 146 A.3d 204 (Pa. 2017) That case held that Pennsylvania’s grandparent custody statute offended principles of privacy and was partially if not wholly unconstitutional. That 2017 decision begot an amendment to the custody standing statutes to address the privacy concerns that were delineated in Troxell v. Granville.

            The problem here is the privacy issue. In almost each of the U.S. Supreme Court cases we have cited until 2022, there was evolving law suggesting there was a right of privacy associated with parents having the power to manage their children without state (Wisconsin v. Yoder) or outside family interference (Troxell). This begot remediating legislation from the General Assembly. Under the current standing law in Pennsylvania, these protections still exist concerning third parties (non parents). To bring or participate in custody proceedings the third party must be (a) in loco parentis (b) a grandparent with having a relationship with the child with parental consent or a court order where the child is adjudicated dependent in a juvenile proceeding (c) substantially at risk because of parental abuse, neglect or incapacity or (d) resident with the grandparent for 12 or more consecutive months. The grandparent must assert a willingness to “assume responsibility” for the child. A third party (non grandparent) can intervene only if neither parent has any form of custody or control. 23 Pa.C.S. 5324-25.

            There will be two forces at work here as we look forward. The first is the continuing issue of parents who are non functioning in that role. The courts and the juvenile systems in the Commonwealth are facing ever growing demand for services because of failed parents. The second force is whether the Supreme Court of the United States is signaling to legislatures that the privacy based reasoning of cases like Troxell and D.P. v. G.J.P. will be jettisoned because it has no Constitutional basis in what may best be termed the “founding documents” that date to 1776-1791. The problem with the latter perspective is that there is very little family law related to that period. And what we do have seems to be a tad harsh. As the much cited William Blackstone wrote of bastard children the mother was to be placed in the house of correction for up to a year but only if the child became a ward of the local church parish, for “otherwise the maintenance of the child is considered as a degree of punishment.” IV Blackstone, Commentaries p. 65 (1765). Modern times are different times and in family law, the experiences of Charles Dickens don’t do much to inform our current trends in creating and raising children.

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