Limits on reproduction

Douglas Laycock DLaycock at law.utexas.edu
Wed Oct 5 08:48:05 PDT 2005


 Bobby Lipkin writes:
 
         Still, I'm curious. The Constitution does not say "No state
shall enact any law restricting a woman's right to [bear children]."
Does that mean that in the appropriate emergency circumstances, the
state could constitutionally tax or fine woman (couples) for bearing or
adopting more than three children, say? 
 
    Why would it require emergency circumstances?  If there is no
constitutional right, it requires only a political judgment.  If there
are no unenumerated rights -- if no enforceable rights are created by
the Ninth Amendment or the Privileges or Immunities Clause -- and if the
lack of a fact-specific textual provision is thus determinative, then
there would seem to be no constitutional obstacle to enacting China's
one-child policy here.  Or closer to political reality, a policy
prohibiting reproduction by persons not financially able to support the
resulting children, and providing that any child dependent on government
financial support would be taken away from the parents and made
available for adoption by a more affluent couple.  Compare Zablocki v.
Redhail, 434 U.S. 374 (1978), and Oakley v. State, 635 N.W.2d 760 (Wis.
2001), both involving efforts to limit reproduction by persons with
unpaid child support.
 
    I think the argument is not about whether there are any unenumerated
rights, but over the content of unenumerated rights.  And if a nominee
had no record on that question, and refused to answer that question, but
had a strong and publicly declared affiliation with a religious group
that did have a record on that question, it is hard to imagine Senators
not drawing inferences about legal views from the religious affiliation.
    
Douglas Laycock
University of Texas Law School
727 E. Dean Keeton St.
Austin, TX  78705
   512-232-1341 (phone)
   512-471-6988 (fax)
 
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