441 F.Supp. 1247 (W.D.Mich. 1977), Civ. A. G75-142, Doe v. Irwin

Docket NºCiv. A. G75-142
Citation441 F.Supp. 1247
Party NameDoe v. Irwin
Case DateNovember 23, 1977
CourtUnited States District Courts, 6th Circuit, Western District of Michigan

Page 1247

441 F.Supp. 1247 (W.D.Mich. 1977)

John DOE, Jane Doe, Thomas M. Grost, and Cora W. Grost, Individually and on behalf of all others similarly situated, Plaintiffs,


Cathy E. IRWIN, Administrator, and George Gross, D. O., Medical Director, Tri-County Family Planning Center, Elinor Holbrook, Gilda Richardson, Marie Vande Bunte, Mary Kay Wickens and David Holden, M. D., Members of the Ingham County Board of Health, Mary Woods, R. N., Acting Director, Ingham County Health Department, and their successors in office, Defendants.

Civ. A. No. G75-142.

United States District Court, W.D. Michigan, Southern Division.

Nov. 23, 1977.

Page 1248

Hubbell, Blakeslee, McCormick & Houlihan, Traverse City, Mich., for plaintiffs; Stuart D. Hubbell, Traverse City, Mich., of counsel.

Peter A. Cohl and Larry A. Salstrom, Ingham County Corp. Counsel, Lansing, Mich., for defendants.


FOX, Chief Judge.

This matter is again before the court upon the remand of a panel of the Sixth Circuit Court of Appeals for reconsideration in light of Carey v. Population Services International, 431 U.S. 678, 97 S.Ct. 2010, 52 L.Ed.2d 675 (1977). My examination of the plurality, concurring, and dissenting opinions in Carey convinces me that my opinion and order in this matter of March 7, 1977 were properly issued. That opinion found defendants' practice of distributing "prescriptive contraceptives and contraceptive devices to minor, unemancipated children in the absence of notice to, and the opportunity of consultation with, their parents" violated the constitutional rights of such parents. Therefore I readopt the opinion and order previously entered by this court as part of the present opinion. This opinion upon remand, in addition to explaining why Carey supports the previous opinion of this court, also provides an opportunity to explore in greater depth the rights plaintiffs assert here. This latter area will be discussed first.

Defendants re-argue that no rights of the plaintiff parents, if any exist in the present context, are invaded by the actions of the defendants. Defendants contend, first, that the fact that the clinic operates in a totally voluntary manner renders it impossible for the clinic to violate the rights of the parents to the free exercise of religion under the First Amendment. That is, they continue, the county requires no child to come to the clinic; no parent is prohibited, restricted, or restrained in the exercise of their religious beliefs; and no parents are prevented from inculcating their religious beliefs upon their children. Defendants cite this court to cases holding that the Free Exercise rights of plaintiffs who oppose pre-marital intercourse on religious grounds are not violated by the use of their tax dollars for birth control clinics, Civic Awareness of America, Ltd. v. Richardson, 343 F.Supp. 1358 (E.D.Wis.1972), and holding that the right of parents to teach their children about sexual matters in their own homes was not violated by the teaching of birth control in public schools, Cornwell v. State Board of Education, 314 F.Supp. 340 (D.Md.1969), affirmed, 428 F.2d 471 (4th Cir. 1970), cert. denied, 400 U.S. 942, 91 S.Ct. 240, 27 L.Ed.2d 246.

Defendants next argue that the Establishment Clause is not violated as the practices engaged in by the defendants do not favor a specific religion or belief. It is also claimed that the distribution of contraceptives to children has a secular purpose which neither advances nor inhibits any religion and is, therefore, not constitutionally impermissible. For this contention, defendants rely upon McGowan v. Maryland, 366 U.S. 420, 465-66, 81 S.Ct. 1101, 6 L.Ed.2d 393 (1961), and Civic Awareness, supra at 1361.

The facts present here are not identical to the fact situations involved in the cases cited by defendants. Contrary to defendants' arguments, there are fundamental differences involved in the present case. I have recognized from the first that this case comes before me in a posture unlike the typical case involving a minor's access to abortions or contraceptives. The plaintiffs are not minors, who in seeking to obtain contraceptives challenge a state statute affirming parental authority. Rather, plaintiffs are parents who seek to preserve their parental and familial rights against action by a state agency. To prevail, plaintiffs must establish such parental and familial rights. They must then show that these rights are invaded by state action. If these first two conditions are met, the rights of the plaintiffs must then be weighed against any rights asserted by their children and against the interests asserted by the State.

Page 1249

The rights of parents to the custody, care, and religious and moral education of their children is firmly established in the tradition and laws of this nation. The rights of parents and the family were extensively described in my initial opinion. These rights were concisely detailed by the Supreme Court as follows:

"(C)onstitutional interpretation has consistently recognized that the parents' claim to authority in their own household to direct the rearing of their children is basic to the structure of society. 'It is cardinal with us that the custody, care and nurture of the child reside first in the parents, whose primary function and freedom include preparation for obligations the state can neither supply nor hinder.' " (Emphasis added.) Ginsberg v. New York, 390 U.S. 629, 639, 88 S.Ct. 1274, 1280, 20 L.Ed.2d 195 (1968), quoting Prince v. Massachusetts, 321 U.S. 158, 166, 64 S.Ct. 438, 88 L.Ed.2d 645 (1944).

Parental authority is plenary. It prevails over the claims of the state, other outsiders, and the children themselves. There must be some compelling justification for interference.

As one writer has stated:

"The common law has long recognized parental rights as a key concept, not only for the specific purposes of domestic relations law, but as a fundamental cultural assumption about the family as a basic social, economic, and political unit. For this reason, both English and American judges view the origins of parental rights as being even more fundamental than property rights. Parental rights to custody and control of minor children have been variously described as 'sacred' as a matter of 'natural law,' and as 'inherent, natural right(s), for the protection of which, just as much as for the protection of the rights of the individual to life, liberty, and the pursuit of happiness, our government is formed.' These judicial word choices imply that the parent-child relationship antedates the state in much the same sense as natural individual rights are thought to antedate the state in American political philosophy. It has been said:

Our political system is superimposed on and presupposes a social system of family units, not just of isolated individuals. No assumption more deeply underlies our society than the assumption that it is the individual (parent) who decides whether to raise a family, with whom to raise a family, and, in broad measure, what values and beliefs to inculcate in the children who will later exercise rights and responsibilities of citizens and heads of families. . . .

. . . (T)he family unit does not simply co-exist with our constitutional system; it is an integral part of it. In democratic theory as well as in practice, it is in the family that children are expected to learn the values and beliefs that democratic institutions later draw on to determine group directions. The immensely important power of deciding about matters of early socialization has been allocated to the family, not to the government. " 1 (Emphasis added.)

In Meyer v. Nebraska, 262 U.S. 390, 43 S.Ct. 625, 67 L.Ed. 1042 (1923), the Court invalidated, under the due process clause of the Fourteenth Amendment, a state statute prohibiting foreign language instruction to school children. Meyer recognized the right of German-speaking parents to have their children taught German. In the course of the opinion, the Court referred expressly to the social structure discussed in Plato's Republic, in which family life was to be replaced entirely by state child-rearing activities so pervasive that "no parent is to know his own child, nor any child his parent." 2 The Court continued:

Page 1250

"Although such measures have been deliberately approved by men of great genius, their ideas touching the relation between individual and State were wholly different from those upon which our institutions rest; and it hardly will be affirmed that any legislature could impose such restrictions upon the people of a State without doing violence to both letter and spirit of the Constitution." 3

Strong statements about independent parental interests were also made in Stanley v. Illinois, 405 U.S. 645, 92 S.Ct. 1208, 31 L.Ed.2d 551 (1972). Stanley held that a state statute providing that illegitimate children, upon the death of their mother, became wards of the state without a hearing on the parental fitness of the father, was constitutionally repugnant. The Court held that the father was entitled to such a hearing under the Fourteenth Amendment, stating:

"The private interest here, that of a man in the children he has sired and raised, undeniably warrants deference and, absent a powerful countervailing interest, protection. It is plain that the interest of a parent in the companionship, care, custody, and management of his or her children 'come(s) to this Court with a momentum for respect lacking when appeal is made to liberties which derive merely from shifting economic arrangements.' " 4

The derivation of these parental and familial rights was closely examined in the concurring opinion of Justice Goldberg in Griswold v. Connecticut, 381 U.S. 479, 85 S.Ct. 1678, 14 L.Ed.2d 510 (1965), a...

To continue reading

Request your trial