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In the aftermath of Sept. 11, federal laws were passed to fight terrorism that also restrict the civil liberties of all Americans.
“There is reason to be concerned about how our liberties have been implicated in efforts to fight terrorism,” says Helena Silverstein, associate professor of government and law. She cited four areas where concerns have been raised over reducing civil liberties: racial profiling, religious freedom, searches and seizures, and treatment of detainees. In some cases, the government can now listen in on private lawyer-client conversations, an act typically prohibited by law. Police can now search a home or office while an individual is away without notifying the person immediately that a search was made and what was taken. The level of proof in some instances has been reduced from “probable cause” to the lower threshold of “reasonable suspicion.” “We are giving our liberties away to feel safe,” she adds. “It’s understandable, given the circumstances, but it may be very short-sighted.”
Silverstein’s interest in civil rights and liberties includes a focus on how social movements use law to press for change. She studied how the animal rights movement turned to the language of rights and the courtroom in an effort to secure protections for animals. She is also interested in the extent to which gaps exist between civil rights and liberties as they appear on the books and as they are implemented in practice. Her primary research in this vein—research pursued with the assistance of several EXCEL Scholars—examines state laws requiring parental involvement in the abortion decisions of pregnant teens.
“There are 32 states that have some form of parental involvement law in effect,” says Silverstein. “Seventeen states require parental consent, and 15 require parental notification, usually by certified mail. I am interested in how the judicial bypass option functions in those states, and whether and to what extent it is in accordance with established constitutional law.” The judicial bypass option allows pregnant minors to seek a judge’s permission to waive the required parental involvement.
“My studies of how Pennsylvania and Alabama county courts respond to inquiries about the judicial bypass procedure have found that a large percentage of courthouses are not prepared to implement it or provide accurate information on bypass proceedings,” says Silverstein. “Since the constitutionality of parental involvement requirements is contingent on the availability of a bypass option, this poses a threat to the constitutional rights of pregnant minors.” In a number of Alabama counties, judges know of the bypass law but refuse to hear petitions to waive parental consent despite the fact that minors have a legal right to pursue a bypass in their home counties.
“Helena is caring, energetic, intelligent, enthusiastic and has a good sense of humor,” says Kathryn Lundwall ’98, who did a senior honors thesis with Silverstein. “These qualities attract students to her. Her assignments were always creative and required independent thinking. I learned how to read through problems and develop solutions. My writing skills improved tremendously. She also helped build my confidence.” Lundwall graduated from the University of California at Berkeley Law School and is now a law clerk for Federal Judge Franklin Van Antwerpen, Easton, Pa. She and Silverstein are beginning research into whether some judges in abortion bypass petition hearings overstep their legal authority when cross-examining minors.
“There’s the law that’s on the books, and the law in the real world,” says Silverstein. “At Lafayette I can study these issues and engage students in my research. I can integrate my scholarship and my teaching.”
Highlights
Publications:Unleashing Rights: Law, Meaning and the Animal Rights Movement, University of Michigan Press, 1996; “Honey I Have No Idea: Court Readiness to Handle Petitions to Waive Parental Consent for Abortion,” with Leanne Speitel ’02, Iowa Law Review (forthcoming);
Honors: Thomas Roy and Lura Forrest Jones Lecture Award, 2000; Pi Sigma Alpha Award for best paper presented at the 1999 annual meeting of the Western Political Science Association; Aaron Hoff Award for outstanding contributions to the Lafayette community, 1998.
Achievements: Mellon summer research fellowship, 2000; editor, review essays, Law & Society Review, 1999-2002; board of trustee member, Law & Society Association, 1999-present; McKelvy Scholars House resident faculty adviser, 1996-2000.
Contact: (610) 330-5389, silversh@lafayette.edu