HHooffssttrraa LLaaww RReevviieeww Volume 30 Issue 3 Article 1 2002 MMiinnoorr RRiigghhttss:: TThhee AAddoolleesscceenntt AAbboorrttiioonn CCaasseess Martin Guggenheim Follow this and additional works at: https://scholarlycommons.law.hofstra.edu/hlr Part of the Law Commons RReeccoommmmeennddeedd CCiittaattiioonn Guggenheim, Martin (2002) "Minor Rights: The Adolescent Abortion Cases," Hofstra Law Review: Vol. 30 : Iss. 3 , Article 1. Available at: https://scholarlycommons.law.hofstra.edu/hlr/vol30/iss3/1 This document is brought to you for free and open access by Scholarly Commons at Hofstra Law. It has been accepted for inclusion in Hofstra Law Review by an authorized administrator of Scholarly Commons at Hofstra Law. For more information, please contact [email protected]. Guggenheim: Minor Rights: The Adolescent Abortion Cases HOFSTBA JAW REVIEW Volume 30, No. 3 Spring 2002 MNOR RIGHTS: THE ADOLESCENT ABORTION CASES Martin Guggenheim* I. INTRODUCTION There is an old saw that "[Econstitutional rights do not mature and come into being magically only when one attains the state-defined age of majority."' Nonetheless, there was a time before the Supreme Court ever referred to children as having constitutional rights.2 This Article will focus on two Supreme Court decisions issued during a very limited time span (1976-79), in which the Court redefined the entire conception of children's rights. What the Article will suggest is that the rule that emerged had a lot less to do with magic than with sleight-of-hand. Through an astonishing transformation, the Supreme Court used a construct of children's constitutional "rights" to restrict the rights of children. By doing so, the Court decisively derailed an incipient children's rights movement that had the potential to liberate children from the dominion of adults. *© Martin Guggenheim; Professor of Clinical Law; Director, Clinical and Advocacy Programs, New York University School of Law. The Article was originally presented as the Sidney and Walter Siben Distinguished Professorship Lecture at Hofstra University School of Law on October 24, 2001. I want to thank Annette Appell and Randy Hertz who read an earlier draft of this Article and provided me with invaluable comments and Merry Jean Chan, N.Y.U. Class of 2003 for her excellent research assistance. I am also grateful for financial support from the Filomen D'Agostino and Max E. Greenberg Research Fund at New York University School of Law. 1. Planned Parenthood v. Danforth, 428 U.S. 52,74 (1976). 2. See Laurence D. Houlgate, Three Concepts of Children's Constitutional Rights: Reflections on the Enjoyment Theory, 2 U. PA. J. CONST. L. 77, 77 (1999). Published by Scholarly Commons at Hofstra Law, 2002 1 Hofstra Law Review, Vol. 30, Iss. 3 [2002], Art. 1 HOFSTRA LA W REVIEW [Vol. 30:589 The two decisions that will be the central focus of analysis here are Planned Parenthoodv . Danforth and Bellotti v. Baird. Int hese cases, the Court first wrote and then rewrote the rules governing a minor's right to terminate a pregnancy. In the aggregate, the Supreme Court has addressed the subject of a pregnant minor's rights a total of ten times since 1973 (the first time the Court held that a woman's constitutional right of privacy encompasses a right to terminate a pregnancy).5 In Danforth, the Court considered for the first time the constitutionality of a state statute that contained a mandatory parental consent provision.6 The Court struck down that part of the statute that prohibited unmarried minors from procuring abortions during the first trimester of their pregnancies without a parent's consent.7 Magisterially declaring that "[m]inors, as well as adults, are protected by the Constitution and 3. 428 U.S. 52 (1976). 4. 443 U.S. 622 (1979). 5. Since the Court decided Roe v. Wade, 410 U.S. 113 (1973), it has also decided the following cases: Lambert v. Wicklund, 520 U.S. 292, 293 (1997) (per curiam) (upholding constitutionality of statute that required one-parent notification but allowed for judicial bypass when judge finds that notice would not serve child's best interests); Planned Parenthood v. Casey, 505 U.S. 833, 899 (1992) (joint opinion of O'Connor, Kennedy & Souter, JJ.) (upholding a statute requiring one parent's consent for unwed minor's abortion because of its bypass option permitting the minor to seek judicial consent based on a finding that the minor is mature or that abortion is in her best interests); Ohio v. Akron Ctr. for Reprod. Health, 497 U.S. 502, 508, 519-20 (1990) (deciding that there is no undue burden in requiring judicial bypass whereby the minor either could show maturity, that she is a victim of abuse, or that notice is not in her best interests); Hodgson v. Minnesota, 497 U.S. 417, 455 (1990) (holding that a two-parent notification requirement is constitutional as long as the minor has an option to seek judicial review); Planned Parenthood v. Ashcroft, 462 U.S. 476, 493 (1983) (upholding parental and judicial consent scheme which permitted unwed minors to obtain an abortion when judge determined that the minor was mature or that the abortion was in her best interests); City of Akron v. Akron Ctr. for Reprod. Health, Inc., 462 U.S. 416, 440 (1983) (holding that a parental and judicial consent scheme for unwed minors which contained a blanket determination that all minors under the age of fifteen were too immature to make a decision and that abortion could never be in minor's best interests in the absence of parental consent is unconstitutional), overruled in part by Planned Parenthood v. Casey, 505 U.S. 833 (1992) joint opinion of O'Connor, Kennedy & Souter, JJ.); H.L. v. Matheson, 450 U.S. 398, 413 (1981) (holding that a statute requiring a physician to notify the parent "if possible" of an unemancipated, immature minor when performing an abortion is facially constitutional); Bellotti, 443 U.S. at 647, 650 (plurality opinion) (holding that even when judicial bypass is available, a state law requiring parental notification in all cases is unconstitutional); Bellotti v. Baird, 428 U.S. 132, 146-47, 151 (1976) (abstaining from deciding the constitutionality of a statute restricting an unwed minor's abortion and certifying questions to state supreme court to obtain authoritative construction of law); Danforth, 428 U.S. at 74 (holding that a state statute prohibiting unmarried minors from procuring abortions during the first trimester of their pregnancies without a parent's consent is unconstitutional). 6. See Bellotti, 443 U.S. at 624 (plurality opinion) (noting that inquiry into this issue began in Danforth); Danforth, 428 U.S. at 72-75 (discussing parental consent requirement). 7. See Danforth, 428 U.S. at 75. https://scholarlycommons.law.hofstra.edu/hlr/vol30/iss3/1 2 Guggenheim: Minor Rights: The Adolescent Abortion Cases 2002] THE ADOLESCENTABORTION CASES possess constitutional rights,"' five members of the Court concluded that a state could not subject a minor's choice to terminate her pregnancy to a parent's absolute veto "without a sufficient justification for the restriction."9 Even though Danforth has never been overruled, I intend to demonstrate that current law does not afford minors a constitutional right to terminate a pregnancy.' Ever since Danforth, commentators have attempted to develop a coherent theory of the constitutional rights of children by treating the adolescent abortion cases as if they advanced children's constitutional rights." For the most part, these commentators have failed. But the failure did not stem from any deficit in reasoning. Rather, the fault lay with the underlying premise: that those cases do advance children's constitutional rights.2 It is my contention that the abortion cases are not really about constitutional rights of children in the first place. Much flows from this. If correct, this would require a substantial reappraisal of the broader tapestry of constitutional rights of children. The larger network of doctrine and constitutional theory lacks a consistency which in no small part is the consequence of classifying the abortion cases within the subject of constitutional rights.3 Ultimately, we will be able to identify a more coherent theory of children's rights if we are able to categorize the abortion cases correctly. How does one go about demonstrating that an entire line of Supreme Court decisions is not really about the constitutional rights of the claimants despite the Court's explicit statements to the contrary? Part II will discuss Supreme Court decisions that establish the parameters of constitutional rights of children through the time that Danforth was decided. This review lays the foundation necessary to evaluate and situate the Danforth holding within this larger framework. Part III will 8. Id. at 74. 9. Id. at 75. 10. This is not an argument about whether minors should have such a right. The argument simply develops from the holdings of the Supreme Court on the subject of the constitutional rights of minors. 11. See, e.g., Homer H. Clark, Jr., Children and the Constitution, 1992 U. ILL. L. REV. 1, 40; Janet L. Dolgin, The Fate of Childhood: Legal Models of Children and the Parent-Child Relationship, 61 ALB. L. REV. 345, 397 (1997); John H. Garvey, Freedom and Choice in ConstitutionalL aw, 94 HARV. L. REV. 1756, 1763-64 (1981); Houlgate, supra note 2, at 84; Robert B. Keiter, Privacy, Children, and Their Parents:R eflections On and Beyond the Supreme Court's Approach, 66 MINN. L. REV. 459, 503 (1982); Elizabeth S. Scott, The Legal Construction of Adolescence, 29 HOFSTRA L. REV. 547, 571-72 (2000); Lee E. Teitelbaum, Children'sR ights and the Problem of Equal Respect, 27 HOFSTRA L. REV. 799, 809 (1999). 12. See Houlgate, supra note 2, at 84-85. 13. See Dolgin, supran ote 11, at 412. Published by Scholarly Commons at Hofstra Law, 2002 3 Hofstra Law Review, Vol. 30, Iss. 3 [2002], Art. 1 HOFSTRA LAW REVIEW [Vol. 30:589 discuss and analyze the majority and dissenting opinions in Danforth. This Part will focus in particular on the views of the Supreme Court Justice who played the greatest role in shaping and defining the rights of pregnant minors: Justice Lewis A. Powell, Jr. This Part will then discuss and analyze the 1979 decision in Bellotti v. Baird and will show that Bellotti radically altered the meaning and significance of Danforth and effectively eviscerated whatever constitutional rights of privacy the earlier decision may have created. Part IV will discuss the implications of the minor abortion cases. First, it will demonstrate who really were the winners and losers in these cases. Next, this Part will take a careful look at the "rights" that pregnant minors actually possess under the holding in Bellotti. Finally, this Part will examine whether, and to what extent, the pregnant minor cases establish a precedent for children's constitutional rights in other areas of the law. Part V will offer an explanation for the minor abortion cases, suggesting that they are best understood as a conservative Court's efforts to create rules that allow pregnant minors to obtain abortions while ensuring that those rules will not be used to advance children's claims for greater constitutional rights in other areas of the law. II. THE CONSTITUTIONAL RIGHTS OF CHILDREN GENERALLY: THE YEARS LEADING UP TO PLANNED PARENTHOOD V. DANFORTH Supreme Court decisions on the constitutional rights of children come in a variety of forms. For sake of ease, through the mid-1970s when the adolescent abortion cases were first decided, we may divide the constitutional cases concerning children into three categories. The first involves conflicts between parents and the state. The second involves conflicts between children and the state. The third set, of which the abortion cases are paradigmatic, involves a clash between parents and children. A. Clashes Between Parentsa nd the State Whether and to what extent these cases may even qualify as "children's rights" cases is beyond the focus of this Article. Whatever characterization these cases ultimately yield, however, it is impossible to discuss children's rights in the United States without considering these cases. This is because one cannot discuss constitutional rights of children without recognizing that children must be discussed in relational terms. Children go with adult caregivers (which, for these purposes, we will call "parents") almost by definition. Certainly, infants https://scholarlycommons.law.hofstra.edu/hlr/vol30/iss3/1 4 Guggenheim: Minor Rights: The Adolescent Abortion Cases 2002] THE ADOLESCENTABORTION CASES are inherently dependent.'4 Indeed, this is the starting point of all analyses of Joseph Goldstein, Anna Freud and Albert Solnit: [T]o be a child is to be at risk, dependent, and without capacity or authority to decide free of parental control what is "best" for oneself. To be an adult is in law to be perceived as free to take risks, with the independent capacity and authority to decide what is "best" for oneself without regard to parental wishes. To be an adult who is a parent is therefore to be presumed by law to have the capacity, authority, and responsibility to determine and to do what is "good" for one's children, what is "best" for the entire family. 5 At their deepest level, the cases in this category raise the most basic questions about the relationship of citizen and state because they necessarily involve some inquiry into "whose" child is being fought over when parents and the state clash. They unavoidably include an inquiry into whether children are in the first instance viewed as citizens entitled to protection by the state or as part of their parents' family to be raised by them beyond the reaches of the state.'6 Cases in this category have 14. See JOSEPH GOLDSTEIN Er AL., BEFORE THE BEST INTERESTS OF THE CHILD 7 (1979); see also Martha Minow, Rightsf or the Next Generation:A FeministA pproach to Children'sR ights, 9 HARV. WOMEN's L.J. 1, 18 (1986). 15. GOLDSTEIN Er AL., supra note 14, at 7. 16. A wide range of explanations have been offered for the primacy of parental control in child rearing. These include the claim that basic to an adult's autonomy and freedom to procreate is the right to raise children as parents see fit. See, e.g., Peggy Cooper Davis, Contested Images of Family Values: The Role of the State, 107 HARv. L. REv. 1348, 1371-73 (1994); David A.J. Richards, The Individual, the Family, and the Constitution: A Jurisprudential Perspective, 55 N.Y.U. L. REv. 1, 6-20, 28 (1980) (noting that child rearing "is one of the ways in which many people fulfill and express their deepest values about how life is to be lived. To this extent, one's children are the test of one's life and aspirations."); see also PEGGY COOPER DAVIS, NEGLECTED STORIES: THE CONSTrrtITrON AND FAMILY VALUES 168, 226-49 (1997) (parental rights are "an aspect of human self-definition and moral choice" and the Fourteenth Amendment's Due Process Clause was explicitly intended to protect Americans' right to have, keep, and raise children free from state involvement as a direct reaction to these basic liberties of which slaves were deprived). Others see parental rights in political terms through which the family serves a public function of producing citizens with diverse values shaped by what their parents want rather than a more narrow, homogeneous vision of the state's. See, e.g., William A. Galston, Expressive Liberty, Moral Pluralism,P olitical Pluralism: Three Sources of Liberal Theory, 40 WM. & MARY L. REv. 869, 901 (1999). Still others regard parental rights as akin to a trust given to them by the state with residual powers vested in the state to intervene when parents breach their duties to children. See, e.g., Elizabeth S. Scott & Robert E. Scott, Parents as Fiduciaries,8 1 VA. L. REv. 2401, 2401 (1995). They also include the claim that a parent's right to raise children stems from outdated property rights which men once enjoyed under American law over wives and children. See Barbara Bennett Woodhouse, Who Ovns the Child? Meyer and Pierce and the Child as Property,3 3 WM. & MARY L. REv. 995, 1042 (1992). For a particularly thoughtful summary of these various views, and others, see Annette Appell, Virtual Mothers and the Meaning of Parenthood,3 4 U. MICH. J.L. REFORM (forthcoming 2001) (manuscript at 27-37, on file with Author). Published by Scholarly Commons at Hofstra Law, 2002 5 Hofstra Law Review, Vol. 30, Iss. 3 [2002], Art. 1 HOFSTRA LAW REVIEW [Vol. 30:589 involved fights over who decides the shape of a child's education,'7 religion,'8 custody (including foster care and termination of parental rights),'9 and a myriad of other child rearing choices. The constitutional parental right to control the details of a child's upbringing has been recognized by the Supreme Court throughout the twentieth century as part of the substantive due process rights of Americans.2' It is a fundamental tenet of American constitutional law that parents enjoy the right to control the details of their children's upbringing,22 and that families enjoy a right to familial privacy ' and liberty.24 In the words of the Supreme Court, "[t]he history and culture of Western civilization reflect a strong tradition of parental concern for the nurture and upbringing of their children. This primary role of the parents in the upbringing of their children is now established beyond debate as an enduring American tradition."5 Although the Constitution does not expressly confer upon parents the right to rear their children without undue interference by the state, rights of this nature have been found implicit in a number of constitutional guarantees. The Court has located the freedom of parents and families against unnecessary state intrusion as within the Constitution's protections of privacy,26 liberty,27 and personal integrity.28 17. See, e.g., Yoder, 406 U.S. at 205, 234 (holding that a compulsory-attendance law is unconstitutional when applied to Amish families); Pierce v. Soc'y of Sisters, 268 U.S. 510, 534 (1925) (holding that parents cannot be required to send their child to public school); Meyer v. Nebraska, 262 U.S. 390, 403 (1923) (holding that a statute prohibiting the teaching of a foreign language to children who had yet to reach the eighth grade is unconstitutional). 18. See, e.g., Yoder, 406 U.S. at 208-09; Prince v. Massachusetts, 321 U.S. 158, 170 (1944) (sustaining application of child labor laws to a child exercising her religious convictions). 19. See, e.g., Smith v. Org. of Foster Families for Equal. & Reform, 431 U.S. 816, 847 (1977) (upholding a procedure of removing foster children from their foster homes); Stanley v. Illinois, 405 U.S. 645, 658 (1972) (holding that parents are entitled to a hearing before their children are removed from their custody and that parents have substantive due process rights to the care and custody of their children). 20. See, e.g., Moore v. City of E. Cleveland, 431 U.S. 494, 503-06 (1977) (plurality opinion); see also Susan Gluck Mezey, ConstitutionalA djudication of Children'sR ights Claims in the United States Supreme Court, 1953-92, 27 FAM. L.Q. 307, 323-25 (1993) (listing forty-seven cases on children's rights). 21. See, e.g., Meyer, 262 U.S. at 403. 22. See Yoder, 406 U.S. at 230-34; Pierce, 268 U.S. at 534-35; Meyer, 262 U.S. at 399. 23. See Griswold v. Connecticut, 381 U.S. 479,485-86 (1965). 24. See Santosky v. Kramer, 455 U.S. 745, 753 (1982) ("The absence of dispute [concerning the fundamental nature of the parent-child bond] reflect[s] this Court's historical recognition that freedom of personal choice in matters of family life is a fundamental liberty interest protected by the Fourteenth Amendment."); see also Stanley, 405 U.S. at 651. 25. Yoder, 406 U.S. at 232. 26. See, e.g., Griswold, 381 U.S. at 485-86. https://scholarlycommons.law.hofstra.edu/hlr/vol30/iss3/1 6 Guggenheim: Minor Rights: The Adolescent Abortion Cases 20021 THE ADOLESCENTABORTION CASES In Meyer v. Nebraska2,9 the first significant parents' rights case, the Supreme Court held that the liberty protected by the Due Process Clauses of the Fifth and Fourteenth Amendments encompassed the right to marry, establish a home, and bring up children; a statute forbidding the teaching of the German language was invalidated as an impermissible infringement on the freedom of parents to have their children learn a foreign tongue if they wished. In dictum, the Court considered the practice, endorsed by Plato and others, of removing children from their homes for training by "official guardians" and concluded: 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 Relying on Meyer, the Court two years later struck down an Oregon statute requiring children to attend public schools in Pierce v. Society of Sisters. The Justices found that this statute unduly interfered with the right of parents to select private or parochial schools for their children and that it lacked a "reasonable relation to [any] purpose within the competency of the State."33 The Court wrote: The fundamental theory of liberty upon which all governments in this Union repose excludes any general power of the State to standardize its children .... The child is not the mere creature of the State; those who nurture him and direct his destiny have the right, coupled with the high duty, to recognize and prepare him for additional obligations.3 In Prince v. Massachusetts," the Court asserted in dictum that "[i]t is cardinal with us that the custody, care and nurture of the child reside first in the parents, whose primary function and freedom include 27. See, e.g., Santosky, 455 U.S. at 753-54; Cleveland Bd. of Educ. v. LaFleur, 414 U.S. 632, 639-40 (1974); Yoder, 406 U.S. at 230-34; Stanley, 405 U.S. at 651; Prince v. Massachusetts, 321 U.S. 158, 166 (1944); Pierce,2 68 U.S. at 534-35; Meyer, 262 U.S. at 399. 28. See, e.g., Stanley, 405 U.S. at 651; Grisivold, 381 U.S. at 500 (Harlan, J., concurring); Poe v. Ullman, 367 U.S. 497,551-52 (1961) (Harlan, J., dissenting). 29. 262 U.S. 390 (1923). 30. See id. at 403. 31. Id. at 402. 32. 268 U.S. 510,534-35 (1925). 33. Id. at 535. 34. Id. 35. 321 U.S. 158 (1944). Published by Scholarly Commons at Hofstra Law, 2002 7 Hofstra Law Review, Vol. 30, Iss. 3 [2002], Art. 1 HOFSTRA LAW REVIEW [Vol. 30:589 preparation for obligations the state can neither supply nor hinder.36 In 1972, the Court declared unconstitutional an Illinois dependency and neglect statute that deprived unmarried fathers of the care and custody of their natural children on the death of the mother without any showing of the father's unfitness.37 The Court held that when the state seeks to disrupt the parent-child relationship, its justifications for doing so must satisfy an exacting standard of scrutiny because "[lt 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.""'3 B. Clashes Between Children and the State The second set of cases involves clashes between children and the state. These cases are less venerable; many of them were decided in the 1960s. They involve the Due Process Clause of the Fourteenth Amendment, particularly in juvenile delinquency proceedings39 and in the public schools. ° They also concern the First Amendment,4' along - 42 with the occasional Equal Protection case. 36. Id. at 166. Prince nevertheless held that the state could limit this freedom to the extent necessary to protect children from serious hazards to their physical well-being. See id. The Court sustained the conviction of a minor's guardian for violating a child labor law by permitting the child to sell evangelical newspapers pursuant to the missionary tenets of the child's and guardian's religion. See id. at 170. "Parents may be free to become martyrs themselves. But it does not follow they are free ...to make martyrs of their children ....I d. at 170. 37. See Stanley v. Illinois, 405 U.S. 645, 658 (1972). 38. Id. at 651 (second alteration in original) (quoting Kovacs v. Cooper, 336 U.S. 77, 95 (1949) (Frankfurter, J., concurring)). "The Court has frequently emphasized the importance of the family. The rights to conceive and to raise one's children have been deemed 'essential,' 'basic civil rights of man,' and '[r]ights far more precious.., than property rights.' '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.' The integrity of the family unit has found protection in the Due Process Clause of the Fourteenth Amendment, the Equal Protection Clause of the Fourteenth Amendment, and the Ninth Amendment." Id. at 651 (alteration and omission in original) (citations omitted). 39. See Breed v. Jones, 421 U.S. 519, 520 (1975); McKeiver v. Pennsylvania, 403 U.S. 528, 533 (1971); In re Winship, 397 U.S. 358, 358-59 (1970); In re Gault, 387 U.S. 1, 30 (1967). 40. See Ingraham v. Wright, 430 U.S. 651, 653 (1977); Goss v. Lopez, 419 U.S. 565, 567 (1975); Tinker v. Des Moines Indep. Cmty. Sch. Dist., 393 U.S. 503, 505 (1969); Brown v. Bd. of Educ., 347 U.S. 483, 495 (1954); W. Va. State Bd. of Educ. v. Bamette, 319 U.S. 624, 637 (1943). 41. See Tinker, 393 U.S. at 505; Ginsberg v. New York, 390 U.S. 629, 631, 635 (1968). 42. See, e.g., Trimble v. Gordon, 430 U.S. 762, 765-66 (1977); San Antonio Indep. Sch. Dist. v. Rodriguez, 411 U.S. 1, 6 (1973); Weber v. Aetna Cas. & Sur. Co., 406 U.S. 164, 165 (1972); https://scholarlycommons.law.hofstra.edu/hlr/vol30/iss3/1 8 Guggenheim: Minor Rights: The Adolescent Abortion Cases 2002] THE ADOLESCENTABORTION CASES Perhaps the most well-known children's rights case, and the one widely regarded as igniting the subject, is In re Gault4,3 decided in 1967. In Gault, the Court was given its first opportunity to determine what, if any, procedural constraints the Constitution placed on state officials in juvenile delinquency proceedings.: The Court refused to take for granted that juvenile delinquency trials should precisely mirror their adult criminal counterparts.5 Instead, the majority wished to find a jurisprudential basis for affording the essential protections of the adult criminal process while preserving the rehabilitative goals, confidentiality, and other benevolent features of the juvenile court process.4' To effect these results, the Gault majority decreed that juveniles would enjoy those constitutional rights-but only those rights-necessary to implement the Due Process Clause's guarantee of "fundamental faimess.' 47 The Court addressed four specific rights at issue in the case before it: the privilege against self-incrimination and the rights to counsel, fair notice of the charges, and to confront and cross-examine adverse witnesses.4 The Court concluded that these rights are so fundamental to a system of justice, that they are required in juvenile delinquency prosecutions.49 The Court left for another day, and other cases, the task of further fleshing out its vision of the core elements of a fundamentally fair justice process."° Three years later, in In re Winship,5' the Court revisited the subject, addressing the question whether a juvenile may be convicted of a delinquency offense based only on a preponderance of the evidence rather than the usual adult criminal standard of proof beyond a reasonable doubt.52 The Court ruled that in juvenile delinquency cases, as Glona v. Am. Guarantee & Liab. Ins. Co., 391 U.S. 73, 74 (1968); Levy v. Louisiana, 391 U.S. 68, 70 (1968). 43. 387 U.S. 1 (1967). Many years earlier, the Court held that when persons under eighteen are prosecuted in the adult criminal justice system, they retain basic constitutional rights in those proceedings. See, e.g., Gallegos v. Colorado, 370 U.S. 49, 54-55 (1962); Haley v. Ohio, 332 U.S. 596, 601 (1948). 44. See Gault, 387 U.S. at 4. 45. See id. at 30. 46. See id. at 21. 47. See id. at 30-31, 31 n.48. 48. See id. at 29. 49. See id. at 33-34 (notice); iala t 36, 41 (counsel); id. at 49-50, 55 (self-incrimination); id. at 56-57 (confrontation and cross-examination). 50. See id. at 13, 31 n.48. 51. 397 U.S. 358 (1970). 52. See id. at 359. Published by Scholarly Commons at Hofstra Law, 2002 9