The Volokh Conspiracy
Mostly law professors | Sometimes contrarian | Often libertarian | Always independent
Parental Rights and Youth Gender Medicine
The Supreme Court just declined this morning to consider this issue, but here's how a noted lower court judge analyzed the matter.
Some people have asked: Why aren't state statutes limiting youth gender medicine treatments violations of parental rights (given that they apply even when the parents ask for the treatment for their children)? The answer, I think, is that the Court hasn't generally recognized a constitutional right to get forbidden medical procedures for oneself, much less a right to get them for one's children. I think Sixth Circuit Judge Jeffrey Sutton correctly summarized the legal rules in L.W. v. Skrmetti (which the Supreme Court just declined to review):
There is a long tradition of permitting state governments to regulate medical treatments for adults and children. So long as a federal statute does not stand in the way and so long as an enumerated constitutional guarantee does not apply, the States may regulate or ban medical technologies they deem unsafe.
Washington v. Glucksberg puts a face on these points…. The Court reasoned that there was no "deeply rooted" tradition of permitting individuals or their doctors to override contrary state medical laws. The right to refuse medical treatment in some settings, it reasoned, cannot be "transmuted" into a right to obtain treatment, even if both involved "personal and profound" decisions….
Abigail Alliance hews to this path. The claimant was a public interest group that maintained that terminally ill patients had a constitutional right to use experimental drugs that the FDA had not yet deemed safe and effective. As these "terminally ill patients and their supporters" saw it, the Constitution gave them the right to use experimental drugs in the face of a grim health prognosis. How, they claimed, could the FDA override the liberty of a patient and doctor to make the cost-benefit analysis of using a drug for themselves given the stark odds of survival the patient already faced? In a thoughtful en banc decision, the D.C. Circuit rejected the claim. The decision invoked our country's long history of regulating drugs and medical treatments, concluding that substantive due process has no role to play….
As in these cases, so in this one, indeed more so in this one. "The state's authority over children's activities is broader than over like actions of adults." A parent's right to make decisions for a child does not sweep more broadly than an adult's right to make decisions for herself….
Parental rights do not alter this conclusion because parents do not have a constitutional right to obtain reasonably banned treatments for their children. Plaintiffs counter that, as parents, they have a substantive due process right "to make decisions concerning the care, custody, and control of their children." At one level of generality, they are right. Parents usually do know what's best for their children and in most matters (where to live, how to live, what to eat, how to learn, when to be exposed to mature subject matter) their decisions govern until the child reaches 18. But becoming a parent does not create a right to reject democratically enacted laws. The key problem is that the claimants overstate the parental right by climbing up the ladder of generality to a perch—in which parents control all drug and other medical treatments for their children—that the case law and our traditions simply do not support. Level of generality is everything in constitutional law, which is why the Court requires "a 'careful description' of the asserted fundamental liberty interest."
So described, no such tradition exists. The government has the power to reasonably limit the use of drugs, as just shown. If that's true for adults, it's assuredly true for their children, as also just shown. This country does not have a custom of permitting parents to obtain banned medical treatments for their children and to override contrary legislative policy judgments in the process. Any other approach would not work. If parents could veto legislative and regulatory policies about drugs and surgeries permitted for children, every such regulation—there must be thousands—would come with a springing easement: It would be good law until one parent in the country opposed it. At that point, either the parent would take charge of the regulation or the courts would. And all of this in an arena—the care of our children—where sound medical policies are indispensable and most in need of responsiveness to the democratic process.
I have argued that there should be a constitutional right to choose certain medical treatments for oneself in narrow circumstances (basically when the person is terminally ill, and seeks a possibly life-saving though unproven treatment). But even if I'm right, that would be quite a narrow right; and in any event, the Abigail Alliance en banc opinion, described in the excerpt above, rejected even that narrow argument.
