Children’s Health in a Legal Framework

Abstract

Summary The U.S. legal system gives parents the authority and responsibility to make decisions about their children’s health care, and favors parental rights over society’s collective responsibility to provide for children’s welfare. Neither the federal government nor state governments have an affirmative obligation to protect and promote children’s health, nor do children have a right to such protection. In this sense, write Clare Huntington and Elizabeth Scott, policies to promote child health in this country, such as those discussed elsewhere in this issue, are optional. Our libertarian legal framework grants parents broad authority to raise their children as they see fit. Parents can refuse recommended medical treatment for their children, and when they do so, courts respond with deference, particularly when parents’ objections are based on religious beliefs. Parental authority has its limits, however. For example, the government can intervene to protect children’s welfare in cases of medical neglect or when the child’s life is in danger. Additionally, the law sometimes limits parental authority over older children. For example, teenagers may be able to refuse some treatments, such as psychiatric hospitalization, over their parents’ objections. Older minors may also have access to treatments such as family planning services without their parents’ consent. Because the government has no positive obligation to promote children’s health, write Huntington and Scott, children’s health programs are often underfunded and vulnerable to political pressure. Programs are also more likely to focus on responding to family crises than on helping parents raise healthy children. In this environment, policy makers, researchers, and advocates must build political support by showing that investments in children’s health not only benefit children but also promote social welfare.