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Wednesday, August 19, 2009
Are There Constitutional Limits on the Extent to Which the State Can Give Parents Authority over Their Children?
And if so, what are they? I have been thinking about this issue quite a bit lately.
I am mainly interested in thinking about whether there are any constitutional limitations on states giving parents the ability to control their children's bodies - specifically in the contexts of medical treatment (therapeutic and non-therapeutic) and corporal punishment (or physical abuse). These matters are ones that are largely regulated by state law, of course. State (common or statutory) law places limits on parents' legal rights to physically punish their children, and state law generally dictates parents' rights to make medical decisions for their children in most instances. Indeed, it is difficult to see much of a constitutional issue in this area most of the time due to the Supreme Court's reluctance to find state action (i.e., a state obligation to protect children from their parents) even in the most extreme circumstances (e.g., DeShaney).
But then there's abortion.....
The "minor abortion cases" hold that minors have a right to access abortion without involving their parents if they can convince a judge that 1) they are mature and well-informed enough to make the abortion decision on their own or 2) that the abortion would be in their best interests. This appears, then, to be a constitutional right against both the state (the state cannot forbid all minors from accessing abortion) and the parents (even the parents do not have a right to dictate the minor's medical choice in this context).
Admittedly, the minor abortion cases arise in a somewhat unusual context. They were constitutional challenges to parental notice or consent laws, many of which created a different rule for minors seeking abortions than for minors seeking prenatal care or treatment for STDs. So there was obvious state action. But what about a case where the common law dictates that parents can make medical decisions for their children, and a parent seeks to force her child to donate a kidney to another child. Would the donor child have bodily integrity rights that prevent this? Does it matter whether the child is old enough to understand what is going on? These cases arise rarely (and are generally resolved without reference to constitutional claims), but they do arise - and in my view they raise difficult, relatively unexplored questions.
Or maybe I'm missing something?
Posted by Jessie Hill on August 19, 2009 at 11:22 AM | Permalink
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The juvenile abortion cases, it seems to me, are more in the nature of empancipation proceedings, determine who is a true non-adult, rather than actually addressing the question of what powers a parent has over an adult. Mildly retarded pregnant twelve year olds are likely to be as subject to parental authority as a child in any other context; a pregnant sixteen year old is likely to be afforded the opportunity to defy their parents (and could have moved out, emancipated themselves and made their own decisions if the timing of the abortion proceedure weren't so urgent).
There is, I think, an increasing trend to say that young women who are sexually mature should be treated as adults for purposes of their own sex related health care, and enforcement of statutory rape laws (except those for prepubsescent children) is very much the exception and not the norm in cases where they are violated consentually.
The constitutional boundary of what states may permit parents to do to their children is unlikely to come up, because there is still enough of a consensus to support abuse and neglect laws that exceed any such constitutional threshold. If anything, people who harm children are the last gasp of the mass incarceration movement which is generally subsiding in the face of reduced crime and tight budgets.
Posted by: ohwilleke | Aug 20, 2009 11:07:13 AM
Hm. I'm not sure it is the same question. So, for example, is the state *justified* in denying parents the ability to choose certain nontherapeutic surgical procedures for their children - eg, plastic surgery, ear piercing, or genital normalization surgery for intersex infants? Probably yes, but I'm not sure that means that children have a bodily integrity right that *forbids* the state to grant this authority to parents. I think there is a baseline bodily integrity right here and a parental right on the other side, but there is also some space in between the two where state law can vary.
Posted by: Jessie Hill | Aug 19, 2009 8:30:23 PM
It strikes me, for what it's worth, that the question might well be framed differently. We might ask, instead, "in what circumstances is it justified for a state to super- or intervene with respect to a parent's exercise of his or her authority over his or her child?" (I assume -- I'm sure, actually -- that there *are* such circumstances. It seems equally clear to me, though -- contra James Dwyer, for example -- that a parent's appropriate authority over his or her child is not "given" by the state.) Putting the question this way would not, I imagine, always or even often yield different answers.
Posted by: Rick Garnett | Aug 19, 2009 5:09:46 PM
Forced kidney donation seems a bit of an extreme example, or at least there is no obvious benefit to the donor child. What about vaccination? There is such a compelling interest in not only permitting, but promoting vaccination of unconsenting children. If there really is an inviolable bodily integrity right, wouldn't vaccination regimes be suspect? And if they are not, I think we can call into question doctrinal justifications for other bodily integrity rights, such as abortion (which may still be settled enough, in one way or another, to find external support).
Posted by: AndyK | Aug 19, 2009 12:03:03 PM
Two quick comments. One very interesting context is the ability of parents whose biological child has a genetic disease to use IVF to have a second child whose stem cells may cure or alleviate the first child's genetic condition. This has been permitted (of course, the use of the second child's cord blood is not invasive) with the caveat that the second child has to be wanted in his or her own right (though how the state enforces that I don't know).
Of course, once a child is born alive, it becomes a own juridical person, with all accompanying rights. Thus, it seems to me that there are very real constitutional limits to the extent to which parents have authority over their children. The parents' rights end where the childrens' rights begin--including the rights to bodily integrity. Therefore, assuming that the minor is incapable of making his/her own decisions, a parent's consent to a procedure such as a kidney transfer is not effective as consent, and a guardian ad litem for the child must be appointed in order to protect that child's interests. In these cases, consent will only be given if it is in the minor's best interests. The case that comes to mind is Curran v. Bosze, in which a noncustodial father wanted his 3.5-yr-old twins to get a blood test to see if they would be a bone marrow match for their half-brother who was a virtual stranger to them; the half-brother would die from leukemia if no match was found. The custodial mother opposed the blood test and the court found for the mother, stating that the consenting parent must be informed of the procedure's risks and benefits, that the child must have emotional support from the caregivers, and that an existing, close relationship must exist between the child donor and the recipient so that a psychological benefit may be derived.
Then again, the situation is different if the child is mature enough to understand the act of kidney donation; "mature" minors, for instance, could consent to the procedure if they could convince a court that they had compelling and legitimate reasons for donating the kidney.
You are right that in many of these cases courts do not trace the roots of the child's bodily integrity or other rights back to their constitutional roots. Nonetheless, I think those connections are implicit.
Posted by: Jody Madeira | Aug 19, 2009 12:02:25 PM
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