WTE: State power and family formation

Wyoming legislators are nearly halfway through the 2019 session. In the rush to handle 499 bills, it is easy to lose sight of the foundational principle of good governance.

Government power should always protect individuals from harm while using the least amount of state power that is necessary. Let’s look at two bills to illustrate this point.

“HB 60 Underage marriage-exceptions repeal” was proposed to address some horrific situations. Minors from some cultures are occasionally forced by parents into young marriages. This is a form of child abuse with lifelong consequences. The state has a duty to protect the rights of every citizen, no matter how young.

The proposed law would have raised Wyoming’s legal age of marriage from 16 to 18 years old. It also would have taken away any ability for parents and teenagers to ask a judge for special permission before turning 18.

Initially the bill won the overwhelming approval of the House Judiciary Committee (8-1). But when the bill came to the house floor, some more fundamental questions arose.

If some parents abuse their children, should all parents be stripped of parental rights? If some minors are exploited, should all minors lose their right to marry? For that matter, why does the state have an interest in marriage at all?

In answer to the last question, the state cares about marriage because it has a duty to make sure that every child is cared for in the best way possible, and marriage does that better than any other institution.

So why should the state deny marriage to a young couple that wants its child to be born into a stable marriage? If the original problem was the occasional unjust exercise of parental authority, how is that fixed by the state unjustly taking power to itself?

So, the House amended the bill to continue allowing exceptions, if approved by parents and judges. Judges are there to discern if a minor is free enough from control of other adults to give meaningful consent. The following day Rep. Pelkey (D-Laramie), the bill’s sponsor, amended it yet again, to take away that judicial and parental discretion prior to 16 years of age. The amended bill failed on a 26-31 vote.

The debate surrounding underage marriage stands in contrast to the debate about “HB 140 Abortion-48 hour waiting period.” As with coerced marriage, young adults are more susceptible to coerced abortion than more mature women.

Of course, power differentials are created by a variety of factors other than age. Parents, boyfriends, husbands and abortion providers all have ways to pressure a woman into making the decision that they want, rather than what she wants.

The Eliot Institute is one of the leading advocates for women who have been forced to abort. In a 2012 report they found that 64% of women feel pressured to abort; 79% were denied information about available alternatives; 67% felt rushed or uncertain; and 84% were not sufficiently informed before an abortion.

As with marriage, it is the duty of the state to protect the human rights of all women not to be coerced into an abortion. The 48-hour waiting period is designed to do just that. It addresses the 67% of women who feel rushed or uncertain. It takes away the ability of abortion providers and authority figures to manipulate her decision using travel distance and time considerations as leverage.

Underage marriage and pressure to abort are related in that both marriage and abortion have to do with the transition from childhood to adulthood. Ultimately the attainment of adulthood has less to do with an arbitrary age—be it 16, 18 or 21—and more to do with the physical and emotional maturity to form a family of our own.

Seen through this lens, debate on “HB 60 Underage marriage-exceptions repeal” and “HB 140 Abortion-48 hour waiting period” shines a spotlight on two very different exercises of state power.

One would use the power of government to forbid formation of a family even when a family has already been formed by the conception of a child. The other would use government’s power to shield a vulnerable woman from more powerful persons who may want her to choose an abortion even while she wants to choose life.

Life, marriage and family are all pre-political realities. They have been happening long before Wyoming—or any other state or society--passed any laws to regulate them. For this reason, any legislating of these matters should use as light a touch as possible.

These mysteries should not be manhandled. They should be respected and upheld as the first duty of government.