Author archives: Chris Gacek

Terri Schiavo Remembered

by Chris Gacek

March 31, 2008

March 31st marks the third anniversary of the death of Terri Schindler Schiavo. I would feel remiss in not alerting our readers to the excellent Washington Times op-ed on her case by Nat Hentoff published today. As Mr. Hentoff points out:

The reason Congress asked the federal courts to review the Schiavo case was that the 41-year-old woman about to be dehydrated and starved to death was breathing normally on her own and was not terminal.

This was not a right-to-die case, as the author notes. Rather, it was about the right to continue living.

To those of us who favored Congressional action on her behalf, we believed that this disabled woman was not receiving the level of constitutional procedural protection that even common criminals receive. In fact, Professor Carter O. Snead (Notre Dame School of Law) has written an important paper (The (Surprising) Truth about Schiavo: A Defeat for the Cause of Autonomy) describing the ways the Florida courts misinterpreted state law in reaching their decisions to end Terris life. I discussed some of this in an article published on the Weekly Standards website one year ago.

The “Disturbing Realities” of Planned Parenthood

by Chris Gacek

March 26, 2008

Today’s Washington Times contains a “must read” op-ed. Professors Gerald R. McDermott (Roanoke College) and Carol M. Swain (Vanderbilt) give a well-developed argument for defunding Planned Parenthood based on “disturbing realities” about the way that organization conducts its business.

Here is their concluding paragraph: “One must wonder, then, whether taxpayers should continue to support an organization that is flush with money, has been willing to skirt or ignore laws intended to protect the people it claims to serve and may be targeting minorities with a practice many Americans believe immoral.”

Also, much praise to the Washington Times editorial page for publishing this excellent piece.

Sec. Leavitt Protects Doctors

by Chris Gacek

March 18, 2008

On Friday, March 14th, Secretary Michael Leavitt (Dep’t of Health & Human Services) issued an important press release announcing his letter to Dr. Norman F. Grant, the Executive Director of the American Board of Obstetrics and Gynecology (ABOG). In his letter, Secretary Leavitt stated his justifiable concern that ABOG’s Bulletin for 2008 Maintenance of Certification could require physicians to refer patients for abortions against the dictates of conscience. Such outcomes might arise from the “interaction” of that ABOG Bulletin and a “report” of the ethics committee of the American College of Obstetricians and Gynecologists (ACOG) (dated Nov. 7, 2007) entitled “The Limits of Conscience Refusal in Reproductive Medicine.

Secretary Leavitt took note of federal laws intended to “protect the rights, including conscience rights, of health care professionals in programs or facilities conducted or supported by federal funds.” He asked ABOG to clarify its position “[i]n the hope that compliance of entities with the obligations that accompany certain federal funds will not be jeopardized….”

As Secretary Leavitt and the public await ABOG’s answer, the Secretary should be commended greatly for his efforts on behalf of those health care professionals who do not wish to refer patients for abortions or act in other ways that would undermine their commitment to the ethical provision of medical services. In case it is not clear, implementation of the projected ABOG-ACOG policy denying licensing or re-licensing to doctors unwilling to refer for abortions could eliminate pro-life obstetricians and gynecologists from the practice of medicine in the United States. This is unacceptable.

More on the California Homeschooling Decision

by Chris Gacek

March 11, 2008

A great deal has happened since my Friday posting on the California home school decision — In re Rachel L. First, Governor Arnold Schwarzenegger issued a press release on Friday striking out at the court decision:

Every California child deserves a quality education and parents should have the right to decide whats best for their children. Parents should not be penalized for acting in the best interests of their childrens education. This outrageous ruling must be overturned by the courts and if the courts dont protect parents rights then, as elected officials, we will.”

This opens the possibility that political action, in addition to legal appeals, may lie ahead. However, proponents of home schooling in California are wary of a legislative option because a new law might codify a set of parent-school relationships that are less friendly than those in place before the court decision. Given the liberal composition of the California legislature, that is a justifiable concern.

Second, the Home School Legal Defense Association (HSLDA) has taken a step to nullify the decision. While the Rachel L. family and its California counsel plan to appeal the decision to the California Supreme Court, HSLDA has also posted a petition online collecting the signatures of those who would like the Court to “depublish” the opinion. HSLDA plans to formally ask the Court to depublish the Rachel L. opinion which would render it unusable “by other California courts” and eliminate the decision as a threat to other homeschoolers. By gathering signatures, HSLDA would like to demonstrate to the Court “that many other people, both in California and across the country, care deeply about homeschool freedom in California.” Depublishing would be a simple way to alleviate this crisis.

Third, Eugene Volokh, a libertarian/conservative UCLA law professor and blogger wrote about the home schooling case on March 6th — as edited by Alliance Defense Fund:

Its pretty well-settled that the parental rights cases — such as Pierce v. Society of Sisters (1925) — dont secure a right to home-school … .

Religious homeschooling is a different matter. Wisconsin v. Yoder held that the Amish could pull children out of school at age 14, and then vocationally train the children at home, notwithstanding a compulsory education law that generally required school attendance until 16. And Yoder survives the Courts decision in Employment Division v. Smith (which mostly holds that the Free Exercise Clause doesnt require religious exemptions from generally applicable laws, but which expressly preserves such claims in parental rights cases like Yoder).

What appears to be the crucial California case, People v. Turner (1953), has some difficult language for the proposition that there is a constitutional right to homeschool:

…, we have been unable to find a single case in which it has been held that so-called compulsory attendance statutes are rendered unconstitutional and void merely by reason of a failure to recognize home instruction as an alternative to attendance in the public schools.

Well, only one thing is certain — we are destined to hear a great deal more about this case and the related legal arguments. A great deal has changed in California since 1953, and the Court would be wise to accommodate the educational arrangements that now exist for something like 200,000 students.

California Decision Highlights Judicial Trend against Parental Rights in Education

by Chris Gacek

March 7, 2008

On February 28, 2006, a three-judge panel of the California Court of Appeal handed down a ruling that may threaten the continued viability of home school arrangements in California. In this case, In re Rachel L., a lower court decision holding that parents have a constitutional right to home school their children was reversed. The appellate court held that parents do not have such rights. Furthermore, the decision appears to have rendered the vast majority of California home schooling arrangements violative of state law.

According to the Los Angeles Times, California law does not address home schooling in its statutes unlike thirty states that do. Apparently, the California Department of Education and local school districts have had a somewhat relaxed approach to home schooling. This has allowed the number of home schoolers to grow considerably. Estimates are that 166,000 children in California are taught at home, so the impact of this decision will be significant.

This case and two others of recent vintage, Fields v. Palmdale School District (U.S. 9th Cir. 2005) and Parker v. Hurley (U.S. 1st Cir. 2008), remind us of the fact that powerful elements within our society believe that parents have few, if any, rights over the educational content of their children. Once the state has spoken parents have to fall in line. In Palmdale, the Ninth Circuit used a dispute over psychological surveys that included questions about sex to assert that parents have no constitutional right … to prevent a public school from providing its students with whatever information it wishes to provide, sexual or otherwise…. (The parents were not told about the sex-related questions when their consent for participation was sought by the school.)

In Parker, a Christian parent objected to his young child being given educational materials promoting homosexual parenting and marriage. Here again, the appellate court affirmed the district courts ruling which stated that the constitutional right of parents to raise their children does not include the right to restrict what a public school may teach their children.

At bottom, the current case in California (Rachel L.), Palmdale, and Parker indicate that parents, pro-family groups, and friendly politicians will have to fight for the right to protect their children. They will need to aggressively pursue legislatively corrections. That may be possible in California regarding the status of home schooling, but it will not always be possible. Barring a legislative fix, it becomes clear how important it is to have judges on the bench who understand that the rights of parents are not derived from the state. Rather, parents have inalienable rights that supersede those of government — particularly when the moral education of their children is at stake.