On the final business day of 2010, the Iowa Supreme Court released its unanimous ruling in Ashenfelter v. Mulligan (2010) in which it held that the Constitution guaranteed parental rights, despite the fact that no such right exists in the text or original public understanding of either the U.S. or Iowa Constitutions.
Amy Mulligan, the daughter of Jerry and Susan Ashenfelter, separated from her husband in December of 2007 and decided that it was not in her son’s best interest to see his grandparents (her parents), the Ashenfelters. The Ashenfelters in turn filed a petition seeking grandparent visitation under the Iowa Code.
In prosecuting their suit, the Ashenfelters sought to obtain Amy’s medical and mental health records in order to prove that she was an unfit parent incapable of adequately deciding who should have visitation with her child. Unsurprisingly, Amy asked the trial court to shield her records from discovery by the Ashenfelters.
The trial court ruled in favor of the Ashenfelters, but on appeal the Supreme Court reversed, holding that the records are privileged under Iowa Code section 622.10 and therefore undiscoverable in a lawsuit. Reasonable minds may disagree, as the trial court did, but at least the Court did not engage in the creation of new rights.
That is, until it proceeded to also conclude that such records were protected by Amy’s constitutional right to privacy. There was no need for the Court to consider the constitutional issues as it had already ruled in Amy’s favor based on Iowa statute, but apparently the temptation to rewrite the Constitution at every opportunity is too great to resist.
Without discussing how it found this constitutional right to privacy, it merely cited a 1993 decision in which it had held that: “[T]he majority of [courts] hold that the right of privacy should extend to the patient records of mental health professionals…We join those courts that extend constitutional protection to such records.”
While no one disputes the notion that one has a privacy interest in his or her medical records that should be protected by statute, it simply is not an enumerated right protected by either the federal or state constitutions. Rights created by judicial fiat with no basis in the original public understanding of the Constitution can be extended, restricted, and manipulated as the courts see fit.
Unfortunately, the Court didn’t stop with reading into the Constitution a right of privacy that does not exist, but it also held that: “Amy’s parental interests in the care, custody and control of [her son] is a fundamental liberty interest protected by the United States and Iowa Constitutions.”
Again, no one disputes that parents have an indisputable right to raise their children as they see fit, but it does not exist in the text or original public understanding of either the U.S. or Iowa Constitutions. As Justice Scalia noted in his dissent in Troxel v. Granville (2000):
In my view, a right of parents to direct the upbringing of their children is among the “unalienable Rights” with which the Declaration of Independence proclaims “all Men … are endowed by their Creator.” And in my view that right is also among the “othe[r] [rights] retained by the people” which the Ninth Amendment says the Constitution’s enumeration of rights “shall not be construed to deny or disparage.” The Declaration of Independence, however, is not a legal prescription conferring powers upon the courts; and the Constitution’s refusal to “deny or disparage” other rights is far removed from affirming any one of them, and even farther removed from authorizing judges to identify what they might be, and to enforce the judges’ list against laws duly enacted by the people. Consequently, while I would think it entirely compatible with the commitment to representative democracy set forth in the founding documents to argue, in legislative chambers or in electoral campaigns, that the state has no power to interfere with parents’ authority over the rearing of their children, I do not believe that the power which the Constitution confers upon me as a judge entitles me to deny legal effect to laws that (in my view) infringe upon what is (in my view) that unenumerated right…
Judicial vindication of “parental rights” under a Constitution that does not even mention them requires (as Justice Kennedy’s opinion rightly points out) not only a judicially crafted definition of parents, but also–unless, as no one believes, the parental rights are to be absolute–judicially approved assessments of “harm to the child” and judicially defined gradations of other persons (grandparents, extended family, adoptive family in an adoption later found to be invalid, long-term guardians, etc.) who may have some claim against the wishes of the parents. If we embrace this unenumerated right, I think it obvious–whether we affirm or reverse the judgment here, or remand as Justice Stevens or Justice Kennedy would do–that we will be ushering in a new regime of judicially prescribed, and federally prescribed, family law. I have no reason to believe that federal judges will be better at this than state legislatures; and state legislatures have the great advantages of doing harm in a more circumscribed area, of being able to correct their mistakes in a flash, and of being removable by the people.
While the Iowa Supreme Court’s decision legalizing same-sex marriage in Varnum v. Brien (2009) is certainly its most notorious example of judicial activism, the Court’s continuing post-election performance has shown that it will continue to engage in this kind of behavior unless judicial reform is established that exposes and prevents activists from assuming the bench in the first place.
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