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This week Having Kids urged officials in Florida to consider a Fair Start order in the event of a conviction of a couple charged with child abuse. Part of the media coverage of Having Kids’ letter included a response by a Florida-based civil rights attorney, Andrea Flynn Mogensen, who expressed concern that a Fair Start order would infringe upon an individual’s constitutional rights, including one’s fundamental right to privacy.

Having Kids agrees that preservation of fundamental rights is important, but all courts recognize that these rights are not unlimited. Specifically, when an individual is convicted of felony offenses, our legal system is rife with examples of limiting constitutional rights – convicted felons lose their right to possess weapons, for example, associate with other convicted felons, and even to vote for certain lengths of time. In fact, Florida is one of only two states in the country that imposes a lifelong denial of the right to vote to all citizens with a felony record.  

If the legal system is able to put restrictions on certain fundamental rights for convicted felons, the government has the authority to impose narrowly tailored restrictions on the right to have children for those convicted of child abuse or neglect, for the rehabilitation of the parents, and for limited periods of time. Each person’s liberty is restricted by the liberties of others, and when it comes to parenting in the context of a child abuse conviction, we must protect the rights of future children.It’s the most compelling state interest of all – the most important collective concern, because it determines the future.

To address additional points raised by Ms. Mogensen:

  • The United States is not the only country with constitutional liberties. But if we want our system of human rights to be the best in the world, we should understand that the right to have children is nuanced and not reducible to the nonsense of “it’s nobody else’s business.” 
  • The right to have kids is not unlimited; several high courts have upheld fair start-type probation orders. Ms. Mogensen’s statement that courts are limited to policing pregnant mothers is incorrect.  
  • The orders would ideally be authorized by state legislation. If Florida legislators want to protect kids and prevent their abuse, they will sponsor and pass such legislation, permitting judges the legal authority to make such orders in narrow circumstances, where appropriate. 
  • There is no legal or moral rationale for ensuring that abusive and/or neglectful parents have more kids while they are being rehabilitated. Doing so puts children into unfit surroundings (either the troubled home or failing child protection systems) and thereby harms them.  

The bottom line is that we, as a society, show ourselves willing to tolerate child abuse and neglect until we embrace limitations like Fair Star orders. Are we really willing to make a policy decision that harms parents, kids, and the community, when we can’t even articulate a concrete reason for doing so? Think about it. Having Kids stands for reason, and for child-first family planning. Join us!

Take action now to prevent, and not just react to, child abuse and neglect.

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