Tipping the Balance in Favor of Justice: Due Process and the Thirteenth and Nineteenth Amendments in Child Removal from Battered Mothers

After Sharwline Nicholson was assaulted by her boyfriend for the first time, the Administration for Child Services (“ACS”) of New York took her children without a court proceeding and temporarily placed them with foster parents. This action was particularly surprising because the children had not been abused by either their father or their mother. Without determining who was at fault, ACS concluded that Nicholson was unfit to parent because she had “engage[d] in acts of domestic violence,” even though she had not assaulted her children or her boyfriend but was only assaulted herself. Nicholson’s experience was not unique, as she represented a class of mothers who had children removed under similar circumstances.

In what has already been called a “landmark” ruling, Nicholson v. Williams held that the ACS policy violated abused mothers’ substantive due process rights by taking away their children “solely because the mother[s] [had] been abused.” In addition to finding a Fourteenth Amendment substantive due process violation against the city, the court suggested that the Thirteenth and Nineteenth Amendments should be “added” to this Fourteenth Amendment analysis. While noting that the Thirteenth and Nineteenth Amendments could aid a Fourteenth Amendment analysis, the Nicholson court did not adequately articulate the precise impact either of the amendments could have on the substantive due process analysis or how this analysis would impact a future battered mother’s substantive due process claim. There have been no prior attempts in the literature to articulate the connection between the Thirteenth and Nineteenth Amendments and a Fourteenth Amendment substantive due process analysis. Furthermore, prior to Judge Weinstein in Nicholson, no commentator has argued that the Thirteenth and Nineteenth Amendments should be combined in the context of domestic violence.

This Comment builds on earlier writings by arguing that the Thirteenth Amendment’s prohibition of slavery-like treatment and the Nineteenth Amendment’s guarantee of autonomy bolster a battered mother’s Fourteenth Amendment substantive due process claim when her children have been taken from her solely because she was abused.