Family conflicts: The role of religion in refusing medical treatment for minors

Hastings Law Journal

Volumn 58, Issue 3, 2007, Pages 643-669

  Chen, Jennifer E ^a,b  

^a UNIVERSITY OF CALIFORNIA   (United States)

^b UNIVERSITY OF CALIFORNIA   (United States)

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[No Author keywords available]

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EID: 34047243246     PISSN: 00178322     EISSN: None     Source Type: Journal    
DOI: None     Document Type: Article

References (164)

1. For example, for certain crimes children can be legally tried as adults. For a history of juvenile justice, see Mark R. Fondacaro et al., Reconceptualizing Due Process in Juvenile Justice: Contributions from Law and Social Science, 57 HASTINGS L.J. 955, 958-67 (2006).
2. See infra Part II.
3. See infra Part II.A.
4. See Meyer v. Nebraska, 262 U.S. 390, 399 (1923) (holding that the Fourteenth Amendment protections include the right to "establish a home and bring up children"). In Meyer, the Court overturned a state law prohibiting teaching in any language other than English, using substantive due process to find that the statute violated the parents' rights to make decisions for their children. Id. at 399-401; accord ERWIN CHEMERINSKY, CONSTITUTIONAL LAW: PRINCIPLES AND POLICIES 654 (1997) (discussing the Meyer case).
5. See, e.g., Troxel v. Granville, 530 U.S. 57, 67-68 (2000) (holding that statute allowing state judge to determine when visitation by grandparents is appropriate, regardless of what the parent believes is in the child's best interest, violates the due process clause); Parham v. J.R., 442 U.S. 584. 694 (1979) (explaining that parents must maintain a dominant role in deciding whether children should be committed to mental health facilities); Wisconsin v. Yoder, 406 U.S. 205, 213-14 (1972) (stating that our society places a high value on "parental direction of the religious upbringing and education of their children"); Prince v. Massachusetts, 321 U.S. 158, 166 (1944) ("It is cardinal with us that the custody, care and nurture of the child reside first in the parents."); Pierce v. Soc'y of Sisters, 268 U.S. 510, 534-535 (1925) (acknowledging that parents have a liberty "to direct the upbringing and education of children under their control"); Meyer, 262 U.S. at 399-401 (overturning the application of a statute prohibiting the teaching of languages other than English because it infringed on fundamental rights).
6. Troxel, 530 U.S. at 66. The Troxel court declared the parents' liberty interest in raising their children to be "perhaps the oldest of the fundamental liberty interests recognized by this Court." Id. at 65.
7. Lois A. Weithorn, Envisioning Second-Order Change in America's Responses to Troubled and Troublesome Youth, 33 HOFSTRA L. REV. 1305, 1394 (2005).
8. Id.
9. Id.; see, e.g., Parham, 442 U.S. at 602 ("The law's concept of the family rests on a presumption that parents possess what a child lacks in maturity, experience, and capacity for judgment required for making life's difficult decisions.").
10. Weithorn, supra note 7, at 1394; see, e.g., In re Rena, 705 N.E.2d 1155, 1157 (Mass. App. Ct. 1999) (laying out the criteria for determining the best interests of a child in Massachusetts).
11. Weithorn, supra note 7, at 1394; see, e.g., Troxel, 530 U.S. at 68 ("There is a presumption that fit parents act in best interests of their children." (citing Parham, 442 U.S. at 602)); see also Jennifer L. Rosato, Let's Get Real: Quilting a Principled Approach to Adolescent Empowerment in Health Care Decision-Making, 51 DEPAUL L. REV. 769, 771-772 (2002) [hereinafter Rosato, Adolescent Empowerment];
12. Jennifer L. Rosato, Using Bioethics Discourse to Determine When Parents Should Make Health Care Decisions for Their Children: Is Deference Justified?, 73 TEMP. L. REV. 1, 7 (2000) [hereinafter Rosato, Bioethics].
13. CHEMERINSKY, supra note 4, at 644 (strict scrutiny is defined as whether the state's action is narrowly tailored to serve a compelling interest); see also Troxel, 530 U.S. at 69-70 (discussing the lower court's error in interfering in the parent's fundamental rights to make decisions for the child because it failed to give proper weight to the parent's determination and lacked a compelling interest to determine that visitation rights of grandparents are in the child's best interests). However, states do not automatically win simply because they can point to a compelling interest. See Wisconsin v. Yoder, 406 U.S. 205, 214 (1972). The state must also show that its interest will be adversely affected. Id. In the absence of such a showing, the state will not be allowed to impinge on the parents' fundamental rights and interests. Id. For example, in Yoder, the state's purpose in compulsory education was to prepare children to be productive members of society. Id. at 213. However, the Court found convincing evidence to support the Amish claim that forgoing one or two years of school would not impair the child physically or mentally, nor result in the child's inability to mature into a self-supporting individual, nor in any other way materially detract from the welfare of society. Id. at 234. Based on this finding, the court deferred to the parents' decision because there was no provable harm to the state's interest. Id. at 236.
14. See Yoder, 406 U.S. at 213-14; Prince v. Massachusetts, 321 U.S. 158, 166 (1944).
15. Prince, 321 U.S. at 166.
16. Weithorn, supra note 7, at 1402-03.
17. Prince, 321 U.S. at 165. The Court declared that it is in "the interests of society to protect the welfare of children, and the state's assertion of authority to that end." Id. The Court justified the authority by reasoning that "[i]t is the interest of youth itself, and of the whole community, that children be both safeguarded from abuses and given opportunities for growth into free and independent well-developed men and citizens." Id.; accord LAINIE FREEDMAN ROSS, CHILDREN, FAMILIES, AND HEALTHCARE DECISION MAKING 135 (1998) ("When parents make decisions which are contrary to their child's basic interests, the state as parens patriae, has the right to intervene."). For a discussion on the state's authority to regulate children and families based on the state's dual parens patriae and police power interests, see Weithorn, supra note 7, at 1401-07.
18. See also Susan D. Hawkins, Note, Protecting the Rights and Interests of Competent Minors in Litigated Medical Treatment Disputes, 64 FORDHAM L. REV. 2075, 2084-86 (1996) (discussing the state's role as parens patriae and state interests that support intervention into the parent-child relationship).
19. Prince, 321 U.S. at 168.
20. Id. at 166. In Prince, the state interest was manifested in a statute that prohibited any girl under the age of eighteen from selling or offering to sell "any newspapers, magazines, periodicals or any other articles of merchandise . . . in any street or public place." Id. at 160-61. Sarah Prince, a guardian to her nine-year-old niece, Betty, was convicted of violating these state labor laws when the two were found preaching and selling religious literature on the sidewalk during the evening. Id. at 159-60, 162. Mrs. Prince and Betty claimed that they were exercising their freedom of religion rights under the First Amendment, testifying that they were both ordained ministers "exercising [their] God-given right and [their] constitutional right to preach the gospel." Id. at 161-62. However, the Court upheld the statute and Mrs. Prince's conviction, finding that the potential harm from the "crippling effects of child employment" outweighed claims of family privacy and parental autonomy. Id. at 168-69.
21. Id. at 159-60,162.
22. Id. at 162.
23. Id. at 165.
24. Id. at 162.
25. Wisconsin v. Yoder, 406 U.S. 205, 230-32 (1972). Chief Justice Burger makes it clear that the majority opinion does not consider the potential competing interests of the children. Id.
26. Id. at 213-14.
27. In Prince, the state prosecuted the child's guardian for child labor law violations stemming from an incident where a child distributed religious literature on the street. Thus, the Court focused on the conflicting interests between the free exercise rights of the guardian against the state's interests, rather than directly considering the interests of the child. Prince, 321 U.S. at 159, 166. During a dispute over child visitation rights, the Court focused on a mother's fundamental liberty interests rather than the children's associational rights because the dispute was between the children's grandparents and the mother. Troxel v. Granville, 530 U.S. 57, 67-68 (2000). In overturning the ruling, the Court pointed out the error of the lower court, which "gave no special weight at all to [the mother's] determination of her daughters' best interests." Id. at 69. In determining whether Amish children could stop attending high school early, in violation of the state's compulsory education laws, the court upheld the parents' traditional interests with respect to the religious upbringing of their children because it was the parents who were prosecuted by the state. Yoder, 406 U.S. at 231-32 ("The children are not parties to this litigation."). In another case the Court struck down criminal prosecution under a state law that forbade the instruction of any language other than English prior to eighth grade, finding that this provision infringed on a parent's fundamental right to instruct their children in their native tongue. Meyer v. Nebraska, 262 U.S. 390, 399-401 (1923). The Court also found that legislation that forced children to attend public schools unreasonably interfered with the liberty of parents and guardians to educate their children. Pierce v. Soc'y of Sisters, 268 U.S. 510, 534-35 (1925).
28. See Prince, 321 U.S. at 162-63. Both the adult and the child had similar interests, arguing that they acted within their free exercise rights when they distributed religious literature on the street. Yoder, 406 U.S. at 230-31 (explaining that the holding deals only with the parents' rights to free exercise and that relevant testimony showed that one child's wishes corresponded with their parents); Pierce, 268 U.S. at 534-35 (focusing on the right of parents to direct the upbringing and education of their children); Meyer, 262 U.S. at 400 (framing the issue as a parent's right to engage a teacher to instruct their children without examining the individual child's wishes).
29. Yoder, 406 U.S. at 241-42 (Douglas, J., dissenting).
30. Id. ("And, if an Amish child desires to attend high school, and is mature enough to have that desire respected, the State may well be able to override the parents' religiously motivated objections."). While Justice Douglas is not clear on the age or criteria to determine the proper stage of maturity, the adolescents in Yoder were ages fourteen and fifteen. Id. at 207.
31. Troxel, 530 U.S. at 88 (Stevens, J., dissenting).
32. See supra Part II.
33. Justice Stevens acknowledged in Troxel that children may have interests separate from their parents and that courts should consider these interests. See supra note 29 and accompanying text. In the context of parents having educational decisions over adolescent children, Justice Douglas also pointed out the importance of giving the child an opportunity to be heard because her desires may conflict with those of her parents, noting that "[i]t is the future of the student, not the future of the parents, that is imperiled by today's decision. If a parent keeps his child out of school beyond the grade school . . . . [t]he child may decide that that is the preferred course, or he may rebel." Yoder, 406 U.S. at 245 (Douglas, J., dissenting).
34. See Parham v. J.R., 442 U.S. 584, 587, 600 (1979).
35. Id.
36. Id. at 587-88.
37. Id. at 600.
38. Id.
39. Id.
40. Id. at 602-03.
41. Id. at 603-04 (stating that complaints and disagreements over a hospitalization decision are not enough to diminish a parent's authority to decide what is best for a child). The Court found that although the state had a significant interest in not imposing "unnecessary procedural obstacles that may discourage the mentally ill or their families from seeking needed psychiatric assistance," there was enough risk inherent in the parental decision to institutionalize a child that a procedural inquiry was necessary by a "neutral factfinder to determine whether the statutory requirements for admission [were] satisfied." Id. at 605-06. In this way, the Court was able to balance all three interests, concluding that the child's due process rights were not violated by placing control of the psychiatric commitment decisions in the hands of the parents and hospital admitting staff. Id. at 605-07.
42. Id. at 604.
43. 443 U.S. 622, 639-42 (1979).
44. Id. at 642 ("The need to preserve the constitutional right and the unique nature of the abortion decision, especially when made by a minor, requires a [s]tate to act with particular sensitivity when it legislates to foster parental involvement in this matter."). The Court further held that a "[s]tate could not lawfully authorize an absolute parental veto over the decision of a minor to terminate her pregnancy." Id. at 639 (citing Planned Parenthood of Cent. Mo. v. Danforth, 428 U.S. 52, 74 (1976))).
45. Bellotti, 443 U.S. at 634-39. While the Court acknowledged the separate rights of minors, it stopped short of granting them the same degree of constitutional rights as adults. Id. The Court justified its finding that children's rights are to be less protected from state interference, writing that "three reasons justify[ ] the conclusion that the constitutional rights of children cannot be equated with those of adults: the peculiar vulnerability of children; their inability to make critical decisions in an informed, mature manner; and the importance of the parental role in child rearing." Id. at 634.
46. Id. at 635 (citation omitted).
47. Id. at 635-36. There are several references in the opinion to previous decisions where the Court upheld statutes that limited a minors' First Amendment rights. See, e.g., Ginsberg v. New York, 390 U.S. 629, 639-40 (1968) (upholding a criminal conviction for selling sexually-oriented magazines to a minor under the age of seventeen, when such a conviction could not have stood had the sale been to an adult); Prince v. Massachusetts, 321 U.S. 158, 159, 171 (1944) (upholding an adult's conviction for violating a child labor statute, when the adult guardian had allowed the minor to distribute religious literature on the street after hours).
48. Bellotti, 443 U.S. at 637; accord Pierce v. Soc'y of Sisters, 268 U.S. 510, 535 (1925) ("The child is not the mere creature of the state; those who nurture him and direct his destiny have the right, coupled with the high duty, to recognize and prepare him for additional obligations.").
49. Bellotti, 443 U.S. at 647. The result of balancing these interests was the court's creation of an intermediate step for the minor to gain autonomy over her abortion decision. Id. The court provided that every minor should have an opportunity to go directly to court, without first consulting or notifying her parents, where she had a chance to persuade the court that she is mature and well enough informed to make intelligently the abortion decision on her own. Id. If the court were convinced then it would authorize her to act without parental notice or consent. Id.
50. See Bellotti, 443 U.S. at 647; Parham v. J.R., 442 U.S. 584, 600 (1979).
51. See Troxel v. Granville, 530 U.S. 57, 88 (2000) (Stevens, J., dissenting).
52. Compare Bellotti, 443 U.S. at 642, with Parham, 442 U.S. at 600.
53. 497 U.S. 261, 277-78 (1990).
54. See generally 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. JUV. L. & POL'Y 275 (2006) (discussing how the law measures the competence of minors).
55. Melinda T. Derish & Kathleen Vanden Heuvel, Mature Minors Should Have the Right to Refuse Life-Sustaining Medical Treatment, 28 J.L. MED. & ETHICS 109, 112 (2000).
56. See Derish & Heuvel, supra note 53, at 112; Kimberly M. Mutcherson, Whose Body Is It Anyway? An Updated Model of Healthcare Decision-Making Rights for Adolescents, 14 CORNELL J.L. & PUB. POL'Y 251, 259 (2005) ("For the most part . . . parents and caretakers are the only parties legally allowed to provide consent to healthcare for a person under the age of eighteen. . . . [S]tate laws rest on a presumption that minors are incompetent and lack the ability to make cogent, mature, and binding decisions about their own well being."); Hawkins, supra note 16, at 2075 ("In the United States, minors are generally considered legally incompetent to consent to or refuse most forms of medical treatment. Parents generally have the sole authority to decide whether their children will receive such treatment, and a physician may not treat a minor without the consent of the minor's parent or guardian." (citations omitted)).
57. See discussion supra Part II.B.
58. See Weithorn, supra note 7, at 1323-26 (providing an overview of the child welfare system); see also People v. Rippberger, 283 Cal. Rptr. 111, 122-23 (Ct. App. 1991) (holding that the failure to provide medical care constitutes a misdemeanor).
59. Weithorn, supra note 7, at 1323-26.
60. See, e.g., Lundman v. McKown, 530 N.W.2d 807, 818-19 (Minn. Ct. App. 1995) (discussing the balancing of a private actor's free-exercise interests against the state's compelling interest to protect the welfare of children).
61. See infra Part II.A.
62. Now called the Department of Health and Human Services. See U.S. Dep't of Health & Human Servs., History of HHS, http://answers.hhs.gov/ (select "About HHS" category; then follow "History of HHS" hyperlink) (last visited Jan. 4, 2007).
63. 42 U.S.C. §§ 5101-5107 (2000).
64. 45 C.F.R. § 1340.1-2 (1974) ("[A] parent or guardian legitimately practicing his religious beliefs who thereby does not provide specified medical treatment for a child, for that reason alone shall not be considered a negligent parent or guardian."); accord H.R. REP. NO. 93-685, at 2767 (1973), reprinted in 1974 U.S.C.C.A.N. 2763, 2767 ("First, the Committee recognized that 'negligent treatment' is difficult to define, but it is not the intent of the Committee that a parent or guardian legitimately practicing his religious beliefs who thereby does not provide specific medical treatment for a child is for that reason alone considered to be a negligent parent. To clarify further, no parent or guardian who in good faith is providing to a child treatment solely by spiritual means - such as prayer - according to the tenets and practices of a recognized church through a duly accredited practitioner shall for that reason alone be considered to have neglected the child.").
65. Id.; accord Janna C. Merrick, Spiritual Healing, Sick Kids and the Law: Inequities in the American Healthcare System, 29 AM. J.L. & MED. 269, n.40 (2003).
66. This condition was removed in 1983 by the federal government. See infra note 66.
67. Newmark v. Williams, 588 A.2d 1108, 1119-21 (Del. 1991) (holding that parents were not in neglect for refusing treatment for a child diagnosed with an advanced stage of deadly cancer and potential success of treatment was only 40%); In re J.J., 582 N.E.2d 1138, 1141 (Ohio Ct. App. 1990) ("[T]he state may compel a juvenile . . . to submit to medical treatment for a contagious and potentially life-threatening disease.").
68. 45 C.F.R. § 1340.2(d)(3)(ii) (1983) ("Nothing in this Part should be construed as requiring or prohibiting a finding of negligent treatment or maltreatment when a parent practicing his or her religious beliefs does not, for that reason alone, provide medical treatment for a child; provided, however, that if such a finding is prohibited, the prohibition shall not limit the administrative or judicial authority of the State to insure that medical services are provided to the child when his health requires it." (emphasis added)).
69. See id. § 1340.2 (1983).
70. See ALASKA STAT. §§ 11.51.120(b), 47.17.020(d) (2005); ALA. CODE § 13A-13-6 (2006); CAL. PENAL CODE §§ 270, 11165.2(b) (West 2006); CAL. WELF. & INST. CODE §§ 300, 16509.1, 18950.5 (West 2006); COLO. REV. STAT. ANN. § 19-3-103(1) (West 2006); D.C. CODE § 16-2301 (9)(B); GA. CODE ANN. § 15-11-2(8)(D) (2006); IDAHO CODE ANN. § 18-401, -1501 (2006); 325 ILL. COMP. STAT. ANN. 5/3(g) (2006); IND. CODE ANN. § 35-46-1-5 (LexisNexis 2006); KAN. STAT. ANN. § 21-3608 (2006); ME. REV. STAT. ANN. tit. 17-A, § 557 (2006); id. tit. 22, § 4010 (2005); MINN. STAT. ANN. §§ 609.378, 626.556 (West 2006); N.H. REV. STAT. ANN. § 169-C:3(XIX)(c) (2006); OKLA. STAT. ANN. tit. 21, §§ 852, 852.1 (West 2006); S.D. CODIFIED LAWS §§ 25-7-16, 26-8A-23 (2006); TENN. CODE ANN. § 71-6-102 (2005); UTAH CODE ANN. § 76-5-109, -110 (2005); VA. CODE ANN. §§ 16.1-228, 18.2-371.1(C)
71. Congress has essentially left this up to the states. See 42 U.S.C.A. § 5106i(b) (West 2006) ("Except with respect to the withholding of medically indicated treatments from disabled infants with life threatening conditions, case by case determinations concerning the exercise of the authority of this subsection shall be within the sole discretion of the State.").
72. See, e.g., Walker v. Superior Court, 763 P.2d 852, 870 (Cal. 1988) (upholding the conviction of the parent of a girl who died from meningitis even though they were exercising legitimate and sincere Christian Scientist beliefs); People v. Pierson, 68 N.E. 243, 246-47 (N.Y. 1903) (finding a parent belonging to the Christian Catholic Church of Chicago guilty for infant daughter's death from pneumonia); Commonwealth v. Barnhart, 497 A.2d 616, 624-25 (Pa. Super. Ct. 1985) (finding members of Faith Tabernacle Church liable for the death of their son from a tumor).
73. Zaven T. Saroyan, Spiritual Healing and the Free Exercise Clause: An Argument for the Use of Strict Scrutiny, 12 B.U. PUB. INT. L.J. 363. 365-66 (2003). Saroyan uses an illustration of two children with meningitis who both die. Id. One child was treated solely through spiritual healing and the other with conventional medicine. Id. at 366. According to Saroyan, in many states, the parents who relied on spiritual healing would be prosecuted for manslaughter whereas the doctor of the other child would be free from criminal charges. Id. Zaroyan argues that when the state charges only one party, despite identical results, then "the state is implicitly asserting that one method is correct, and one is not." Id.; accord United States v. Ballard, 322 U.S. 78, 85-88 (1944) (explaining that the truth or falsity of religious beliefs is not for the courts to judge because an attempt at such a determination is a "forbidden domain" based on the First Amendment).
74. Rita Swan, On Statutes Depriving a Class of Children of Rights to Medical Care: Can this Discrimination Be Litigated?, 2 QUINNIPIAC HEALTH L.J. 73, 92 (1998). Swan argues that religious exemptions create two classes of citizenship: (1) children who have access to medical care, and (2) children in "faith-healing sects" who have no access to treatment unless a state agency becomes aware of their needs. Id. at 95.
75. See Misty Boyer, Comment, Death by Religious Exemption: Parents Refusing Their Child Necessary Medical Treatment Based Upon Their Own Religious Beliefs - Should States Endorse a System that Denies Necessary Medical Treatment to Children?, 4 WHITTIER J. CHILD & FAM. ADVOC. 147, 152, 158-60 (2004).
76. 588 A.2d 1108, 1109 (Del. 1991).
77. Id. at 1119-21.
78. Id.
79. Id. at 1118.
80. Id. The court also looked at other factors, but focused on the low probability of success. Id. at 1114, 1117-19.
81. In re D.L.E., 645 P.2d 271, 276 (Colo. 1982).
82. Id. at 272 (quoting COLO. REV. STAT. § 19-1-114 (1973)). The Colorado statute provided: No child who in lieu of medical treatment is under treatment solely by spiritual means through prayer in accordance with a recognized method of religious healing shall, for that reason alone, be considered to have been neglected or dependent within the purview of this article. However, the religious rights of a parent, guardian, or legal custodian shall not limit the access of a child to medical care in a life-threatening situation or when the condition will result in serious disability. COLO. REV. STAT. § 19-3-103.
83. D.L.E., 645 P.2d at 272-73.
84. Id.
85. Id. at 274-75.
86. In re J. J., 582 N.E.2d 1138.1141 (Ohio Ct. App. 1990).
87. Id. at 1139-40.
88. Mutcherson, supra note 54, at 259.
89. Id. at 264. But see Rosato, Adolescent Empowerment, supra note 11, at 773-74. Professor Rosato argues that despite the protection of undue burden, states are still able to limit a girl's abortion rights significantly without violating the Constitution. Id.
90. Mutcherson, supra note 54, at 269.
91. Id. at 268-69.
92. Id. at 266.
93. Planned Parenthood of Cent. Mo. v. Danforth, 428 U.S. 52, 74 (1976).
94. 410 U.S. 113, 163-64 (1973). Viability is defined as the point where a fetus is potentially able to live outside its mother's womb with or without artificial aid. Id. The time could be as early as twenty-four weeks but is usually placed at around twenty-eight weeks. Id. at 160.
95. Planned Parenthood v. Casey, 505 U.S. 833, 876-78 (1992) (defining "undue burden" as "a state regulation [which] has the purpose or effect of placing a substantial obstacle in the path of a woman seeking an abortion of a nonviable fetus").
96. 428 U.S. at 74 (declaring that "[constitutional rights do not mature and come into being magically only when one attains the state-defined age of majority").
97. Id. at 75. The provision at issue stated that "[n]o abortion shall be performed prior to the end of the first twelve weeks of pregnancy except . . . (4) [w]ith the written consent of one parent or person in loco parentis of the woman if the woman is unmarried and under the age of eighteen years, unless the abortion is certified by a licensed physician as necessary in order to preserve the life of the mother." Id. at 85 (quoting 18 PA. CONS. STATE. § 3205 (1990)).
98. Id. at 75; id. at 90-91 (Stewart & Powell, JJ. concurring).
99. Carey v. Population Servs. Int'l, 431 U.S. 678, 693 (1977).
100. See Mutcherson, supra note 54, at 263-64 n.39.
101. See, e.g., Bellotti v. Baird, 443 U.S. 622, 643 (1979) ("[I]f the State decides to require a pregnant minor to obtain one or both parents' consent to an abortion, it also must provide an alternative procedure whereby authorization for the abortion can be obtained.").
102. Mutcherson, supra note 54, at 264.
103. Id. at 264-66.
104. See Tomas J. Silber, Ethical Considerations in Caring for Adolescents, 10 PEDIATRIC ANNALS 408, 409 (1981) ("[M]any adolescents who need access to medical care in order to better protect their health would never consult a doctor if they knew he would require parental consent prior to treatment."). The justification is therefore based more on practical and ethical concerns, rather than in particular beliefs about adolescent capacity for decision-making. Mutcherson, supra note 54, at 260-71.
105. Martin T. Harvey, Adolescent Competency and the Refusal of Medical Treatment, 13 HEALTH MATRIX 297, 300 (2003) (referring to the "utilitarian interest of preventing suicide, curbing illicit drug and alcohol abuse and halting the spread of venereal disease" as justification for adolescent consent to treatment); Rosato, Adolescent Empowerment, supra note 11, at 778.
106. Rosato, Adolescent Empowerment, supra note n, at 789-90.
107. Id.
108. Minors can seek a court order when living independently from their parents. See, e.g., ALA. CODE §§ 26-13-1, -2, -4, -6 (1992); CAL. FAM. CODE § 7002 (West 2004); 750 III. COMP. STAT. ANN. 30/3-1, /3-2, /4, /s (West 1999); MINN. STAT. ANN. § 144.341 (West 2005); R.I. GEN. LAWS § 14-1-59.1 (LexisNexis 2002). Minors can also be emancipated based on their status. See, e.g., ALA. CODE § 22-8-4 (LexisNexis 1997) (providing that minor must be fourteen or older and must be a high school graduate, married or pregnant); ALASKA STAT. § 25.20.025 (2004); ARK. CODE ANN. § 20-9-602 (2005); CAL. FAM. CODE §§ 6911, 6922 (providing that minor must be living apart from parents and must manage his or her own financial affairs); FLA. STAT. ANN. §§ 743.064, .0645 (West 2005); IDAHO CODE §§ 39-4302, -4303 (2002). Minors can consent to medical procedures. See, e.g., 410 III. COMP. STAT. ANN. 210/1 (West 2005) (providing that minor must be married, a parent themselves, or have parental consent); IND. CODE ANN. § 16-36-1-3(A) (LexisNexis 1993) (providing that minor must be emancipated, married, divorced, in the military, authorized by statute, or fourteen or older and living away from parents); KAN. STAT. ANN. § 38-123B (2000) (requiring minor to be sixteen or older); KY. REV. STAT. ANN. § 214.185 (West 2005); MD. CODE ANN., HEALTH-GEN. § 20- 102 (LexisNexis 2005); MISS. CODE ANN. § 41-41-3 (West 1999) (providing that minor must have intelligence to understand procedure and its consequences); MONT. CODE ANN. § 41-1-402 (2005) (providing that minor must be married, pregnant, a high school graduate, emancipated, living apart from parents, or financially self-supporting if the health care is for minor's child); NEV. REV. STAT. ANN. § 129.030 (LexisNexis 2004) (providing that minor must be living apart from parents for four months, married or been married, a mother, in danger of a serious health hazard, or able to understand the nature, purpose, and need for medical care and voluntarily request the care); N.J. STAT. ANN. § 9.17A-4 (West 2002) (providing that a healthcare provider may inform parents at its discretion); OR. REV. STAT. § 109.640, .650 (2005) (providing that minor must be fifteen or older and the healthcare provider may involve the parents); 28 PA. CONS. STAT. ANN. § 27.97 (West 2003); R.I. GEN. LAWS § 23-4.6-1 (2001) (providing that minor must be sixteen or older, married, or a parent); S.C. CODE ANN. § 20-7-280 (1985); TENN. CODE ANN. § 63-6-229 (2004); VA. CODE ANN. § 54.1-2969(A)-(B) (2005) (requiring a court order to authorize a medical procedure); WYO. STAT. ANN. § 14-1-101(B) (2005) (providing that minor must be legally married, on active duty in the military, treatment need must be urgent, and parents or guardian cannot be located, or minor must be living apart from parents and managing her own affairs).
109. See infra note in and accompanying text.
110. See Mutcherson, supra note 54, at 278-79.
111. Id.
112. Id. at 279-80.
113. Id. at 257; see In re Rena, 705 N.E.2d 1155, 1157 n.3 (Mass. App. Ct. 1999). The court recognized that the lack of a bright-line rule results in inconsistencies in how minors are treated under the law. Id. For instance, seventeen-year-olds in criminal proceedings are deemed capable of making all decisions relative to the proceeding. Id. Emancipated minors and minors who are married, divorced or widowed can consent to medical treatment. Id. However, there are no exceptions that allow a minor to purchase alcohol or tobacco, nor allowing them to vote or serve on juries. Id.
114. Mutcherson, supra note 54 at 257.
115. Id. at 269 (quoting Michelle Oberman, Minor Rights and Wrongs, 24 J.L. MED. & ETHICS 127, 127 (1996)); accord Rosato, Adolescent Empowerment, supra note 11, at 777-78.
116. Andrew Newman, Adolescent Consent to Routine Medical and Surgical Treatment: A Proposal to Simplify the Law of Teenage Medical Decision-Making, 22 J. LEGAL MED. 501, 506 (2001) (stating that maturity operates as a "code word," allowing minors to consent to their own treatment where society deems it appropriate and denies access if there is the real possibility of long-term consequences).
117. Id. at 507.
118. Rosato, Adolescent Empowerment, supra note 11, at 778.
119. Hawkins, supra note 16, at 2129.
120. Harvey, supra note 103, at 315 tbl.1.
121. Id. at 309.
122. David N. Kessler, Comment, Praying for Relief from Parens Patriae: Should a Child be Allowed to Refuse Life-Saving Medical Treatment on Religious Grounds?, 2 NOTRE DAME J.L. ETHICS & PUB. POL'Y 673, 692 (1985-1987).
123. Rhonda Gay Hartman, AIDS and Adolescents, 7 J. HEALTH CARE L. & POL'Y 280, 303 (2004).
124. Id.
125. Id.
126. See Reynolds v. United States, 98 U.S. 145, 166-67 (1878) (holding that despite their religious beliefs and convictions, defendants were not exempt from being convicted under the state's criminal anti-polygamy statute).
127. 321 U.S. 158, 170 (1944).
128. Id.
129. Id.
130. Id.
131. See, e.g., Santa Fe Sch. Dist. v. Doe, 530 U.S. 290 (2000); Lee v. Weisman, 505 U.S. 577 (1992).
132. See, e.g., Bd. of Educ. v. Mergens, 496 U.S. 226, 250 (1990) ("[Secondary school students are mature enough and are likely to understand that a school does not endorse or support student speech that it merely permits on a nondiscriminatory basis.").
133. See, e.g., Good News Club v. Milford Central Sch., 533 U.S. 98, 115 (2001) ("[T]o the extent we consider whether the community would feel coercive pressure to engage in the Club's activities . . . the relevant community would be the parents, not the elementary school children.").
134. See, e.g., Wisconsin v. Yoder, 406 U.S. 205, 205 (1972).
135. Id. at 242 (Douglas, J., dissenting) ("And if an Amish child desires to attend high school, and is mature enough to have that desire respected, the State may well be able to override the parents' religiously motivated objections.").
136. ROGER J.R. LEVESQUE, NOT BY FAITH ALONE: RELIGION, LAW, AND ADOLESCENCE 3 (2002).
137. Id.
138. Id. This included activities such as praying alone, attending church or synagogue, frequently reading scriptures, or being involved with religiously affiliated youth groups. Id.
139. Id.
140. See Pascal Boyer & Sheila Walker, Intuitive Ontology and
141. Wisconsin v. Yoder, 406 U.S. 205, 243 (1972).
142. See id. at 244.
143. Emily Buss, What Does Frieda Yoder Believe?, 2 U. PA. J. CONST. L. 53, 53 (1999) ("While I share Douglas's view that the Yoder decision is deficient in its account of children's rights, I think Douglas's cure is worse than the disease.");
144. accord Matt Steinberg, Note, Free Exercise of Religion: The Conflict Between a Parent's Rights and a Minor Child's Right in Determining the Religion of the Child, 34 U. LOUISVILLE J. FAM. L. 219, 234 (1995) (arguing that a mature child should be granted the constitutional right to assert an independent religious belief which takes precedence over his or her parents' right to determine the religious upbringing of their children).
145. Saroyan, supra note 71, at 364.
146. Id.
147. Prince v. Massachusetts, 321 U.S. 158, 170 (1944) ("We think that with reference to the public proclaiming of religion, upon the streets and in other similar public places, the power of the state to control the conduct of children reaches beyond the scope of its authority over adults, as is true in the case of other freedoms, and the rightful boundary of its power has not been crossed in this case.").
148. Yoder, 406 U.S. at 231 ("Our holding in no way determines the proper resolution of possible competing interests of parents, children, and the [s]tate.").
149. Bellotti v. Baird, 443 U.S. 622, 648 (1979).
150. Id.
151. See Newmark v. Williams, 588 A.2d 1108, 1108 (Del. 1991).
152. Id. at 1119-21.
153. See, e.g., id.
154. Hartman, supra note 121.
155. Planned Parenthood of Cent. Mo. v. Danforth, 428 U.S. 52, 74 (1976); accord supra note 94 and accompanying text.
156. Wisconsin v. Yoder, 406 U.S. 205, 241-42 (Douglas, J., dissenting).
157. Harvey, supra note 103, at 316 .
158. Id.
159. Id. Harvey creates a table designating three levels of therapeutic benefit: (1) High therapeutic benefit means the treatment is life-saving. Id. The patient's short and long-term prognoses are excellent, with a near-full recovery expected from their illness. Id. (2) Moderate means that the long-term prognosis is problematic, but the treatment will provide the patient with a few additional years of life, although the overall quality of life may have little improvement. Id. (3) Low therapeutic benefit means that both the patient's short- and long-term prognoses are extremely poor. Id.
160. See Newmark v. Williams, 588 A.2d 1108, 1119-21 (Del. 1991).
161. See Cruzan v. Dir., Mo. Dep't of Health, 497 U.S. 261, 261 (1990).
162. 582 N.E.2d 1138, 1141-42 (Ohio Ct. App. 1990).
163. Id. at 1141.
164. See EndocrineWeb.com, Thyroid Cancer, http://www.endocrineweb.com/ thyroidca.html (last visited Jan. 4, 2007).