Parent-Child Privilege as Resistance

Abstract

In the wake of Dobbs v. Jackson Women’s Health Organization, minors face increasing restrictions in accessing reproductive care. The majority of pregnant minors consult their parents before obtaining abortions. Although the parent-child relationship is the first to exist and is often where children turn for guidance, there is no recognized parent-child privilege in the majority of states. These healthcare conversations between parent and child now may hold criminal implications. This Article provides a novel contribution in exploring parent-child communications within the health and reproductive decision-making contexts, arguing privilege is essential to protect minors in accessing care post-Dobbs. In the process, this Article provides a broader theoretical contribution—introducing a new conceptual framework of “privilege as resistance” that envisions evidentiary parent-child privilege as a tool to oppose unjust systems and laws. Privileges are generally disfavored in evidentiary law as impeding the truth; however, this Article critiques the prioritization of the carceral system’s search for truth over the relationship between the parent and child. Parent-child privilege as resistance is informed by a history filled with the separation of families and denial of intimate spaces for marginalized individuals, in particular enslaved individuals and Indigenous people. Building on this context, the Article argues that despite using parents to legitimize judicial processes, the justice system fails to recognize them and shield their communications. Privilege as resistance can enable parents to be an integral part of anti-carceral—and far more successful—approaches to juvenile justice, such as restorative justice models. With this critical lens, the Article imagines a contemporary parent-child privilege that protects a child’s privacy, bodily autonomy, and direction over their lives.