pointedview (pointedview) wrote,

A clear case of judicial activism

From MetaFilter and the Republic of T.:

Florida judge blocks 13-year-old from having an abortion

Excerpt from the Palm Beach Post article:

Under Florida law, a 13-year-old can have an abortion without her parents knowing or agreeing. The legislature is considering a bill this session that would require parental notification, but not consent, for girls under the age of 16.

In 1988 and 1999, Florida tried to pass laws requiring minors to get their parents' permission to have an abortion. The Florida Supreme Court struck both down as unconstitutional.

The girl in question is not of age (in Florida) to give legal consent to engage in sexual intercourse. I have read nothing in the news thus far regarding an investigation of how she became pregnant. Where is the father, and how old is he? It is possible that she may have been raped, for all I've been able to find on it at this point.

Of course, allowing those in the care of the state of Florida to be raped and forced to bear a child without their consent is apparently nothing new. I was even more repulsed to read this portion of the Post article:

L.G.'s case continues a debate that started in 2003, in the case of J.D.S., a severely retarded woman who was raped in a state group home. Gov. Bush intervened in that case, asking that the state be allowed to appoint a guardian to speak for the best interests of the fetus. The courts rejected his efforts as unconstitutional.

J.D.S. ultimately carried the baby to term, and a family adopted "Baby Grace."

Bush's critics argued that the state should have been more worried about how J.D.S. was raped in the first place, and they pointed out that she herself did not have a guardian until the pregnancy.

It is absolutely revolting that an individual who is severely mentally retarded should be forced to bear a child without knowledge or comprehension of what is happening to her and to her body. She was raped: there is no question of that. She is incapable of caring for herself, much less a child. Put bluntly, it is not her fault that her reproductive organs work but her mind doesn't. Nobody ever intended for that child to come into the world.

One can't exactly accuse Florida of legislative consistency, given that L.G. is able under their current set of statutes to decide to have an abortion, but technically not legally able to consent to sexual intercourse in the first place.

What place has autonomy here? Can the state be recognized as the responsible caregiver? Another excerpt from the article:

DCF spokeswoman Marilyn Munoz said Wednesday that DCF is "acting in the best interest of the child." She cited a Florida state law that says DCF cannot permit an abortion without a judge's consent, but declined further comment.

I'd like to see a little more documentation on that state law, but look to the inherent hypocrisy of the statement: how can they claim that they are "acting in the best interest of the child" when she became pregnant on their watch in the first place? Essentially, if we recognize Florida's Department of Children and Familes as the acting parent here, can we take L.G. out of their custody, as they have proven themselves to be inattentive and irresponsible guardians? Can they be charged with neglect, given that L.G. had no guardian prior to this court case, as stated in the article?

Or do we say that L.G.'s actions were beyond their control? If the latter, do we recognize cognizant consent on L.G.'s part?

There are many complex questions that pertain. However, regardless of how she reached her current physical state, these two factors may be used to determine what is truly in the best interest of L.G.:

  1. It is her body. I have always maintained that, be it tribal scarification of a young boy, an unwanted pregnancy, or some other circumstance involving a permanent outcome, the procedure should be delayed until the individual is old enough to make an informed decision.

    If such a delay is not possible, for example, in the case of a pregnancy where a permanent outcome will be determined involuntarily if no intervention is made, then the individual affected should be informed in an unbiased fashion of the resulting consequences of selecting each available option, and allowed to decide. If the individual is truly too young to communicate such a decision, then the parents or guardians, if they have been determined to be fit to serve as the individual's advocates, will have to make the decision for the individual.

  2. The law of the state currently allows minors to have abortions without parent or guardian consent. Given this, even if we overlook their negligence and acknowledge DCF as her guardian, their opinion is irrelevant under the law. L.G. has the legal right to have an abortion.

Thus, the judge and the DCF are acting in flagrant violation of Florida law (and, as the ACLU points out, federal ruling) by denying L.G. the option of self-determination concerning her future.

This very point is also raised by the ACLU:
Because L.G. was abused or neglected, she has no legal parents but the state. But even as her custodian, the state has no more right to stop her decision than her parents would, the ACLU said.

The law is clear on the matter. Now the only question is whether the activist Right will trump the law.
Tags: civil liberties, gender-related, news

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