There’s a great article up on the Constitutional Law Prof
Blog that exposes and refutes a cliché talking point often used by the right to attack Roe v. Wade.

It goes like this: If one needs parental consent from a school nurse to get aspirin, and also needs to get parental consent to go on a field trip, why don’t parents have any authority regarding abortions? This appears in nearly every debate on the issue.

Although misleading and wrong, one has to admire the right’s ability to create persuasive (if flawed) argumentative metaphors. This one almost sounds reasonable. Aspirin is such a common, harmless drug, yet still parents must sign permission slips for it. Why then, the metaphor begs us to ask, don’t parents have control over a medical procedure?

Law Prof Blog chimes in:

Legislators on these topics (and parents) may wish to believe that a person’s constitutional rights begin when that person reaches the age of majority.  This is simply not true.  Minors have a First Amendment right to engage in free speech.  Minors have a Fourth Amendment right to be free of unreasonable searches on school grounds.  The Supreme Court decided that since minors do possess Constitutional rights in these areas, it would be unfair and inconsistent to hold that minors do not have a right to privacy under the due process clause of the Fourteenth Amendment.  Thus, the Supreme Court is merely being consistent in holding that minors possess the same constitutional freedoms as adults.

 

But beyond the legal logic, the metaphor is wrong. First, a permission slip for a field trip has nothing to do with a medical procedure. The permission slip is designed to keep the school from being held liable if a child gets hurt on the field trip. The line about aspirin is also false, for similar reasons. The need for a permission slip to take an aspirin isn’t necessarily because the decision is too difficult for a minor to make. The school is only worried about liability. Also, many states allow minors to consent to medical procedures – in some states, this even includes surgical care.

Sometimes the talking points are too easy to refute.