Academic journal article The Future of Children

Children's Health in a Legal Framework

Academic journal article The Future of Children

Children's Health in a Legal Framework

Article excerpt


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.


In the United States, parents have primary responsibility for their children's health and have a corresponding right to make health-care decisions for their children. This parental power, however, is not absolute. Under its police power, the state can sometimes override parental rights to promote social welfare: thus, for example, the state can require that children be vaccinated against disease. (1) The state can also protect the welfare of individual children, if, for example, their parents act in ways that threaten their health. Parental rights are qualified in another way as well. Lawmakers have authorized adolescents to make some health-care decisions without involving their parents. Pregnant minors have a limited right to obtain abortions and, in many states, birth control treatment is available to teenagers. (2) Finally, although not a legal exception, in practice the government tends to defer less to the parental rights of low-income parents and to condition public assistance on considerable intrusion into the family. The legal system deals very differently with most families, whose parental rights are strongly protected, and low-income families, whose parental rights may receive little consideration.

In this legal regime based on parental rights, the state has the power to limit parental authority, but it has no affirmative obligation to help parents care for their children's health needs unless it undertakes to do so, as with Medicaid and the Children's Health Insurance Program (CHIP). Moreover, the government's deference to parents may deter the state from providing useful services and support.

An important implication of the United States' approach to children's health and wellbeing is that efforts to improve children's health must be undertaken within the reality of this libertarian framework. The U.S. legal framework is germane to the other articles in this issue because it demonstrates that any policy proposal should be understood as optional from the state's perspective. …

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