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Originally Posted by fatboy
It is not enumerated in the Constitution as a right reserved by the Federal government. Therefore, it is a right reserved by the states or by the people. Though some have tried, no state has been successful at legislating how many progeny a person can have. Therefore, it is a right reserved by the people.
Perhaps Startup can give us the full skinny on this?
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I doubt that the woman's lawyer would fight the contempt charge with the 10th Amendment. Instead, the lawyer would probably use the so-called right to privacy embodied within the 14th Amendment's due process clause.
By using the 14th Amendment, the government would have to show that the judges order was necessary to achieve a compelling governmental interest and that is a very hard standard to satisfy.
But, even after considering the foregoing, the government might be able to satisfy the standard because what the woman is doing exceeds mere irresponsibility. Since her irresponsibility is harming child(ren), the Court that ultimately hears the case may be inclined to side with the judge.
Of course, taken to the extreme, a precedent effectively criminalizing irresponsible behavior might be ridiculous, but if the decision were tailored very narrowly, it might be upheld. The belief that two crack heads could be allowed to add a drug-addicted child to the rolls of the foster home population each year is unreasonable.
It would be a close case where the outcome would probably come down to the personal predilictions of the judge(s) who hear the case.