Academic journal article Harvard Journal of Law & Public Policy

Defending America's Children: How the Current System Gets It Wrong

Academic journal article Harvard Journal of Law & Public Policy

Defending America's Children: How the Current System Gets It Wrong

Article excerpt


The United States prides herself on recognizing the individual rights of every citizen. Americans are shocked by the treatment of women in Afghanistan, Saudi Arabia, and other foreign countries; they are embarrassed by their nation's own history of slavery and female disenfranchisement. Americans consider themselves superior in this respect; they have risen above these injustices and now inhabit a modern society that should be the envy of and blueprint for the rest of the world.

Despite these advances, the United States is not doing a very good job protecting the rights to life, liberty, and the pursuit of happiness of this nation's children, who lack the capacity to defend their rights on their own. (1) Every day, thousands of children are beaten, starved, abandoned, and sexually abused. Courts and social services try to step in when they can, and when society hears of the most horrific cases, individuals are quick to express their outrage and anger. Nevertheless, the same situations are perpetrated again and again. In a nation that seems so dedicated to honoring the individual rights of each and every human being, why do so many adults feel entitled to treat children this way?

This Note will explore the connection between the mistreatment of children and the dehumanization of unborn children, (2) and will argue that both wrongs stem from the misguided premise that human lives only deserve constitutional rights once a set level of development is reached. True recognition of the civil rights of children will not meaningfully progress until America learns to value children at all stages of development. Part II of this Note will explore how the Supreme Court's abortion cases have denied the personhood of unborn children, therefore failing to give the developing life any individual consideration separate from the governmental interests involved. Part III will examine cases in which courts have undervalued children by focusing on state and parental rights, rather than the individual child's interests. This section will also outline two of the most serious ways in which such a scheme has negatively affected our children: child abuse and infanticide. Part IV will discuss the connection between the lack of personhood afforded unborn children and the dearth of judicial consideration of individual children's rights. Finally, Part V will offer an alternative framework, one that explicitly recognizes the innate right of all individuals to have their existence recognized and honored by the government and courts. Although this new framework might not change the outcome of many children'srights or abortion cases, by giving explicit acknowledgment to the individual rights of every human life and considering these rights in the balancing process, courts will reaffirm the honor and dignity of every individual, a change that would benefit not only children, but everyone in society.


A. Child or Choice?

The Supreme Court's abortion decisions, even though impacting the lives, or potential lives, (3) of unborn children, cast the central issue as the woman's right to choose whether to bear a child versus the state's right to protect potential life. (4) The unborn child's right to maintain his life does not enter the equation because the developing entity, as the Roe v. Wade Court asserted, is simply not a person within the meaning of the Constitution, (5) The Roe Court sidestepped the difficult matter of considering the humanity of that subpopulation's constituent members, instead reducing the question to one of state power.

After arriving at the biologically anomalous determination that an unborn baby is not a person, (6) the Court determined exactly when the unborn should be worthy of protection, setting deadlines and drawing boundaries between when life should be protected and when it should be disposable by the person the Roe Court referred to as the mother. …

Search by... Author
Show... All Results Primary Sources Peer-reviewed


An unknown error has occurred. Please click the button below to reload the page. If the problem persists, please try again in a little while.