How many thousands, tens of thousands, of young people have endured the pleasure of a TSA worker touching the parts of their body that would put anyone else in prison, or at least expel them from college? So what if the TSA has never thwarted a terrorist. Isn’t the bodily integrity of air travelers a small price to pay for the solace of safety for the fearful?

But at least the fellow-travelers are there and aware of the TSA’s advances. What about parents whose children are snatched by another group of well-intended protectors, only to be whisked away for a routine examination of their vagina and rectum. Not because of any particular concern that the child has been sexually abused, but just because . . . to not digitally inspect a child’s “most intimate parts” would mean the government didn’t do all they could, everything possible, to protect the child. By some random person’s finger spreading their labia.

The Ninth Circuit in Mann v. County of San Diego held that doing this violated the parents’ Fourteenth Amendment right and the children’s Fourth Amendment rights. The scenario began with another well-intended requirement, mandatory reporting.

On Monday, April 6, 2010, N.E.H.M.’s preschool director called Mark Mann after observing a red mark on her lower back. Mark went to the preschool and explained that he had struck N.E.H.M. with a wooden spoon the night before in a misguided effort to calm her. The preschool director told Mark that as a mandatory reporter, she was required to report the incident to the San Diego County Health and Human Services Agency (HHSA).

The old days of “spare the rod, spoil the child,” are long gone, and with good reason. My father used to tell me that it would hurt him more than it hurt me as he whipped off his belt. It wasn’t true. But does that mean any corporal punishment by a parent is endangerment? This involved a red mark, not a bruise, not welts, not broken skin. No matter, mandatory reporting requirements kicked in, and notification started a chain of events that well-intended people believe with all their passion are worth it for the sake of the children.

During one of these visits, social workers noticed that M.N.A.M. had a bruise on his forehead. Melissa explained that M.N.A.M. had hit his head on a kitchen countertop. When the social workers asked to photograph the bruise, however, Melissa protested that it felt “manipulative,” but later that day she apologized to the social workers and volunteered to take N.E.H.M and M.N.A.M. to Rady Children’s Hospital for a “Suspected Child Physical Abuse and Neglect Examination.” The next day, the children’s examining physician concluded that N.E.H.M.’s red mark was consistent with Mark’s explanation, and that M.N.A.M.’s bruise was “most likely accidental.”

Kids bump into things. Kids fall down. Kids get bruises, even break bones, in the ordinary course of being a kid. It could be parental harm or neglect, but it could also just be life without bubblewrap. The problem here was that social workers were on the case already, and where there’s smoke, there’s a need for the well-intended to substitute their view of life for the parents.

Despite Mark and Melissa’s cooperation, the social workers decided to prepare a dependency application in order to remove the Mann children from their home. The social workers omitted exculpatory evidence from the application—evidence that the district court later concluded would have rendered the application insufficient to support a protective custody warrant. Relying on the flawed application, the juvenile court issued a warrant  authorizing the removal of the children on April 12, 2010, and the County removed the Mann children from their home and took them to Polinsky later that day.

The social workers’ omission appears ominous, but in light of their decision to remove the children, which they apparently believed justified and thus of paramount importance to achieve to protect the children, how could they do less than put forward their most persuasive argument to accomplish what they believed to be necessary? Think of the children!

Meanwhile at Polinsky, while the Manns were appearing in court, a doctor, Nancy Graff, performed a ten- to fifteen minute medical examination of each of the Mann children that included a twenty-two point assessment of general appearance, behavior, mental status, and specific parts of the body (e.g., skin, head, and eyes).

Notably, the Manns weren’t exactly a couple of meth heads, likely suspected of allowing their kids to be infected by lice, but rather respectable folks.

Mark is the director of the Wesleyan Center for 21st Century Studies at Point Loma Nazarene University. Melissa is a nurse midwife at Scripps Hospital.

But the examination performed as the Manns were in court went a bit further.

The examination also included a gynecological and rectal exam, which involved a visual and tactile inspection of the children. For the gynecological exam, Dr. Graff testified that she asked the girls to “kind of drop their legs into a frog leg situation,” and “separate[d] the labia and look[ed] at the hymen . . . .” Staff also administered tuberculosis tests, requiring pricks of the
children’s skin, and the children gave blood and urine samples for drug screening.

There was no emergency here, demanding that county social workers remove these children from the care of their parents. Indeed, there was no cause for any of this, except the “excess of caution” reflected in the mandatory reporting requirement, lest any child be harmed and any case of abuse go unpunished.

To reach this level of pre-emptive action, the belief that the government is better able to protect a child, to know whether a parent is doing what the most passionate child advocate would demand of them, rather than to defer to parents when it comes to raising their children. How can one trust a parent when there are passionate advocates out there? Except parents, and children, still have certain constitutional rights, even though they are hardly as competent to know what’s best for the children as the passionate advocate.

“The right to family association includes the right of parents to make important medical decisions for their children, and of children to have those decisions made by their parents rather than the state.” [See Wallis v. Spencer, 202 F.3d 1126, 1141 (9th Cir. 2000).]

That the Manns prevailed on appeal is all well and good, but doesn’t change the fact that the County of San Diego already had their way with the Manns’ children. But the social workers meant well.