Medical Decision Making by and on Behalf of Adolescents: Reconsidering First Principles

Abstract

The school nurse cannot give your teenage daughter an aspirin for her headache without your permission, but that same daughter can get an abortion without even informing you. Or can she? The obligations on medical personnel providing care to adolescents are famously indeterminate.

Two common-law presumptions have long lurked in the background, but, far from elucidating matters, those presumptions have contributed to the state of confusion. The first presumption is that, absent any special rule, children lack the legal authority to consent to medical treatment on their own. A parallel and corresponding presumption is that parents have a legal entitlement to make medical decisions for their minor children.

This article questions whether those propositions have any force today — if, in fact, they ever did. Both as a descriptive matter and as a constitutional matter, these statements are highly questionable, particularly when adolescents are involved.

This article therefore makes the case that neither presumed truth about the American legal landscape is valid, at least with respect to older minors. It also suggests that the ultimate failure of the law to provide solid and meaningful background presumptions in the domain of minors’ medical decision-making rights has done much to aggravate, if not create, the muddle of regulation that confounds health care providers.

The constitutional doctrine pertaining to minors’ rights to bodily integrity, moreover, both highlights and founders upon the extreme lack of clarity with respect to the relevant default rules regarding older minors’ ability to consent to medical care. Increased judicial attention directed toward developing the constitutional doctrine surrounding minors‘ rights to bodily integrity would therefore be beneficial both to health care providers and to minors.

Keywords: medical treatment, informed consent, children, adolescents, minors, parental consent, bodily integrity, health care regulation, constitutional law, state-mandated treatment, abortion, reproductive rights

JEL Classification: K19