"The Constitutionality of Selected Fertility Control Policies"

Abstract

The constitutionality of fees for education raising the age of marriage limiting space in housing and family size restrictions for government employees as means of lower the U.S. fertility rate is examined. Fees for education might possibly be constitutional because the constitution does not mandate free education for all children. Various desegregation decisions have said that education must be evailable to all children on the same basis which means if fees were charged there would probably have to be a subsidy for poor families. Raising the age of marriage is attractive not only as a means to reduce fertility but also as a possible means of reducing divorce. It has long been accepted that states have the right to mandate laws regulating conditions for marriage but raising the age of marriage may just increase the illegitimacy rate. Sanctions against illegitimacy will be seriously questioned expecially if directed toward the children. The interstate commerce clause could be used to regulate the amount of space within a building and thus restrict housing space. Regulations of building size and height have already been deemed proper by the government and this restriction is a possible means of controling fertility. However regulating size of families for government employees - i.e. hiring or refusing to hire and firing on the basis of number of children - would most certainly be considered unconstitutional. A series of civil rights decisions have maintained that there must be a relationship between job criteria and job performance and it would be most difficult to prove any relationship between family size and capability as an employee. It is concluded tath some type of government intervention may be necessary because Americans are not inclined to limit family size to the 1 child per couple necessary to stop population growth.