Children's Health in a Legal Framework

The Future of Children, 2015, Forthcoming

Columbia Public Law Research Paper No. 14-418

33 Pages Posted: 2 Oct 2014

See all articles by Elizabeth S. Scott

Elizabeth S. Scott

Columbia University - Law School

Clare Huntington

Fordham University School of Law

Date Written: September 1, 2014

Abstract

The interdisciplinary periodical Future of Children has dedicated an issue to children’s health policy. This contribution to the issue maps the legal landscape influencing policy choices. The authors demonstrate that in the U.S. legal system, parents have robust rights, grounded in the Constitution, to make decisions concerning their children’s health and medical treatment. Following from its commitment to parental rights, the system typically assumes the interests of parents and children are aligned, even when that assumption seems questionable. Thus, for example, parents who would limit their children’s access to health care on the basis of the parents’ religious belief have considerable latitude to do so, unless the child’s life is imminently threatened. There are some exceptions to this legal regime. Adolescents have the right to obtain some health services independently; in these contexts, social welfare needs such as pregnancy prevention trump parental rights. Minors also have access to abortion (although this right is more restricted than for adults). Moreover, the state has the power to intervene when parents place their children’s health at risk through abuse or neglect.

A hallmark feature of the legal regime based on parental rights is that the state has no affirmative obligation to help parents care for their children’s health needs. This libertarian framing of the family-state relationship has profound implications for the development of public policy. To the extent the state provides support for families and children, it is doing so as a matter of policy choice (as with Medicaid and the Children’s Health Insurance Program) and not enforceable legal obligation. The importance of family autonomy thus results in a weak conception of shared responsibility for children. The framework also means that the state often takes a reactive approach to child wellbeing, intervening primarily when families have broken down or parents have seriously defaulted on their duties. Appreciation of the legal framework underscores the need to develop political support for any initiative to improve health services for children. Often, as this article shows, the state intervenes to promote children’s health only in response to compelling social welfare needs such as crime or disease prevention, or to crises in which parents abuse their children or fail to provide adequate care.

Keywords: health, health policy, children, family

Suggested Citation

Scott, Elizabeth S. and Huntington, Clare, Children's Health in a Legal Framework (September 1, 2014). The Future of Children, 2015, Forthcoming; Columbia Public Law Research Paper No. 14-418. Available at SSRN: https://ssrn.com/abstract=2503685

Elizabeth S. Scott (Contact Author)

Columbia University - Law School ( email )

435 West 116th Street
New York, NY 10025
United States
(212) 854-9758 (Phone)
(212) 854-7946 (Fax)

Clare Huntington

Fordham University School of Law ( email )

150 West 62nd Street
New York, NY 10023
United States
212-636-6832 (Phone)

Register to save articles to
your library

Register

Paper statistics

Downloads
179
Abstract Views
1,368
rank
167,939
PlumX Metrics