The Treatment of Minors Under the Law.

A Historical Overview

Under common law, children were originally viewed as the property of their parents, having few, if any, independent rights. (6) Over time, the law evolved, and it now views the parent-child relationship as a relationship based on reciprocal rights and responsibilities. Parents are generally responsible for their child's financial support, health, education and upbringing. In return, they are vested with the custody and control of their child, including the right to make decisions for the child that will help shape his or her values. (7) In general, parents are legally responsible for their child until the child reaches the age of majority--the age at which a person is considered an adult under the law. This age limit is established by each state separately.

States, as well as parents, impose certain restrictions on persons under the age of majority--or minors -- on the presumption that before reaching majority, young people lack the experience, perspective and judgment to make fully informed decisions that take into account both the short- and the long-term consequences of their actions. (8) Restrictions on the behavior of minors vary from state to state, but all states bar them from voting, from serving on juries, from executing a will and from purchasing alcoholic beverages. (9)

States have traditionally required that a parent give consent before a minor receives medical treatment, (10) although there have long been exceptions to this rule. Many states, for example, authorize doctors to treat any minor involved in a medical emergency without first obtaining parental permission. (11) In addition, states often consider a minor who is married, serving in the armed forces or living apart from his or her parents and self-supporting to be "emancipated"; in such cases, a minor has the right to act on his or her own behalf, including the right to consent to medical treatment. (12) Furthermore, juvenile and family courts are authorized to make health care decisions for a minor who has been abused or neglected by his or her parents. (13)

Historically, the constitutional rights of minors have been subject to more stringent limitations than have the rights of adults. (14) But in a landmark 1967 decision relating to juvenile delinquency proceedings, the Supreme Court, concluding that "constitutional rights do not mature and come into being magically only when one attains the state-defined age of majority," held that the Bill of Rights and the Fourteenth Amendment's guarantee against the deprivation of liberty without due process protect minors, as well as adults. (15) Building on that opinion, the Court subsequently ruled that minors have a constitutional right to privacy that includes the right to obtain contraceptives (16) and the right to decide to terminate an unwanted pregnancy. (17)

Expansion of Minors' Decision-Making Powers

Spurred in part by these court decisions, a growing trend has emerged over the last 20-30 years to give teenagers wider authority to make decisions for themselves. The age of majority, for example, has been lowered from 21 to 18 in the District of Columbia and in all states except Alabama, Nebraska and Wyoming (where it is 19), and Mississippi (where it remains 21). (18) This move followed the ratification in 1971 of the Twenty sixth Amendment to the Constitution, which gave 18-year-olds the right to vote in federal elections.

In the area of health care, recognition has been growing that age alone may not indicate a person's ability to make sound decisions. Some states, for example, have adopted the so-called mature minor rule. Under this rule, a minor who is sufficiently intelligent and mature to understand the nature and consequences of a proposed treatment can obtain (or consent to) medical treatment without consulting his or her parents or securing their permission. (19) In addition, some states have passed laws that specifically authorize a teenager to consent to (or obtain) medical treatment for health problems related to sexual activity, substance abuse and mental health. (20) In doing so, states have acknowledged that a teenager who is pregnant or infected with an STD, a teenager who abuses drugs or alcohol, and a teenager who suffers from emotional or psychological problems may avoid seeking necessary medical attention, in a timely fashion, if he or she must first tell a parent. In situations like these, the states have co ncluded, it is more important for a young person to have access to confidential medical services than it is to require that parents be informed of their child's condition. (21)

Minors, Abortion and the Supreme Court

The trend toward giving minors greater freedom to make their own decisions about health care has generated little controversy and has aroused little organized opposition. That is, except in one area--the abortion decision. The question of whether states should require parental consent or notification when a minor seeks an abortion has been the subject of much protracted debate and of hundreds of legislative proposals. It has also been the focus of numerous legal challenges, some of which have reached the Supreme Court. In a line of decisions beginning in 1976, the Court has sought to define the limits of the states' power to require parental consent or notification of a minor's abortion decision.

The Court has ruled that a state may not give parents an absolute veto over their minor daughter's decision to terminate her pregnancy. (22) It has also held, however, that a state may require a teenager to obtain the consent of one or both parents if it provides her with an alternative to having to consult or inform her parents. Under this alternative procedure--commonly referred to as a judicial bypass--a young woman may obtain authorization for an abortion from a judge (or administrative agency) without letting her parents know what she is doing. (23) The Supreme Court has ruled that when a minor chooses to exercise the judicial-bypass option, the judge must authorize the abortion if he or she determines that the teenager is mature enough to make the decision by herself or, if the young girl is deemed immature, that an abortion is in her best interests. The bypass proceedings must be confidential and, at least in theory, expeditious, and the minor must have an opportunity to appeal if her petition is denied. (24)

The Court has also held that a state may require a doctor to notify one (25) or both (26) parents of their daughter's plans to terminate a pregnancy. This requirement may be imposed even if the parents are divorced or were never married, and even if one of the parents has never known or supported the young woman. So far, the Court has specifically declined to rule on whether a state must provide a judicial-bypass procedure if it requires the notification of only one parent. (27) However, the Court has held that a state must do so if it requires a doctor to inform both parents. (28)

Despite these rulings, mandatory parental involvement remains a highly charged issue. Proponents of parental involvement laws maintain that parents have a right to know about and play a role in major decisions facing their children. (29) They argue that since parental consent is often needed before a minor can go on a school trip, get her ears pierced or have her eyes examined, (30) parental involvement should certainly be mandatory for abortion, which, they contend, can have serious physical and psychological consequences. (31) Opponents of mandatory parental involvement, on the other hand, cite the importance of access to confidential services if a minor is to seek timely medical attention. (32) They further assert that abortion is a safe procedure, (33) and that it rarely causes serious psychological problems. (34) Mandatory parental consent or notification, they argue, could actually endanger the health of a teenager who, rather than tell her parents, will delay having an abortion until late in her pregnancy, when the risks increase. (35)

References

(6.) U. S. Congress, Office of Technology Assessment (OTA), Adolescent Health, Vol. III: Crosscutting Issues in the Delivery of Health and Related Services, U.S. Government Printing Office (GPO), Washington, D.C., 1991, p. 125, reference 9.

(7.) T. Klosk, Fried, Frank, Harris, Shriver & Jacobson, "The Impact of Motherhood on Minors' Legal Capacity," memorandum prepared for the AGI, Dec. 28, 1990, p.5; and M. Guggenheim, New York University School of Law, personal communication to 0.8. Nordberg, AGI, Sept. 3, 1991.

(8.) OTA, 1991, op. cit. (see reference 6), p. 123; and T. Klosk, 1990, op. cit. (see reference 7), p. 1.

(9.) M. Guggenheim and A. Sussman, The Rights of Young People, Bantam, New York, 1985.

(10.) OTA, 1991, op. cit. (see reference 6), p. 124.

(11.) Ibid., p. 127.

(12.) Ibid., p. 126.

(13.) Ibid.

(14.) T. Klosk, 1990, op. cit. (see reference 7), p.2.

(15.) In re Gault, 387 U.S. 1 (1967).

(16.) Carey v. Population Services International, 431 U.S. 678 (1977).

(17.) Planned Parenthood of Central Missouri v. Dan-forth, 428 U.S. 52 (1976); and Bellotti v. Baird, 443 U.S. 622 (1979).

(18.) AGI telephone survey of state attorneys general, Aug.--Sept. 1991.

(19.) M. Guggenheim and A. Sussman, 1985, op. cit. (see reference 9), pp. 199-200; and OTA, 1991, op. cit. (see reference 6), p. 127.

(20.) OTA, 1991, op. cit. (see reference 6), pp. 127-134; J. Gittler, M. Quigley-Rick and M. J. Saks, Adolescent Health Care Decision Making: The Law and Public Policy, Carnegie Council on Adolescent Development, Washington, D.C., 1990; and J. M. Morrissey, A. D. Hofmann and J. C. Thrope, Consent and Confidentiality in the Health Care of Children and Adolescents: A Legal Guide, Free Press, New York, 1986.

(21.) M.D. Greenberger and K. Connor, "Parental Notice and Consent for Abortion: Out of Step with Family Law Principles and Policies," Family Planning Perspectives, 23:31, 1991.

(22.) Planned Parenthood of Central Missouri v. Dan-forth, 1976, op. cit. (see reference 17).

(23.) Bellotti v. Baird, 1979, op. cit. (see reference 17); City of Akron v. Akron Center for Reproductive Health, 462 U.S. 416 (1983); and Planned Parenthood Ass'n of Kansas City, Mo., Inc. v. Ashcroft, 462 U. S. 476 (1983).

(24.) Ibid.

(25.) Ohio v. Akron Center for Reproductive Health, 110 S. Ct. 2972 (1990).

(26.) Hodgson v. Minnesota, 110 5. Ct. 2926 (1990).

(27.) Ohio v. Akron Center for Reproductive Health, 1990, op. cit. (see reference 25).

(28.) Hodgson v. Minnesota, 1990, op. cit. (see reference 26).

(29.) A. Philburn, "The Case for Parental Involvement," National Right to Life News, May 7, 1991, p. 13; and J. Rovner, "Family Planning Is Catalyst to a Simmering Feud," Congressional Quarterly, Apr. 6, 1991, p. 864.

(30.) J. Rovner, 1991, op. cit. (see reference 29); and T. Troy, "Pennsylvania Parental Consent Goes on Trial July 30," United Press International wire service story, undated (week of June 25, 1990).

(31.) A. Philburn, 1991, op. cit. (see reference 29); and--, "Parental Involvement Protects Teenagers from Physical Injury," National Right to Life News, May 21, 1991, p.5.

(32.) J. Benshoof et al., brief for petitioners in Hodgson v. Minnesota and Minnesota v. Hodgson, U. S. Supreme Court, Oct. 1989 Term, Case Nos. 88-1125 and 88-1309, pp. 13-16; and M.D. Greenberger and K. Connor, 1991, op. cit. (see reference 21).

(33.) J. Benshoof et al., 1989, op. cit. (see reference 32), pp. 11-13.

(34.) J. O'Keeffe and J. M. Jones, 1990, op. cit. (see reference 2).

(35.) J. Benshoof et al., 1989, op. cit. (see reference 32).

RELATED ARTICLE: WHAT IS INFORMED CONSENT?

The legal doctrine of in formed consent recognizes the right of a patient to make decisions about the medical treatment he or she will receive.

It further recognizes that to allow a patient to make an informed choice as to how to proceed, physicians or other health professionals are required to give the patient sufficient information about the diagnosis and the proposed treatment--including the potential benefits and risks and alternative approaches.

A health care provider who fails to supply this information can be sued for malpractice if a patient suffers complications that he or she was not told could occur, or if a patient learns too late about an alternative approach that the patient might have preferred.

Under the common law, a minor was deemed legally incompetent to give informed consent to medical treatment. A physician therefore could not treat a minor without first obtaining the consent of the minor's parent.

As the AGI review shows, however, states have concluded that many teenagers are capable of making an informed decision on many issues, including health care.

Reflecting this judgment, states have passed laws specifically authorizing a minor to consent to certain types of health care and, in some cases, even to general medical care in nonemergency situations.

For any patient, of course, a doctor or health professional obtaining consent to treatment must be satisfied that the individual is sufficiently intelligent and mature to understand the significance of the information he or she is receiving and consents to the treatment freely and without coercion or pressure from family members, friends or members of the medical profession.

The American College of Obstetricians and Gynecologists (ACOG) discussed the information that should be provided to women faced with an unwanted pregnancy in its Standards for Obstetric-Gynecologic Services, published in 1985. ACOG specified that "the physician should counsel the patient about her options of continuing the pregnancy to term and keeping the infant, continuing the pregnancy to term and offering the infant for legal adoption or aborting the pregnancy" (p. 57).

WHAT IS "THE LAW"?

The term "the law" refers to many things: statutes, court decisions, common law, opinions promulgated by attorneys general and regulations issued by other executive agencies.

Statutes passed by state legislatures and Congress are probably the most common understanding of what is meant by the term. However, state and federal courts also make law when they interpret statutes, and when they interpret the federal and state constitutions. The body of law that has developed through court decisions is often referred to as case law.

When there is no statutory or case law to draw on, courts will look to the common law--the body of legal principles from England upon which the American legal system is based.

In addition, attorneys general are often asked to interpret the meaning or effect of a law or regulation, and these opinions have the force of law. So do regulations issued by the executive branch of government to implement a statute.

Traditionally, state legislatures and courts have decided family law issues, including the decision making powers of minors.