Parents have many responsibilities when it comes for caring for their children. Children, especially at a young age, need constant attention, guidance, and supervision. One of a parent’s most challenging and complicated tasks can be to make medical decisions for their child. Most parents will be faced with countless medical decisions throughout the life of their child – from circumcision at birth, immunizations before elementary school, and other routine healthcare issues. Other parents must make frequent medical decisions for their critically ill children. As innovations in medicine have given us more options in healthcare, we have seen more and more cases before the courts pitting parents’ religious beliefs against the state intervening to serve the medical interests of the child. Just as healthcare is evolving, so are our nation’s young people. Minors are maturing more hasty now than ever before and with that maturity should come the ability to take a larger role in making the decisions that shape their lives.
Greater statutory protections should be afforded to a outmoded minor’s religious practices when a court is determining whether to allow a medical procedure over the religious objections of a minor’s parents. The U.S. Constitution gives all Americans the factual to freely exercise the religion of their choice, but often, parents’ religious views oppose what may be in the best interest of their child’s medical care. Parents’ religious practices usually are protected, unless the state can show a compelling interest as to why intervention is proper and intervention is done through least restrictive means. It is relatively well settled that if a parent refuses to consent to life-saving treatment for their child, the state will intervene to ensure the child receives the medical care.[1] A less explored area of the law exists in the realm of non-emergency, elective and cosmetic medical treatments of minors. In these situations, a mature minor’s religious preferences should be protected unless the state can note a rational basis for their intervention. Smaller children’s religious preferences are not and should not be afforded much protection; this is rational considering young children’s general inability to understand the consequences of medical treatment and its possible relation to complicated religious doctrine. Before I spy why greater statutory protections should be allowed for mature minors, we must first peer the current state of the law and how it came to be.
I. Fundamental Right of Parents to create Medical Decisions
Parents have the right to fabricate decisions regarding their children; this statement is both logical to non-legal scholars and legally good. The first of three benchmark cases in this area involved a nine-year-old selling religious pamphlets on street corners with her aunt, who was also her guardian. Prince v. Massachusetts[2] recognized that adults have the right to practice their religion freely, but that apt does not include the ability to expose their child to illness or possible death. As early as the mid-1940’s, the case made it clear that a parent’s apt to control his child is not without limits, even when a free exercise claim is involved.[3] The now famous language of the Court declares that “parents may be free to become martyrs themselves. But it does not follow they are free, in identical circumstances, to make martyrs of their children before they have reached the age of pudgy and legal discretion when they can make that choice for themselves.” [4]
Almost thirty years later, the Supreme Court issued another significant opinion dealing with parents’ religious beliefs and decisions affecting their child. The holding in Wisconsin v. Yoder was that the state’s compulsory school attendance requirement for children under the age of 16 infringed upon the Amish parents’ right to indoctrinate their children in accordance with their religious beliefs.[5] However, the Court stated the decision was made in portion because the school attendance was more than just a matter of religion, it would affect the Amish family’s entire way of life.[6]
Yoder is an example of the Court performing a hybrid analysis, which takes place when two fundamental rights are at issue.[7] A hybrid analysis requires the dwelling to pass the highest level of scrutiny. In fact, the Supreme Court stated “the only decisions in which we have held that the First Amendment bars application of a neutral, generally applicable law to religiously motivated action have eager not the Free Exercise Clause alone, but the Free Spend Clause in conjunction with other constitutional protections.”[8] Specifically, Yoder held “when the interests of parenthood are combined with a free exhaust claim of the nature revealed by this record, more than merely a ‘reasonable relation to some purpose within the competency of the State’ is required to sustain the validity of the State’s requirement under the First Amendment.”[9] Therefore, throughout the medical neglect case law we will see the court applying strict scrutiny when hybrid claims are brought by parents wishing to have their right to parenthood as well as their right to religious freedom protected. As will be discussed in more detail, if a outmoded minor were to claim a right to make his own medical decisions based on his right to free exercise, the court would afford him less than strict scrutiny (probably rational basis review) because the claim is for protection of honest one fundamental right, not a hybrid of two.
As in Prince, the Yoder Court recognized that the state’s inherent power to control the activities and care of a child takes precedence over the parental right to religious free consume which could be harmful to the health or welfare of the child. The third benchmark case is not factually on point, but reaches the same conclusion as the two cases discussed above. Recent medical neglect cases have relied on Reynolds v. United States,[10] which upheld a criminal conviction for a man who asserted his bigamy furthered his religious beliefs. The Court again drew a line between an adult’s right to free spend and practice that is detrimental to public health or welfare stating “laws are made for the government of actions, and while they cannot interfere with mere religious beliefs and opinions, they may with practice”.[11] This case, like Prince and Yoder, stands for the principle that parents’ First Amendment rights are not always violated when the state makes decisions.
Of these three cases, perhaps the most important of all is Justice Douglas’s dissent in Yoder,[12] which suggested that a child’s opinion ought to be considered to determine whether his religious beliefs and ideals were aligned with those of his parents. Because it is the child’s life most directly affected by the decision, such an approach would be preferable, especially considering the trend of the law to recognize children as persons who, like adults, are protected by our federal Constitution.[13] If the child is someone the court may consider a “mature minor” or close to the age of majority, his own religious beliefs and opinions should be considered when the court is facing a case that will ultimately decide whether a medical procedure will or will not be performed on the child. This should be true regardless of the nature of the procedure, whether it is life-saving or cosmetic. As will be explained later in more detail, the “mature minor doctrine” states that some minors are capable of making their possess medical decisions because, like adults, they understand the risks, possible complications, and prognosis of the treatment they are choosing to undergo or refuse.
The majority concept in Yoder, addressing Douglas’s statements in the dissent, states that their holding does not depend on the child’s religious belief because the parents are the ones being prosecuted, not the children.[14] While that is true, it is absurd to consider that the court’s decision does not directly shape and affect the life of that child. The court argues that the religious beliefs of the children should not be contrasted with those of their parents because the children are not parties to the litigation, but it is the children whose lives the lawsuit discusses and to ignore their opinions is to ignore their legal rights.
This state of the law deals with the parents’ rights to religious freedom and their right to accomplish medical decisions for their children. In order to fully understand why the standards should be changed to include a closer look at the juvenile’s rights, we must first examine what the parents’ rights are and from where they stem.
II. Parents’ Right to Religious Freedom
All Americans have the right to religious freedom under our Constitution by virtue of the 1st Amendment.[15] Made applicable to the states by the 14th Amendment,[16] the Free Exercise Clause states “Congress shall effect no law respecting an establishment of religion, or prohibiting the free exercise thereof.” Very briefly stated, the United States citizens have two basic freedoms – the freedom to believe, which is absolute, and the freedom to act, which is qualified to protect society as a whole.[17] It rightfully follows then that parents have the suitable to believe whatever they want regarding the healthcare of their children, but their conduct and decisions can be subject to restrictions.
Most cases in this place of the law involve parents of either the Jehovah’s Gape or Christian Science faiths. The Biblical basis for parents’ not agreeing to some medical treatments is quite interesting. For example, Jehovah’s Witnesses often call on various passages which state that ingesting blood is wrong, you must abstain from it and if you do not you will be outlawed from God’s people.[18] Mary Baker Eddy, the founder of the Christian Scientists, professed that illness is a manifestation of a diseased mind, so the moral sickness must be cured before the physical can be.[19] She also taught that children’s illnesses were due to the diseased minds of the parents.[20] Christian Scientists believe that practitioners of their religion should administer spiritual serve to heal a person’s physical problems.[21] The Free Exercise Clause protects these beliefs, but it does not allow for their unqualified practice. As was stated in Prince, parents can martyr themselves, but as we will now see, they cannot make martyrs of their children.
III. Ability of State to Intervene
Perhaps the first case involving the position attempting to prefer custody of a child to administer medical treatment was In re Tuttendario, [22] in which a seven-year-old boy with rickets needed to have an operation to fabricate his legs gaze and function more normally. Without the procedure there was a risk he would become crippled for life, but the court refused to take custody away from the parents ruling that it was against public policy.[23] The judge also eminent that his condition did not endanger his life,[24] which is calm often seen as the standard today.
The doctrine of parens patriae (Latin for “parent of his or her country”)[25] gives courts the jurisdiction to care for children, protect them from abuse and neglect, and remove them from the custody of their parents when the situation so warrants.[26] Every plot has definitions in their abuse/neglect/dependency statutes to resolve what standards parents must follow; it is also through these statutes that courts have the power to remove children if primary. Medical neglect is also statutorily defined in each state. In Matter of Hofbauer,[27] the court held that the facts of each case must be looked at to determine whether a child is being deprived of adequate medical care and is therefore a neglected child. Among other factors to be looked at are whether the parents followed a treatment prescribed by their doctor or another course of action that is acceptable under some medical authority, and whether the course of action the parents chose was suitable given all the circumstances.[28] When the parents’ religious beliefs affect their decision making about the type of treatment or lack there of to pursue for their child, they must be considered. As discussed above, the court will analyze the parents’ right to make medical decisions for their child and their right to religious freedom as a hybrid claim, thus requiring a showing of strict scrutiny.
On rare occasions courts mention the importance of the expressed preference of the child;[29] however, even when children are at an age where they are able to form their own religious convictions (adolescence for most) the child’s religious preference is rarely discussed. This is reasonable, as a small child likely does not fully understand the consequences of undergoing or refusing a specific type of medical treatment or contain his own religious beliefs. In medical neglect cases the parents’ interests are weighed against those of the place, and while in the huge majority of instances a guardian ad litem has been appointed to advocate for the best interest of the child, there still seems to only be two major players – the parents and the state. If a former minor is involved, the court will not require the same heightened scrutiny as is required to overcome a parent’s medical objection, but would likely perform a rational basis review of the state’s interest in requiring treatment over the religious objection.
IV. Statutory Exemptions for Religious Adherents
By 2003 thirty-nine states and the District of Columbus had enacted laws permitting parents to reject medical treatment for their children in favor of faith healing.[30] However, most of those state laws specifically require if a child has a life-threatening condition, a doctor must be consulted. An example of this statutory exemption is in Connecticut, where the statute speaks specifically about Christian Scientists and states “the treatment of any child by a Christian Science practitioner in lieu of treatment by a licensed practitioner of the healing arts shall not of itself constitute maltreatment.” [31]
Some states have found these laws to be unconstitutional. A common argument against them is that children whose parents belong to a religion that practices faith healing are not exposed to traditional medical settings where a professional could encounter the child and decide to seek a judicial intervention.[32] This fact makes the law almost useless because the courts do not know about the child’s situation and cannot be of assistance, thus making the laws a threat to the health and welfare of children in that jurisdiction.
These laws are in place largely because of the Child Abuse Prevention and Treatment Act of 1974,[33] which established federal standards for implementing various child abuse programs and help by federal money if the region met the standards.[34] Thanks to Christian Science lobbyists, one of the regulations included a requirement that parents who do not provide medical treatment to their child because of their religious beliefs are not negligent parents.[35] Before the Act, only 11 states had religious exemptions, but in order to comply and receive the federal money 33 more states passed exemption laws.[36] A 1983 amendment to the Act allowed for states to choose whether to maintain or repeal the religious exemptions when determining if parents have been neglectful without affecting their financial support.[37]
Ohio had an exemption for religious adherents until it was found to be a violation of the First Amendment in the 1984 caseState v. Miskimens.[38] The old-fashioned law recognized that no one could create a substantial risk to the health of a child by violating their duty of care, but also stated:
It is not a violation of a duty of care, protection, or support under this division when the parent, guardian, custodian, or person having custody or control of a child treats the physical or mental illness or defect of the child by spiritual means through prayer alone, in accordance with the tenets of a recognized religious body.[39]
Miskimens held the exemption was based solely on religious preference of the accused, and it was a violation of the entanglement prong[40] to determine whether the claimed religious right glad the statutory requirements.[41] Also famed in the case was an equal protection argument that religious adherent parents were treated differently than other parents in violation of the 14th Amendment.[42] The court held a third reason for the unconstitutionality of the law was the vagueness as to what constituted a recognized religious body, and what is meant by ’spiritual means’.[43]
In Cantwell v. Connecticut,[44] the Supreme Court illustrious that a statutory exemption violates the Establishment Clause if it requires the state to act or refrain from acting on the basis of whether it recognizes a particular religious belief. Certainly, having to determine the worthiness of a certain religion would violate the Lemon test[45] for excessive entanglement.
The government cannot statutorily advance a religion or a select a burden from persons practicing a certain religion, thus creating an incentive for others to join their religious sect; however, the government may make some permissible religious accommodations.[46] In Cutter, a group of current and prior inmates at various Ohio Correctional Facilities brought a claim that the prison officials were not allowing them to practice their ‘non-mainstream’ religions in violation of their 1st Amendment rights.[47] The Court held that the statutory restriction was not meant to “elevate accommodation of religious observances over an institution’s need to maintain order and safety.”[48]
Government accommodations may not supersede other important interests; in Cutter that interest was the safety and welfare of the petitioners as well as other prisoners. In medical neglect cases, the government’s interest is in protecting children from harm.
V. Constitutional Rights of Minors
Although their rights are not the same as those of adults,[49] children are not without constitutional rights. Minors have constitutional rights under the First Amendment which consequently, are subject to the same restrictions.[50] Just as a minor is free to have his own religious beliefs without qualification, he is also entitled to practice his religion subject to limitations for societal well being. When a child is of an age that he is ancient enough to weigh what he has been taught by his parents and what he has learned through personal experience, he should be given a voice in the outcome of a case to settle his medical treatment. Children, like adults, have a liberty interest in not being confined for unnecessary medical treatment.[51] However, only minors who have demonstrated a sincere, informed, and committed choice to follow their religious beliefs should be allowed to refuse life-saving medical treatments.
For elective or cosmetic procedures the bar can be set lower, but the minor should unruffled be required to show an honest belief in his religion to use it as an argument for or against the sought after medical care. An example of this would be where a parent does not want the teen to have a cosmetic procedure for religious reasons, but the teen does not share in his parent’s beliefs. If he has his fill strongly held religious beliefs, the mature minor’s religious convictions should be considered.
VI. Nature of the Medical Treatment
When charged with the task of determining whether to allow medical treatment over the religious objection of the parents and what piece the child should have in that decision, the courts took at two basic factors – the nature of the treatment and the age of the child. First, we will seek information from the nature of the treatments.
It is a well settled principle that parents cannot deny life saving treatment to their children[52] and the state has a compelling interest in ensuring the safety of its minor residents. It is not as certain when the medical treatment in question is not an emergency or life threatening situation; in these cases of cosmetic or elective procedures the court is likely to use a lower level of scrutiny. When the child’s life is not in immediate exertion, the court’s focus shifts to the nature of the treatment and the prognosis given by medical professionals. There are countless cases in the area of medical neglect, for purposes of this paper they will be considered from the direst types of illnesses to less serious.
a. Cancer
The category of cancer includes many different types of illnesses and many types of treatments. When dealing with children who have cancer and parents who oppose treatment for religious reasons, courts traditionally spy at the possibility of a better quality of life, a possible cure, surgery, administration of painkillers, chemotherapy, radiation treatments, and other possible avenues. For example, the court in In re Willmann[53] affirmed the trial court’s decision to adjudicate a child to be dependent when he required chemotherapy and possibly surgery to fight a malignant cancer that without action would take his life. Also an important factor in the case was that every physician consulted on agreed with the proposed course of treatment.[54] In another case enchanting a child with cancer, the court again ruled that her father’s religious beliefs in refusing her medical care was outweighed by her need to have treatment to deal with her sarcoma.[55] The doctors hypothesized a 25-50% chance of long-term success with treatment, but without treatment she would likely live only six to nine more months.[56]
Not all cases involving childhood cancer reach the same conclusion. A three-year-old child whose parents practiced Christian Science was not found to be a dependent child when his doctors said without chemotherapy he would die in six to eight months.[57] In this case, the treatment was extremely invasive, uncertain, toxic and life threatening in itself and had only a 40% chance of success.[58] The court looked at the fact that the parents’ decision to not seek treatment was a reasonable one considering the nature of the treatment and risk of failure.[59] The station fell short of their burden of proving (by positive and convincing evidence) that interference with the parent-child relationship was necessary to ensure the health and safety of the child.[60]
b. Blood Transfusions/Surgeries
Another major category of medical neglect cases involve children who need blood transfusions, surgery, or a combination of the two. Without a showing of parental unfitness, the state may not force surgery for a child.[61] As with the cancer cases, when dealing with blood transfusions the court studies the nature of the treatment and the risk to the child if the parents’ religious beliefs are followed to determine whether to require a procedure. The cases in this area span several decades, but the overriding standard is generally the same. For example, in 1952 the court held that it was proper to order a blood transfusion against the religious objections of both parents when if left untreated the condition would result either in death or severe, permanent mental impairment.[62] More than twenty years later came a similar case and a similar outcome. In Muhlenberg Hospital v. Patterson,[63] the court held it was in the best interest of the child and society as a whole to protect infants when there is imminent inconvenience of irreparable and severe brain distress, just as where the child is facing the possibility of death. In that case, the court ordered a blood transfusion over the mother’s religious objection for an infant suffering from jaundice.[64]
In 1991, Matter of McCauley[65] allowed a blood transfusion for an 8-year-old child and also set out several factors to consider regarding of the administration of blood and blood products: the age of the child, the risk to the child’s health if treatment is withheld, the probability that child’s illness would enter remission following the treatment, the risks associated with the treatment, the likelihood of a cure, and the possibility of a normal life if the treatment was ordered. In that case the child suffered from leukemia and had a low red-blood cell count. Doctors had to perform a bone marrow aspiration which required a blood transfusion in order to determine what type of leukemia she had and decide on a course of treatment.[66]
Courts will generally not order blood transfusions against parents’ religious objections when the situation is not life-threatening. However, there is not a positive line to show just how dire the situation must be for the spot to intervene. An example of such a situation was a case involving a child who suffered from polio and required a blood transfusion to have a spinal fusion surgery.[67] His mother objected to the transfusion but would give consent to the surgery. Here, the court stated that a patient need not be “at death’s door” before the court can intervene, yet held that “the state does not have an interest of sufficient magnitude outweighing a parent’s religious beliefs precluding medical treatment, when the child’s life is not immediately imperiled by his physical condition.”[68]
c. Epilepsy and Other Serious Conditions
Although epilepsy is a serious illness, courts have ordered that children suffering from it should not be treated against the wishes of their parents where the afflictions were not likely to become life-threatening without treatment.[69] Also considered were the side effects of the treatment for epileptic seizures which could involve other dangers to the child.[70]
Hydrocephalus is a condition in which fluid is retained in the cranium causing the head to become abnormally enlarged.[71] If left untreated, it could have serious mental and physical effects including reducing the functions of the brain and possible mental retardation.[72] In a case involving this disorder, the court celebrated that the child’s life was not immediately in danger even though it was unlikely her life would ever return to “normal.”[73] The court did not come by a significant difference between this situation and an immediate threat to her life, since if left untreated the disease would endanger the most basic qualities of her life.[74] Interestingly, the court held that because the child was unable to make her own choice about the consequences of following her parents’ religious beliefs, the court was right to step in and order the treatment.[75]
d. Dentistry and other Less Serious Conditions
An Iowa court upheld an order for the surgical removal of the tonsils and adenoids (against their father’s religious objections) of three children who were already wards of the state.[76] There was testimony that all the children suffered from various symptoms which would be cured through the surgery; as a result of their persistent conditions, the two younger children also had ear infections and the oldest child had missed several days of school.[77] The court disagreed with father’s argument that medical treatment could not be ordered over his objection without a showing of a serious threat to the children’s lives or a showing of absolute certainty the surgeries would be successful.[78] Instead, the court held, their statutory duty was to provide ordinary medical care even in less dire circumstances.[79] In another dentistry case, the court held mother was neglecting her children by not allowing dental treatment for cavities and “fractured teeth” because she believed that “God or Jesus” would wait on her children.[80] The court explained that while she has the right to hold such a opinion, as a mother she is required to scrutinize care for her children when a physiological impairment threatens their health.[81]
e. Mental and Emotional Treatments
The state is not tiny to ensuring just the physical health of a child against his parents’ wishes, but his mental and emotional health as well. Courts have intervened and found parents to be neglectful for not supplying colossal “guidance” to their child if the child suffers from mental or emotional “disturbances” and the parent is on notice of his condition.[82] Further, courts can order children into institutional psychiatric treatment against their parents’ consent when psychiatrists or other professions are of the opinion that the child has a psychiatric disorder, is potentially dangerous, or needs intensive treatment if there is a showing of neglect or dependency.[83]
As with other types of medical treatment, a parent’s decision to place their child in a mental facility is reviewable by the spot, and just because a child disagrees with a parent does not mean he will not be placed in the facility.[84] For the state to intervene in the parent’s decision there must be some certain and convincing evidence of abuse, neglect, or dependency.[85] The key case in this area[86] stands not only for these presumptions but also serves as an insight as to how the Court views the issue of minor’s mental capacity in medical treatment decisions.
VII. Age of the Child
A child may have different religious beliefs than his parents, and the minor’s values should be considered by the court. However, in most cases before the courts the minor’s religious beliefs were aligned with his parents, so courts do not have to distinguish between them. What if the child’s beliefs were different from his parents’ and the treatment he sought was not life-saving? If the treatment was elective or cosmetic, the court would likely not have a leg to stand on – there has to be a showing of neglect before the court can take custody of a child. It would be very difficult to argue that a parent was medically neglectful because he refuses to let his teenage daughter undergo plastic surgery or have botox. Depending on the age of the child, the court may analyze the case under the mature minor doctrine.
a. Consideration of a Mature Minor
The majority of the children in the cases we have looked at up to this point have concerned infants or young children. Clearly, babies and elementary school children’s opinions, both about the medical treatment and about their religious convictions, will not be considered by the court. Instead, the court appoints a guardian ad litem to advocate for their best interests. However, it makes little sense to have the magic age of 18 be the point at which someone’s opinion has weight in the courts.
The consideration of a “mature minor” is most commonly seen in abortion cases,[87] but some states have mature minor statutes to give minors the authority to consent to medical treatments.[88] This doctrine, clearly stated, stands for the idea that some minors are capable of making their own medical decisions and should be allowed to do so; these mature minors, like adults, understand the risks, possible complications, and prognosis of the treatment they are choosing to undergo or refusing. The focus is on the capacity of the minor to fully appreciate the consequences of his decision.
Some scholars argue that adolescents should be considered as a separate moral category. For example, under site law minors in Virginia are deemed to be adults for the purposes of consenting to various health care services such as detection of venereal diseases, disbursement of birth control, pregnancy testing, treatment for substance abuse, and the release of their medical records as related to the any of those conditions.[89] The goal of this and other similar statutes is not to recognize minor’s ability to make medical decisions without parental control, but instead to encourage them to seek the treatment they might not if they had to inform their parents.
A seminal case in the consideration of a mature minor doctrine, In re E.G., involved a 17-year old who objected to a blood transfusion, but because (on appeal) she was considered a old-fashioned minor she was allowed to do so.[90] In this case, the court first adjudicated the minor to be medically neglected, and for several weeks she received blood transfusions. However, the court then took a second sight at the case following several transfusions which her doctors said made her more coherent. At that time the youth testified that she had been studying her faith for several years, truly believed that the transfusions were corrupt and fully understood the consequences of her view. The court noted that a child’s decision will only be upheld if she presents distinct and convincing evidence that she possess the maturity to get such a decision and understand the consequences.[91] The court relied on the Supreme Court’s decision in abortion cases involving minors and concluded that although those cases had not extended past reproductive issues, the change was inevitable.[92] Also, the court distinguished that the state had a sliding scale regarding criminal culpability, which should also be used in this type of case.[93]
The minor’s religious beliefs should be considered, but the court should reserve the right to overrule the minor’s judgment if they feel his decision is not sincere, fully researched and informed. At issue in In re J.J,[94] was whether a minor could make a decision based on his religious beliefs to refuse medical treatment for gonorrhea, which if left untreated could cause arthritis, sterility, and possibly death. The court held that while adults have the right and ability to refuse medical treatments on religious grounds, juveniles do not.[95] Here, the minor admitted he was sexually active and knew that the disease from which he suffered was highly communicable.[96] Freedom of religion can be infringed upon to prevent threats to the community, and here the court had an interest in preventing the spread of this sexually transmitted disease.[97] This court made clear that they held as they did because there were risks posed to society as a whole, not just the minor fervent in the suit. This case is an excellent example of how mature minors should be handled. A case by case analysis to eye the sincerity of a minor’s religious beliefs and a clear showing of his ability to formulate an informed decision about his treatment should give a minor the same right to decide his fate as an adult.
Perhaps the Supreme Court is corrupt about how informed, mature, and reasonable minors can be. Rarely (if ever) citing empirical authority, the Court relies on nothing but their instinctual opinion about minor’s ability to reach aged conclusions. Abortion cases are plentiful with language about the ability of minors to make the decision of whether or not to have an abortion. In one such case, the Court stated “Because he may not foresee the consequences of his decision, a minor may not make an enforceable bargain. He may not lawfully work where he pleases, or even encourage exhibitions of constitutionally protected adult motion pictures. Persons below a certain age may not marry without parental consent.”[98] As this paper will later address, some scholars argue that minors are being grossly underestimated.[99]
b. Minors Rights in Abortion Cases
In abortion cases, the Supreme Court has insisted that a there must always be a judicial bypass option available to pregnant women under the age of 18 for situations when the pregnant minor’s parents will not consent to the abortion.[100] The concept behind the judicial bypass is if a minor is mature enough to petition the court to exempt her from the parental consent requirement, then she must be mature enough to make the decision to have the abortion. The same rule was followed in Hodgson v. Minnesota,[101] where the court ruled the requirement of both parents being notified of minor’s decision to have an abortion was not in furtherance of any state interest, was unreasonable and an unconstitutional burden on the minor’s right to have an abortion.[102] The judicial bypass procedure was upheld.[103]
Perhaps the case that most convincingly stands in support for a mature minor rule took place when a 15-year-old was pregnant and wanted to retain her child, but her mother attempted to have her declared a dependent child because she refused to have an abortion.[104] The court disagreed with her mother and issued a protective order to the daughter which disallowed her mother from interfering with her decision to sustain the baby.[105] The language of the court is quite on point here:
Parents may and should play a meaningful role in counseling their children on all matter enthralling their well-being. Moreover, a minor’s decision on whether or not to abort is of such far reaching consequence and sensitivity as to shout out for the understanding counsel of parents who care. And yet, such counsel must originate from the premise that it is the child who has the ultimate right to decide. Children are not chattel of their parents. Rather they are citizens in their enjoy right, endowed with certain fundamental freedoms of which they may not be divested by parental fiat. The legal to give birth is among those freedoms.[106]
Abortion, perhaps even more so than any other medical device, has deep emotional and psychological as well as health considerations involved in the decision process. It is a deeply personal decision, and it should not be left up to someone other than the person carrying the child. The court went on to say, “Inevitably, there comes a point in time when the child’s decision making process reaches fruition, with or without parental input, and a firm choice is made… In deciding to give birth, she has exercised a personal liberty guaranteed to her by the 14th Amendment.”[107]
While favorable to the rights of juveniles, the ancient minor rule is not always followed. The cases that do adopt the doctrine do so according to site law, not constitutional challenges. For example, Georgia does not glance a “weak minor’s” suitable to refuse unwanted medical care.[108] In Novak, the court states that an adult’s right to refuse medical treatment and a minor’s right to consent to an abortion are not the same true to privacy, and the statute allowing adults to refuse medical care does not apply to minors.[109] The court reasons that the exceptions for extinct minors – namely the right to for minors who are married or pregnant to consent to medical care – does not support the mature minor rule but instead shows why people under the age of 18 are not vested with the same honest powers as adults.[110] Also, the court notes the minor did not present any authority under plot or federal law to note the primitive minor rule should be followed.[111] This ruling completely ignores the reality that not all people under 18 are incapable of making their possess reasonable, competent decisions. It is irrational to assume that an 18th birthday brings wisdom that was unattainable the day before.
IX. Cosmetic Treatments for Minors
It is clear that the court will require life saving treatment for a child over his parents’ religious objection in most cases, but when the medical procedure sought can be classified as elective or cosmetic in nature the analysis involves a lower standard of scrutiny. There is no hybrid claim of two fundamental rights which would invoke heightened scrutiny under Smith,[112] and the state does not need to show a compelling interest to override a parent’s decision to refuse plastic surgery to a minor.
In Re Sampson[113] alive to a 15-year-old child who needed surgery and a blood transfusion to improve the appearance of his face and neck which was massively disfigured as the result of a non-fatal disease. His mother objected not to the surgery, but to the transfusion; however, the surgery could not be done without the blood.[114] The court ordered the procedure because the evidence showed the child was frequently absent from school and was several grade levels unhurried in his education. The court relied on Seiferth,[115] where a 14-year-old suffering from harelip and cleft palate required plastic surgery, but his father refused to consent; there the court stated neglect proceedings should not be limited to drastic or mortal circumstances before they can order surgery. In both cases the sought after treatment was not life-saving or urgent in nature, but the courts allowed them to take place because they improved the quality of life for the children involved.
In a factually similar Canadian case, a 20-year-old wanted to have facial marks caused by acne removed from his face, and the court allowed the treatment because he was one month away from the age of majority and the court felt he was capable of understanding the consequences.[116] Interestingly, our neighbor to the North uses a different age at which majority is obtained. Does this not aid to show that age 18 was arbitrarily chosen, and thus, the rule of majority at 18 could be changed or bent when the circumstances permit?
The opinions and religious beliefs of children who truly are “old-fashioned minors” should be given a significant amount of weight regarding medical decisions in the court system. Some minors do not have the same religious convictions as their parents, and should not be forced to forego medical procedures because of their parents’ beliefs. When the treatment or procedure in question is not life-saving or urgent in nature, the child’s understanding should matter even more. The concern of the court is that a child will get a choice that threatens their well-being, health, or safety. If the procedure at issue is cosmetic or elective, one would lift the risks are grand less than other types of medical treatments. Therefore, the court’s main pains is lessened if not gone all together.
Often, the main purpose of cosmetic surgeries is to improve the self-esteem or confidence of the patient. While it is hard to believe any parent would not want that for their child, if a parent did object to the procedure for religious reasons and a mature minor did not allotment those convictions, the child’s wishes should trump. It is, after all, the minor’s body and right to personal autonomy. In all likelihood, a court faced with this issue would simply defer to the inevitable event of the minor’s 18th birthday and tell her she would be able to have the rhinoplasty or breast augmentation done later.
X. Adolescence as a Separate Legal Category
Criminally, juveniles and adults are not even in the same court system. However, on occasion a juvenile will be tried as an adult for his/her crime and is subject to the same penalties as someone over the age of majority. The original trend seems to be blurring a once clear line. If exceptions can be made in that context, why not in the context of medical decisions? We call juveniles “delinquents” not “criminals,” and usually they cannot be sentenced to capital punishment. In Thompson v. Oklahoma,[117] the Supreme Court said this was because of the inexperience, lack of education and lesser intelligence of minors, which earn them less capable of understanding the consequences of their actions than adults. Consequently, if a state does allow for capital punishment of minors, generally the starting age is 16, not 18.[118]
Exemplified by Thompson and many other cases, scholars argue that the court does not base its conclusion of lowered capacity on psychological studies or other evidence.[119] Instead, the Court makes generalizations about minors’ ability to make judgments and decisions. People develop at different rates, and children seem to mature sooner today than ever before. The Court should not be turned off by empirical research but instead embrace it and use it to better the judicial system.
The field of child psychology has come a long way since the juvenile court system was created, and many of these cases were decided. Most judges sat in Psychology 101 their freshman year of college. Many scholars cite to Jean Piaget, famed psychologist who dwelling out children’s phases of development.[120] Piaget established four phases of development from birth through adolescence and concluded, in normal development, reasoning abilities have formed by age 15. In the final state, we learn how to consider hypothetical situations, how to reason our way to a decision by weighing all the possibilities, and rationalize the costs and benefits of our choices. One study matched religious development to cognitive development and reached a similar conclusion as Piaget – that by age 14-15 children have entered the final stage of development and are capable of abstract religious thinking.[121] The American Psychological Association agrees with this presumption writing “it is now generally accepted that by mid-adolescence (14-15) the great majority of adolescents do not differ from adults in their capacities to understand and reason about medical and psychological treatment alternatives, or in their abilities to comprehend and mediate risks and benefits regarding treatment alternatives.”[122]
While at age 15 most people acquire the necessary cognitive skills to make a decision, many of us are unable to do so even throughout adulthood. Recognize pressure, selfish desires, need for social acceptance and a host of other factors can weigh heavily on our decision making processes – no different than for juveniles. Some literature points out that minors are more susceptible to peer pressure than adults,[123] but to say that is true of all minors discounts those who are musty enough to be above the influence. It is these minors, with deeply held beliefs, that the old-fashioned minor doctrine is meant to assist.
Citizens of the United States, regardless of their age, have the proper to free exercise of their religion. Prince, Yoder, and Reynolds all note that while parents have a fundamental right to make decisions regarding the upbringing and care of their children that right will be subject to governmental restrictions when it opposes public policy or the best interests of the child. When the decisions being made are regarding medical care for a child, the place can intervene in a parent’s choice with a showing of abuse, neglect, or dependency. Upon such showing and depending on the nature of the treatment sought, the court can order a medical procedure be performed on a child regardless of the parent’s religious beliefs. If a treatment option has a high risk of failure, is highly invasive, toxic or life threatening in itself, the court will be more likely to respect the parents’ decision than if the treatment was routine, painless and had a high probability of success.
When the minor reaches adolescence, the situation gets more complicated. Regardless of what the Court has held or implied in the past, normally developing teenagers are aptly situated to make mature, considerate, and informed decisions regarding their medical care. Empirical evidence and studies have shown that by age 15 the brain has completed all the stages of development, and people at that age are just as capable of making decisions as people past the magic age of 18. Just as abortion cases have allowed juveniles to have a judicial bypass to exempt them from parental consent requirements, other medical procedures should allow for increased participation and input from the patient in courtroom discussions.
Our knowledge of child development and human psychology has evolved, and first-rate studies have shown that we have underestimated the abilities of our young people. If someone shows a determined understanding of the consequences of their decision, we refer to that as capacity and it should not matter what year they were born. The time has come for a new legal category – the mature minor. I recognize that this may be a slippery slope – if these minors can make their own medical decisions, should they be allowed to vote? Drive a car? Drink alcohol? The analysis on whether one should be considered a “mature minor” must be made on a case by case basis with special attention paid to the particular minor’s ability to understand the nature of the treatment, the options, and the prognosis. Mature minor’s religious beliefs should be taken seriously by the court and their opinions should be given substantial weight in the proceeding.
[1]In re Willmann, 493 N.E.2d 1380 (Ohio Ct. App. 1986); Matter of Hamilton, 657 S.W.2d 425 (Tenn. Ct. App. 1983); People ex rel. Wallace v. Labrenz, 104 N.E.2d 769 (Ill. 1952); Muhlenberg Hospital v. Patterson, 320 A.2d 518 (N.J. 1974).
[2]Prince v. Massachusetts, 321 U.S. 158 (1944).
[3]Id. at 173.
[4]Id. at 170.
[5]Wisconsin v. Yoder, 406 U.S. 205 (1972).
[6]Id. at 215.
[7]Employment Division v. Smith, 494 U.S. 872 (1990).
[8]Id.
[9]Yoder, 406 U.S. at 233.
[10]Reynolds v. U.S., 98 U.S. 145 (1878).
[11]Id. at 166.
[12]Yoder, 406 U.S. 205, 245-246.
[13]In re Gault, 387 U.S. 1 (1967).
[14]Id. at 230.
[15] U.S. Const. amend. I.
[16]Cantwell v. Connecticut, 310 US 296, 303 (1940).
[17]Id. at 303.
[18]Genesis 9:4; Acts 15:19-20; Leviticus 17:14; I Chronicles 11:16-19; II Samuel 23:15-17.
[19]Newmark v. Williams, 588 A.2d 1108, 1110 n.2 (Del. 1991).
[20]Id.
[21]Id.
[22]In re Tuttendario, 21 Pa. Dist. 561 (Pa. D. 1912).
[23]Id. at 561.
[24]Id. at 561.
[25] Black’s Law Dictionary, http://www.lawschool.westlaw.com/search/blackslaw (last visited Nov. 16, 2006).
[26]People ex rel. Wallace v. Labrenz, 104 N.E.2d 769, 773 (Ill. 1952).
[27]Matter of Hofbauer, 419 N.Y.S.2d 936, 940 (N.Y. 1979).
[28]Id. at 941.
[29] In re Phillip B., 92 Cal.App.3d 796, 802 (Cal. App. 1979); In re Eric B., 189 Cal.App.3d 996, 1005 (Cal. App. 1987).
[30] Children’s Healthcare is a Legal Duty, Inc., Religious Exemptions from Health Care for Children, (2003) athttp://www.childrenshealthcare.org (last visited Nov. 15, 2006).
[31] Conn.Gen Stat. Ann. § 17a-104 (West 2006).
[32] Massachusetts Citizens for Children, Death by Religious Exemption, (1992) athttp://www.masskids.org/dbre/dbre_8.html (last visit Nov. 15, 2006).
[33] 42 U.S.C.A. § 5101 (1996).
[34] Massachusetts Citizens for Children, supra notice 28.
[35]Id.
[36]Id.
[37] 45 CFR § 1340.14 (1983).
[38]State v. Miskimens,490 N.E.2d 931 (Ohio Ct. App. 1984).
[39] Ohio Rev. Code § 2919.22 (2006).
[40] The Entanglement Prong of the 1st Amendment seeks to ensure that government and religion do not intrude into the precincts of one another. (See Lemon, 403 U.S. 602, 614 (1971)). An entanglement would be point to where the government is required to supervise or inspect any type of religious affairs or practice.
[41]Miskimens, 490 N.E.2d 931, 934-935 (1984).
[42]Id. at 935.
[43]Id. at 936.
[44]Cantwell v. Connecticut, 310 US 296 (1940).
[45]Lemon, 403 U.S. 602.
[46]Cutter v. Wilkinson, 544 U.S. 709 (2005).
[47]Id.
[48]Id. at 722.
[49]In re Gault, 387 U.S. at 1.
[50]West Virginia Space Board of Education v. Barnette, 319 U.S. 624 (1943); Tinker v. Des Moines School District, 383 U.S. 503 (1969).
[51]Parham v. J. R..,442 U.S. 584 (1979).
[52]People ex rel. Wallace v. Labrenz, 104 N.E.2d 769 (Ill. 1952); Muhlenberg Hospital v. Patterson, 320 A.2d 518 (N.J. 1974); Matter of Hamilton, 657 S.W.2d 425 (Tenn. Ct. App. 1983); In re Willmann, 493 N.E.2d 1380 (Ohio Ct. App. 1986).
[53]In re Willmann, 493 N.E.2d 1380 (Ohio Ct. App. 1986).
[54]Id. at 1389.
[55]Matter of Hamilton, 657 S.W.2d at 425.
[56]Id. at 427.
[57]Newmark v Williams, 588 A.2d at 1108.
[58]Id. at 1114.
[59]Id. at 1117.
[60]Id. at 1110.
[61]In re Hudson, 126 P.2d 765 (Wash. 1942).
[62]People ex rel. Wallace v. Labrenz, 104 N.E.2d at 773.
[63]Muhlenberg Hospital v. Patterson, 320 A.2d at 518.
[64]Id.
[65]Matter of McCauley, 565 N.E.2d 411 (Mass. 1991).
[66]Id.
[67]In re Green, 292 A.2d 387 (Pa. 1972).
[68]Id. at 392.
[69]People In Interest of E., 614 P.2d 873 (Colo. 1980).
[70]Id. at 875.
[71]Matter of Jensen, 633 P.2d 1302 (Or. 1981).
[72]Id. at 1303.
[73]Id. at 1303.
[74]Id. at 1306.
[75]Id. at 1306.
[76]In Re Karwath, 199 N.W.2d 147 (Iowa 1972).
[77]Id. at 149.
[78]Id. at 150.
[79]Id. at 149.
[80]In Re S, 380 N.Y.S.2d 620 (N.Y.Fam.Ct. 1976).
[81]Id. at 622.
[82]In re Carstairs, 115 N.Y.S.2d 314 (Dom. Rel. Ct. 1952); U.S. v. S.A., 129 F.3d 995 (Minn. 1997).
[83]In re Weintraub, 71 A.2d 823 (Pa. 1950); Parham,442 U.S. 584 at 604.
[84]Parham at 604.
[85]Id.
[86]Id.
[87]Planned Parenthood v. Casey, 60 F.3d 816 (3d Cir. 1995); Belloti v. Baird, 443 U.S. 622 (1979); Planned Parenthood of Central Missouri v. Danforth, 428 U.S. 52, 95 (1976).
[88]Ala. Code § 22-8A-4 (Supp. 2001); Ga. Code Ann. § 31- 32-3(a) (2001); W. Va. Code § 16-30-4(a) (2001); N.D. Cent. Code § 23-06.4-03 (2002); N.H. Rev. Stat. Ann. § 137-H:3 (1996).
[89] Virginia Code § 54.1-2969 (Lexis 2002).
[90]In re E.G., 549 N.E.2d 322 (Ill. 1989)
[91]Id. at 327.
[92] Jonathan F. Will, My God My Choice: The Conventional Minor Doctrine and Adolescent Refusal of Life-Saving or Sustaining Medical Treatment Based upon Religious Beliefs, 22 J. Contemp. Health L. & Pol’y 233, 272 (2006); In re E.G., 515 N.E.2d 322 at 325.
[93]Inre E.G., 549 N.E.2d 322 at 326.
[94]In reJ. J., 582 N.E.2d 1138 (Ohio Ct. App. 1990).
[95]Id. at 1140.
[96]Id. at 1141.
[97]Id. at 1141.
[98]Planned Parenthood of Central Missouri v. Danforth, 428 U.S. at 95 (1976)(Stevens, J., concurring in part and dissenting in part).
[99] Elizabeth Scott, Legal Construction of Adolescence, 29 Hofstra L. Rev. 547, 555-57 (2000); Gary B. Melton, Toward “Personhood” for Adolescents, 38 Am. Psychologist 99 (1983).
[100]Planned Parenthood v. Casey, 60 F.3d at 816; Belloti v. Baird, 443 U.S. at 622.
[101]Hodgson v. Minnesota, 497 U.S. 417 (1990).
[102]Id. at 418.
[103]Id. at 420.
[104]In re Mary P, 111 Misc.2d 532 (N.Y.Fam.Ct. 1981).
[105]Id. at 536.
[106]Id. at 535.
[107]Id. at 534.
[108]Novak v. Cobb County-Kennestone Hosp. Authority, 849 F.Supp. 1559 (N.D.Ga. 1994).
[109]Id. at 1576.
[110]Id.
[111]Id.
[112]Smith, 494 U.S. 872.
[113]In Re Sampson, 278 N.E.2d 918 (N.Y. 1972).
[114]Id.
[115]In the Matter of Seiferth, 127 N.E.2d 820 (N.Y. 1955).
[116]Johnson v. Wellesley Hospital, 17 D.L.R.3d 139 (Ontario Sup. Ct. 1970).
[117]Thompson v. Oklahoma, 487 U.S. 815, 835 (1988).
[118] Larry Cunningham, A Question of Capacity: Towards a Comprehensive and Consistent Vision of Children and their Status under the Law, 10 U.C. Davis J. Juvenile L. & Pol’y 275 (2006).
[119] Elizabeth Scott, Legal Construction of Adolescence, 29 Hofstra L. Rev. 547, 555-57 (2000); Gary B. Melton, Toward “Personhood” for Adolescents, 38 Am. Psychologist 99 (January 1983).
[120] See Cunningham, supra designate 114 at 282; Melton, supra note 115 at 100.
[121] Examine Jonathan F. Will, supra note 80 (citing Ronald Goldman, Religious Thinking from Childhood to Adolescence (Western Printing Services Exiguous 1965)(1964)).
[122]Hartigan v. Zbaraz, 484 U.S. 171 (1987)(No. 85- 673), 1987 WL 880965 (Brief for American Psychological Association as Amici Curiae Supporting Appellees).
[123]Id.
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