Naomi Cahn, University of Virginia School of Law, Maxine Eichner, University of North Carolina School of Law, and Mary E. Ziegler, University of California, Davis School of Law, have posted "For Their Benefit": The Lost History of Parental Consent and Minors' Rights:
The principle of parental involvement in children’s lives has achieved surprising consensus across blue and red states. Meanwhile, the goal of children’s wellbeing has become a touchstone for legal reform efforts across a variety of domains. The apparent embrace of both the goal of children’s wellbeing and parents’ right to be involved conceal deeply contested questions about when, why, and how the law should require parental consent of minors’ decisions.
Drawing on archival material housed at six different universities, we make sense of present-day conflicts about parental approval by revisiting the long legal history of parental involvement, from early common-law cases to struggles of the civil rights era. We show that contrary to widespread assumptions, from the very beginning, strict requirements of parental involvement were compartmentalized to particular areas and inconsistently applied in others. Further, what is often portrayed as a relatively recent, evolving consensus in favor of using children’s wellbeing rather than parental involvement as the guiding principle in the regulation of children is instead a continuation of a longstanding tradition. At common law, we demonstrate, in determining whether a minor could bind themselves to an agreement without parental involvement, courts often asked whether an agreement was beneficial to the child’s interests (and therefore either voidable or binding, depending on the judge or jurisdiction) or prejudicial to the child’s interests and therefore void.
Building on a rich literature on child wellbeing, we then use lessons from this history to construct a framework for determining when legislators and judges today should require parental involvement and when minors should be allowed to make their own decisions. We begin with a presumption, drawn from the lessons of common law, that parental involvement should be required for most types of important decisions. Yet decision-makers should impose exceptions to the general rule of parental involvement when: (1) parental involvement requirements impede access to care or resources critical to minors’ wellbeing; or (2) the decision at issue is integral to minors’ autonomy over their bodies and their futures. We consider how this framework would address four current controversies relating to minors: (1) abortion and abortion-related travel; (2) gender-affirming medical care; (3) access to social media; and (4) mental-health treatment. Our framework, we hope, will be faithful to the basic principles that animated the common law and better able to illuminate when parental involvement is beneficial—and when it may have harmful consequences for the minors it is supposed to protect.
--Dan Ernst
