Ed Brayton is a freelance writer and speaker. He is the co-founder and president of 
Here is a perfect example of the incoherence and inconsistency of the religious right when it comes to constitutional law. A school in Portland, Maine just passed a policy allowing the school nurse to give out birth control without parental permission and the religious right is up in arms about it. The ACLJ is preparing a lawsuit:
Jay Sekulow, chief counsel of the American Center for Law and Justice (ACLJ), says "this is an issue where the rights of parents must be protected."
But what is it we always hear from Sekulow and his compatriots whenever a court protects any individual right not explicitly mentioned in the Constitution? They scream about "unelected judges inventing rights that aren't there." Well guess what? Nowhere in the Constitution is the concept of parental rights found. Go look at the Bill of Rights; it isn't there. Not even a hint of such a concept to be found in any penumbras or emanations (to borrow a phrase).
Now, it's certainly true that the right of a parent to raise their child in the manner they think best lies well within the natural rights philosophy that underlies the Constitution. There's no doubt that the founding fathers would have considered that one of the most fundamental rights imaginable and could hardly have conceived that anyone in the future would question that notion. But that's an idea that is rejected by Sekulow and other social conservatives when it comes to other unenumerated rights.
Their stance on unenumerated rights is completely incoherent. They rant against the very concept when they don't like the right being supported, but they casually accept a wide range of other unenumerated rights - the right to send your kids to private schools, the right to travel within the US, etc - without ever recognizing the dissonance in their position.
Comments
What... you weren't really expecting any consistancy from our good friend Jay, were you?
Posted by: doctorgoo | November 13, 2007 9:21 AM
I am guessing that after they hand out the condoms, there will be emanations within penumbras.
As for Jay, is he really arguing that the kids should be going at it bareback? That appears to be the thrust of it. Because the parents have already had first crack here, and apparently the "True Love Waits" thing didn't take.
Posted by: kehrsam | November 13, 2007 9:38 AM
I'm all for handing out condoms in schools; not so for birth control pills. Not because they encourage immorality, but because oral contraceptives are known to interact with many other drugs. For instance, interactions with antibiotics might decrease contraceptive efficacy. Being on the pill can potentially increase the amount of anti-epileptic medications needed to control seizures. There's probably other examples as well. If the parents don't know the child is on oral contraception, neither will the pediatrician, and the results could be tragic.
I agree that the religious right is not consistent in their reasoning about parental rights. But is this really a surprise?
Posted by: DRK | November 13, 2007 9:50 AM
"As for Jay, is he really arguing that the kids should be going at it bareback?"
Not directly, but that's the usual result. It's certainly no news to anyone here that there's a terrible problem for the religious right between being rigidly anti-abortion and rigidly against anything (contraception, education, etc.) that might actually have the practical effect of reducing the number of abortions. But that would mean compromise, pragmatism, and attention to actual facts, which leads to moral relativism, and is therefore a tool of the devil. Clearly it's much better then to be an unbending ideologue.
Posted by: Moopheus | November 13, 2007 10:11 AM
Yay, national news from my neck of the woods! :)
The funny thing about this particular school is that the children that fill its halls have largely neglegient parents who generally don't give a damn about their children's well being -- they don't take a interest in their actions. And because of that, childhood pregnancy (not even TEENAGE pregnancy) has exploded! The school thought that they had better do something drastic since most of the parents in that part of town were not.
It's not the parents of those children who are fighting this... its the parents of children who go to school on the OTHER side of the city. Parents who are, ironically, likely neglecting their own children to fight this battle.
Personally, I think some of the kids are a little young to be messing aruond with their hormones. I'm all for giving away condoms, emergency contraceptives, etc. This, on the other hand weirds me out a tad. BUT, I am also not in the thick of it. I don't work in the school and I'm not a parent of one of those children.
Posted by: thelemurgod | November 13, 2007 10:18 AM
In words of one syllable, they cheat.
Posted by: Ken Shabby | November 13, 2007 10:39 AM
Basically, what legal pick-and-choosers like these idiots need is a new philosophy...basically and American Theocracy.
If they wish to avoid "activist judges" then they need a ballot petition or new law (depending on the state) that forbids the action they do not like, rather than a judicial order. This may give them a Griswald v. CT problem, but with kids things may be arguably different---arguably, but most pre-18 year olds are not considered minors when it comes to sexual health.
Let's carve out a bit of a state and give it to them for their own little theocracy. Utah's already taken, so how about central Nevada?
Posted by: PalMD | November 13, 2007 11:23 AM
DRK, oral contraceptives can only be obtained through prescription (per FDA regulation). This means a medical physician or nurse practitioner are the only ones able to dispense oral contraceptives. V-Rings and patches also require a prescription due to being considered as hormone therapies.
And depending on the medical privacy laws of the state, the parent doesn't have to be in the room with their teenager and pediatrician, allowing the teen to divulge their use of contraceptives. The teen or the doctor can also ask the parent to leave (because...doctors can tell...they possess such magical powers).
As an aside...
(1) The comments at the OneNewsNow source scare me. I didn't know Sekulow was doing this because Jesus told him to...
(2) I disagree with the notion that parents have enumerated rights. You're setting up a false dichotomy of "parental rights" versus "child rights" when it all boils down to rights of citizens from a governmental viewpoint.
Posted by: Shawn Wilkinson | November 13, 2007 12:29 PM
While I don't know if this is what Sekulow would say, believe it or not, this argument is one which many on the religious right agree with. The founder of the religious "Sliver Ring Thing" abstinence-only program has said as much. He would rather his very own daughter be exposed to the risks and dangers of unprotected sex than advise her to make sure she and her partner use a condom. If pregnancy, illness, or death is the consequence of sexual sin, so be it.
Posted by: tacitus | November 13, 2007 1:00 PM
If only they would stop teaching evilution in the schools, all that sex stuff would immediately stop.
Posted by: mark | November 13, 2007 1:17 PM
Resident of Portland here, and there is a slight inaccuracy in Ed's post that the religious right has blown out of proportion. The birth control is being made available in the DHS operated health clinic at the middle school in question, not the nurses office. The parents of the children need to give written permission for the student to use the health clinics services as well as indicate that they have read the privacy manual informing them of their children's right to patient confidentiality once they give that permission. If they do not give such permission then the kids can still recieve basic care at the nurses office. King is the only middle school in Portland to have an actual health clinic due to many of it's students being on the lower end of the income ladder.
Posted by: Tyler DiPietro | November 13, 2007 7:31 PM
I actually worry about this a bit.
Condoms are one thing, and they should be freely available to everybody who might be having sex, as an effective form of both birth control and STD prevention. The pill only prevents one of these two, and then only if used regularly.
Training young teenagers that the pill is the answer may lead to less pregnancy, but greater incidence of STD's, since condom use will be inadvertently discouraged.
Posted by: theberle | November 16, 2007 12:46 AM