Civil Liberties

Treating Kids

Is Libertarianism for Adults Only?


One of the toughest questions in libertarian thinking is how to treat children. And one of the toughest areas for addressing that question is medical treatment. The case of 12-year-old Parker Jensen from Utah raises this issue once again. Three months ago, Parker was treated for Ewing's sarcoma, a soft tissue cancer that was excised from beneath his tongue. The boy's physicians argue that he needs standard chemotherapy in order to eradicate any microscopic tumors that may have escaped their knives. The doctors believe that without treatment, he has only a 20 percent chance of surviving his cancer, whereas with treatment, he's got a 70 percent chance of survival. However, Parker's parents, Daren and Barbara Jensen, apparently told his doctors that they would not consent to chemotherapy. They pointed out that chemotherapy is not benign since it could stunt Parker's growth and leave him sterile.

Alarmed by what they believed to be the parent's irresponsibility, Parker's doctors contacted Utah's Division of Child and Family Services who took the Jensens to juvenile court. A Utah state statute gives DCFS and prosecutors the authority to intervene in cases where parents refuse to provide possibly life-saving medical treatment to their child. After the court ordered that the boy be put in state custody and treated, the Jensen family fled Utah, saying that they are seeking a second opinion about the need for chemotherapy. Daren Jensen has been found in Idaho and is fighting extradition. The whereabouts of the rest of his family is unknown.

The Jensen case is unusual because typically legal disputes over the medical treatment of children arise in the context of religious beliefs (for example, Christian Scientists and Jehovah's Witnesses who want to forego treatments based on their interpretations of scripture). Some 35 states have religious exemptions for medical treatment.

Such laws do have consequences. Dr. Seth Asser, co-author of an article on medically preventable child fatalities said: "You can't beat, sexually abuse or starve your kids, but the law allows a parent to refuse medical care in favor of magic. This is not just a social phenomenon, but a public-health issue." Asser examined the cases of 172 children who died between 1975 and 1995 after being treated with faith-healing methods. He found that "one hundred forty fatalities were from conditions for which survival rates with medical care would have exceeded 90 percent. Eighteen more had expected survival rates of greater than 50 percent. All but three of the remainder would likely have had some benefit from clinical help." Prayer and medication often work better than prayer alone.

Secular humanist William Harwood makes an interesting point about equality before the law in Free Inquiry: "Since killing children by substituting prayer for necessary medical procedures is a criminal offense for Catholics, that makes it a criminal offense for Christian Scientists and Jehovah's Witnesses as well."

But what about Parker Jensen? Parker's parents' objections to treatment don't appear to be based on any religious objections. They evidently believe that they are doing the best thing medically for their child. If they are seeking a second opinion, the state of Utah should leave them alone. But what if they really do believe that chemotherapy is unnecessary for Parker? The problem is that they could be (and probably are) mistaken.

In On Liberty, John Stuart Mill's propounds his famous harm principle: "The only purpose for which power can be rightfully exercised over any member of a civilized community, against his will, is to prevent harm to others. His own good, either physical or moral, is not a sufficient warrant." I am sure that the prosecutors and social workers in the Parker Jensen case would argue that they are doing precisely that, "preventing harm to others."

Later in On Liberty, Mill offers some thoughtful guidance on the liberty and responsibilities of parents toward their children: "It is in the case of children, that misapplied notions of liberty are a real obstacle to the fulfillment by the State of its duties. One would almost think that a man's children were supposed to be literally, and not metaphorically, a part of himself, so jealous is opinion of the smallest interference of law with his absolute and exclusive control over them; more jealous than of almost any interference with his own freedom of action: so much less do the generality of mankind value liberty than power."

Mill follows this by then advocating universal state mandated education. Surely, Mill would regard proper medical care as even more important to the welfare of a child than education. As much as it pains me to say so, Mill is probably right.