“For Their Benefit”: The Lost History of Parental Consent and Minors’ Rights

The principle of parental involvement is nonpartisan: Red and blue states agree that parents should generally be involved in the lives of their children. Meanwhile, the goal of children’s well-being—which may sometimes be at odds with parental involvement—has become a touchstone for legal reform efforts across a variety of domains. The embrace of both the goals of children’s well-being and parents’ rights to be involved in decision-making regarding their children conceals 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 parental involvement was indeed the general rule. Yet, contrary to widespread assumptions, when it came to conflicts between parents’ and their children’s decision-making, from the very beginning, strict requirements of parental involvement were inconsistently applied. Further, what is often portrayed as a relatively recent, evolving consensus in favor of focusing on children’s well-being as the basis for parental involvement is instead a continuation of a longstanding tradition. At common law, we demonstrate that, 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 well-being, 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’ well-being; 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 will better illuminate when parental involvement is beneficial—and when it may have harmful consequences for the minors it is intended to protect.

Table of Contents Show

Introduction

The law and politics of parental involvement in decisions regarding children are downright confusing. Some states have consistently allowed minors to access particular services without their parents’ consent, including mental health counseling[1] and abortions.[2] Some states are even banning parental involvement when minors seek to transition genders socially, as with California’s law preventing school districts from notifying parents about their children’s pronoun or name changes.[3] But this is hardly uniform: Other states are passing laws giving less power to minors and more to parents, such as Florida’s law requiring parental consent for minors to use names other than the child’s legal name.[4] Another example of this is the increasing number of states across the political spectrum requiring parental involvement in teens’ social media usage.[5] And it is not just a question of the relative decision-making power of parents and minors: In some cases, states are stripping decision-making power from both children and parents, as is the case with laws preventing parents from consenting to gender-affirming medical care for their children.[6]

When should parents have the right to be involved in decisions for their children? In an area of the law where the Supreme Court has focused on the lessons of history and tradition, what does history tell us about the scope of parental rights in this context? Drawing on archival material housed at six different universities, we make sense of present-day conflicts regarding parental approval by revisiting the long legal history of parental involvement, from early common law cases to the struggles of the civil rights era.[7] The conventional story is that the history of our nation demonstrates an inflexible rule requiring parental involvement. We show, however, that from the very beginning, strict requirements of parental involvement were compartmentalized in particular areas and inconsistently applied in others. Further, what is often portrayed as a relatively recent, evolving consensus in favor of using child well-being rather than parental involvement as the guiding principle in the regulation of children, turns out to be a continuation of a longstanding tradition.[8] At common law, in determining whether minors could legally bind themselves to an agreement without parental involvement, courts often asked whether the 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.[9]

Our account also explains how the common law’s earlier, more flexible rules provide context for understanding the appropriate role for parents’ involvement in their children’s decisions. We show that, beginning in the 1960s and 1970s, custom (especially in the medical context) often assumed that parental consent was required. This was a practice that a broad and complex coalition began to challenge. We show that this coalition advocated for a coherent set of principles governing parental involvement that presaged those advocated in contemporary child well-being scholarship: (1) Parental involvement was not an end in itself, but a means to the end of safeguarding the welfare of children; (2) determining the welfare of children—and the relationship of parental involvement to their welfare—required tangible evidence, not just shallow invocations about family harmony; (3) parental involvement requirements that did not safeguard children’s well-being based on strong evidence often compounded other systemic inequalities based on race, sex, disability, and class; and (4) minors’ rights mirrored adults’ rights, but could be limited in some circumstances.[10]

We trace not only the history of parental consent in the law and the reemergence of a model based on well-being; we also explore how conservative social movements helped to obscure this history. Starting in the 1970s, conservative social movements began advancing a vision of what we call parental-rights absolutism, which asserted that parents had the right to consent before their children could make certain decisions, regardless of whether that right promoted children’s well-being. It was not the case that the members of these groups—or the many more attracted to their vision—did not care about children’s welfare. Instead, these activists insisted that the central proposition in American law and life when it came to parental involvement was that parents had the authority to make decisions for their children. This exercise of authority—parents assuming control of decision-making for their children—did not depend on whether that exercise of authority benefitted minors. We show that this vision of parental absolutism sometimes pushed to the side an earlier way of thinking of parental involvement and obscured the deep common law commitment to requiring parental involvement only when it advanced children’s well-being.

What does this history teach us about resolving contemporary conflicts concerning the scope of parental involvement in cases where parents and minors might disagree? It demonstrates that we cannot decide contemporary conflicts about parental involvement by falling back on a well-established, legal tradition of parental authority. The common law addressed parental involvement inconsistently, and, at most, it seemed to draw a line between beneficial and harmful decisions, albeit without clearly specifying what qualified as beneficial.[11] We nevertheless take the animating principle of this tradition, the centrality of minor’s welfare, as the starting point for an approach that considers the lessons of both our common law and the social movement struggles over parental involvement in the 1960s and 1970s.

We begin with a presumption that parental involvement should be required for most important decisions—not because we unearth a deeply rooted, ironclad common law requirement, but because parents are usually best positioned to advance their children’s interests.[12] But history instructs that parental involvement should not be required when it would undermine the welfare of minors. In determining which types of decisions should require parental involvement, legislators should recognize what reformers in the 1960s and 1970s understood: Empirical evidence matters and is far more likely to identify what will benefit minors than are superficial assertions regarding parental behavior. Legislators should be particularly attentive to the possibility that mandating parental involvement will disproportionately harm certain groups of minors, based on race, sex, class, or other disadvantaged status.[13] Finally, we draw on the history of legal decision-making regarding children’s welfare to propose that 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’ well-being; or (2) the decision at issue is integral to minors’ autonomy over their bodies and their futures.

We then 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. We show how the application of our principles can clarify decision-making both in the legislative context—where lawmakers may be considering whether to mandate parental involvement in critically important decisions—and in the courts, where judges may be compelled to explain whether the common law requires parental involvement in the absence of any guiding statute. Our framework is faithful to the basic principles that animated the common law and better illuminates when parental involvement is beneficial—and when it may have devastating consequences.

The Article proceeds in three parts. Part I traces the history of early parental involvement requirements when questions about minors’ ability to consent arose. Parental involvement was not originally considered an ironclad rule as others later conceptualized it to be. Instead, parental involvement applied when it was deemed necessary to protect children’s interests. This Part concludes by recounting the popular resistance to blanket requirements of parental consent that emerged in the 1960s and 1970s when the harm caused by these rules became clear. Part II examines the ascendancy of a very different movement advocating for parental rights that emerged toward the end of the twentieth century—one focused on the power and authority of caregivers (rather than the well-being of minors) and explores why parental involvement laws have become a new cultural flashpoint in recent years. Part III lays out a framework for evaluating the many parental involvement laws now in circulation and applies it to several recent flashpoints over parental rights.

I. The Lost History of Parental Involvement

The Supreme Court has long recognized “the family as a unit with broad parental authority over minor children.”[14] As we show, however, history tells a more complicated story in cases in which questions arose regarding minors’ ability to consent, regardless of parental involvement. Part I.A begins with the early common law, which distinguished the general rule of parental decision-making and fathers’ almost absolute right to their children’s labor from minors’ right to make certain decisions without their parents’ approval if the minors were sufficiently mature and the decisions redounded to the minors’ benefit. A century later, when physicians began assuming the existence of a parental consent requirement, they were responding not to a well-established common law tradition but to changing perceptions of childhood and to legal uncertainty that exposed them to liability. In doing so, they transformed a messy common law debate about parental involvement into an absolute requirement of parental approval, although minors remained able to consent in other contexts. Part I.B explores how this thick and increasingly entrenched custom produced serious harms that, in the 1960s and 1970s, prompted a diverse coalition to mobilize to offer a new perspective—both in family law and constitutional law—on the role of parental involvement. Part I.C explores how this new perspective shaped law on minors, parental involvement, and abortion.

A. Inventing the Consent “Consensus”

As William Blackstone explained in 1765, common law recognized the “power of parents over their children.”[15] Blackstone detailed responsibilities of parents to maintain, protect, and educate their children—including protecting their health.[16] The precise balance of power in decision-making between minors and their parents, however, was complicated. While acknowledging the general rule of parental decision-making, courts in the early nineteenth century distinguished certain issues they saw as involving parental rights, such as the rights of fathers to custody and to the labor of their children, from issues involving minors’ capacity to contract or make decisions for themselves.

Blackstone was clear that limits on minors’ ability to contract or act on their own behalf were intended “to secure them from hurting themselves by their own improvident acts.”[17] His treatise, however, assumed that minors could enter into certain contracts for their own benefit, especially in the case of “meat, drink, apparel, physic, and such other necessaries; and likewise for his good teaching and instruction.”[18] In the early nineteenth century, courts elaborated on the principle behind Blackstone’s necessaries rule, distinguishing contracts that benefitted minors from those that harmed them[19]—a distinction that early nineteenth century cases regarding contracts for marriage and military service help clarify.

Consider the question of minors’ ability to enlist in the military without parental approval. In the early nineteenth century, Congress allowed minors as young as thirteen to enlist in the Navy without explicitly requiring parental consent.[20] Parents and minors who brought habeas corpus petitions following desertion charges against minors on the ground that they had enlisted without parental consent rarely won in court because judges concluded that enlistment contracts benefitted minors and therefore could fairly be enforced without parental consent.[21] In one such case from 1816, United States v. Bainbridge, Justice Joseph Story made it clear that parents’ common law power of consent, albeit the general rule, was not absolute.[22] The case decided the fate of Robert Treadwell, a twenty-year-old man who had enlisted in the Navy and faced court martial for desertion.[23] Following his conviction, Treadwell and his father filed a habeas corpus petition, arguing that Treadwell could not have lawfully enlisted because he did not have his father’s consent.[24] Story acknowledged that fathers had “a right to the custody of [their] children during their infancy” and thus, established that it “cannot now be brought into controversy.”[25] A father was also “entitled to the benefit of his children’s labor, while they live with him, and are maintained by him.”[26] Further, Story reasoned, a father could bind his children to indenture contracts without their consent.[27]

But Story suggested that there were limits to parents’ authority, rooted in the very reasons that the common law gave them influence over their children’s upbringing.[28] “The custody of minors is given to their parents for their maintenance, protection, and education,” Story wrote.[29]

[I]f a parent, overlooking all these objects, should, to answer his own mercenary views, or gratify his own unworthy passions, bind his child as an apprentice upon terms evidently injurious to his interests, or to a trade, or occupation, which would degrade him from the rank and character, to which his condition and circumstances might fairly entitle him, it would be extremely difficult to support the legality of such a contract.[30]

Although the general rule was parental authority, that rule was intended to serve minors’ benefit.

Moreover, Story reasoned, the broad authority parents enjoyed did not mean that minors were unable to make any decisions themselves.[31] Story reasoned that minors, so long as they were “of reasonable discretion,” were prohibited only from making contracts that were prejudicial to their interests, whereas contracts “for their benefit, and for the public benefit” would be enforceable barring a statutory exception to the contrary, even without parental approval.[32] That is, minors could enter into contracts where they had sufficient maturity to understand them, but they then had the option of disaffirmance. While parental consent would render a contract binding, some contracts were binding even without it. Federal law said nothing about contracts of Navy enlistment, and minors benefitted from such contracts because they were entitled to “the pay, the bounties, and the prize money earned and acquired in the service.”[33]

The Pennsylvania Supreme Court reached a similar conclusion in the 1812 case of Commonwealth v. Murray.[34] John Connor, a seventeen-year-old boy, had been indentured to a shoemaker before his poor health prevented him from continuing in the position.[35] His mother, the sole surviving parent, purchased the remainder of his time, housed Connor, and began collecting a part of his wages before he enlisted in the Navy without her consent.[36] Following Connor’s prosecution for desertion, his mother argued that his enlistment was invalid because she had not consented to it.[37] The Pennsylvania Supreme Court disagreed.[38] Justice Jasper Yeates stressed that minors were not allowed to make certain agreements without parental approval but could enter into agreements “which may tend to their benefit,” including agreements to marry, purchase necessities, choose a guardian, or create a will, so long as they had the necessary “discretion for particular purposes.”[39] Justice Hugh Brackenridge agreed because he believed the contract to be beneficial: “The present contract gives him subsistence and clothing. The common law therefore warrants it, because it is both necessary and beneficial.”[40]

The complex status of parental consent—and its relationship to serving the best interests of children—was also reflected in early cases regarding minors and marriage. James Kent’s foundational treatise, Commentaries on American Law, noted that parents had general authority over their children that stemmed from their responsibilities “to maintain and educate their children.”[41] In support of that authority, the law gave them “a right to the exercise of such discipline, as may be requisite for the discharge of their sacred trust.”[42] But Kent stressed that in some states, the “consent of parents, or guardians, to the marriage of minors is not requisite.”[43] Joel Prentiss Bishop’s treatise likewise emphasized that “[t]he consent of parents is not, at common law, essential to the validity of the marriages of minors.”[44]

The common law set the age of presumptive legal consent for marriage at fourteen for boys and twelve for girls.[45] State statutes, however, created consent requirements in derogation of the common law. As early as the seventeenth century, several New England colonies, including Vermont, passed laws requiring minors to get the consent of their parents, masters, or guardians before marrying.[46] In a suit brought based on breach of a minor’s promise to marry, the Vermont Supreme Court in 1814 held that such a promise was not legally binding because of the lack of parental consent.[47] According to the court, under the state’s statute, “[t]he minor here is denied the privilege of carrying such contract into effect without the consent of a third person, the parent, master or guardian.”[48] Any other result, the court asserted, would be “absurd,” trusting the minor’s “discretion with a contract in the most important concern of life; on the prudence of which depends his own future happiness and prosperity.”[49] Generally, however, for much of the nineteenth century, state courts upheld marriages that met the common law age of consent even when state laws required parental consent as long as states did not repudiate the common law.[50] As one treatise explained in 1835, when it came to marriage, the common law required only “suitable contracting parties, and a free consent, to render it valid.”[51] This approach reflected the increasingly well-recognized doctrine that had emerged from the principles articulated by Justice Story and other jurists establishing that minors with sufficient maturity could be bound to contracts that were beneficial to them.[52] By the early twentieth century, treatises and other legal authorities clarified that minors also had the capability of entering into other types of contracts, although such contracts were voidable.[53]

In contrast, case law and statutes regarding parental consent to medical treatment remained comparably rare well into the twentieth century. The common law at times discussed medical treatment in the context of the doctrine of necessaries, asking whether a physician creditor could recover from a physician when a child sought services without the father’s consent.[54] But most struggles over parental consent arose in the context of tort suits in which the child had undergone a medical procedure.

In early cases, courts sometimes assumed that, although parental consent was the general rule, clear parental consent was not always required. In one of the first major cases on the subject, Bakker v. Welsh, a seventeen-year-old boy died during an operation on a suspected tumor.[55] Stephen Bakker, the decedent, had lived with his father on a farm and traveled to stay with his aunt and two adult sisters in nearby Grand Rapids, where he went to see a specialist in Grand Rapids who advised that he have the growth removed.[56] The physician obtained a tissue sample and sent Stephen home to his father.[57] When Stephen returned, the surgeon informed him, his aunt, and his sisters that he should have surgery. In the absence of Stephen’s father, everyone present apparently agreed to the operation. Dr. Welsh administered chloroform, but Stephen died before the operation began.[58]

Stephen’s father, Mr. Bakker, who had neither known that the operation would occur nor consented to it, brought a tort suit arguing that the surgeon had never obtained the consent of a parent or guardian.[59] The Supreme Court of Michigan rejected his claim.[60] The court seemed to question the need for parental approval given that Stephen was “a young fellow almost grown into manhood.”[61] Moreover, from the court’s standpoint, it mattered that Mr. Bakker should have known what was going on—and thus should have consented to Stephen’s treatment.[62] There is “nothing in the record,” the court reasoned, “to indicate . . . that the father did not approve of his son’s going with his aunt and adult sisters, and consulting a physician as to his ailment, and following his advice.”[63] The Bakker Court suggested that any reasonable parent would have consented to the treatment at issue.[64] In other words, the role of parental consent was a means of ensuring a positive outcome for the minor’s health.[65]

The Michigan Supreme Court reaffirmed this approach in the 1912 case of Luka v. Lowrie.[66] Fifteen-year-old Charles Luka was severely injured when his foot got caught in the wheels of a train car.[67] When Charles was taken to the hospital, the doctors agreed that an amputation was needed to save his life.[68] While the operation was successful, a suit was brought on Charles’s behalf, arguing that the surgeon had committed a tort by performing the amputation without his parents’ consent.[69] The court rejected this claim, too. In part, the Lowrie opinion distinguished the facts of Bakker because the surgeons in Charles’s case could not have plausibly secured parental consent in time because an “emergency” made it “impracticable” to secure consent.[70] “There is nothing in this record to indicate that, had the parents of plaintiff been present at the operating table, they would have refused their consent to the operation,” the court explained.[71] “Indeed, it is inconceivable that such consent would have been withheld in the face of the determination of five duly qualified physicians and surgeons that it was necessary to save the plaintiff’s life.”[72] In both cases, the courts assumed that parents would consent to treatment promoting their children’s well-being.[73]

Other cases, though, particularly where younger children were involved, held that parental consent was required. When eleven-year-old Imogen Rishworth died at the start of an operation to which her adult sister consented, the Texas courts allowed recovery in a tort suit.[74] Rishworth, unlike some of the other patients, did not have an emergency condition; instead, nasal adenoids had created breathing issues that her sister, who had nursing experience, believed should be treated.[75] The lower court in Moss v. Rishworth reasoned that “a surgeon is liable for operating upon a patient unless he obtains the consent of the patient.”[76] Because minors were legally incapable of giving consent, a physician in cases like Rishworth’s had to obtain the consent of a parent or guardian.[77] The Texas court tried to make sense of other cases like Bakker; in Rishworth, the court held that, although Imogen’s adult sister had temporary custody, she “had no authority to give consent to perform the operation in the absence of an emergency.”[78]

But the appellate court in Rishworth stressed that parental consent was required even if a physician appeared to have acted in a child’s best interest.[79] “It is insisted that the paramount interest of the child alone must be considered in determining whether such an operation shall be performed,” the court explained.[80] But the common law, the court reasoned, assumed that parental consent was needed to protect the best interests of the child.[81] The court justified the requirement for parental consent on the interest of the child’s well-being: “The law wisely reposes in the parent the care and custody of the minor child,” the court reasoned.[82]

When the United States Court of Appeals for the District of Columbia Circuit articulated what it perceived as the common law approach in the prominent 1941 case of Bonner v. Moran, the court was inventing a consensus as much as it was stating a well-established legal principle.[83]Bonner had already made headlines because of the perceived heroism of the plaintiff’s fifteen-year-old son. His older cousin had suffered severe and disfiguring burns, and a plastic surgeon told the cousin’s mother and aunt that she would benefit from skin grafts from a donor with a matching blood type.[84] After discovering that her nephew was a match, his aunt recruited him to participate in a series of invasive and experimental surgical procedures.[85] He agreed and went forward without consulting his mother, who was ill at the time and unaware of the procedures her son was undergoing.[86] All told, Bonner had two surgeries and spent a total of two months in the hospital.[87] His mother later sued, arguing that she had not consented to either procedure.[88]

The trial court in Bonner had sided with the surgeon, relying on the First Restatement of Torts, which reasoned that if “the child is capable of appreciating the nature, extent, and consequences of the invasion, his assent prevents the invasion from creating liability, even though the assent of the parent is expressly refused.”[89] The appellate court reversed, citing “the general rule . . . that the consent of the parent is necessary for an operation on a child.”[90] As with Rishworth, the Bonner Court of Appeals rested the rationale for parental consent on parents’ more developed discretion to make decisions in the child’s best interests: “[T]here is general recognition of the fact that many persons by reason of their youth are incapable of intelligent decision, as the result of which public policy demands legal protection of their personal as well as their property rights,” the court explained.[91]

Nevertheless, Bonner, like other contemporaneous decisions, acknowledged that the common law rules on consent to medical treatment were not well established.[92] “In the great majority of the states, this question seems never to have arisen,” the Bonner Court acknowledged, “nor are there any federal cases on the subject.”[93]Bonner, moreover, gestured to key justifications for not requiring parental involvement, including scenarios in which a minor was of age and had “a mature mind to understand precisely what” they were being asked to do.[94] Yet because the particular operation at hand was so “involved in its technique as to require a mature mind to understand precisely what the donor was offering to give,” the court stated, “[w]e are constrained, therefore, to feel that . . . consent of the parent was necessary.”[95]

Until the mid-twentieth century, the common law rules governing parental consent were murky and complex. Courts often (but not always) looked to distinguish scenarios where minors had consented to an arrangement that benefited them from harmful bargains. Other judges simply acknowledged that the law provided no clear answers about when parental consent was required.

In the 1940s and 1950s, however, a moral panic around juvenile delinquency bolstered support for parental consent requirements. Starting during World War II, politicians, prosecutors, psychiatrists, and law enforcement officials portrayed juvenile delinquency, including sexual promiscuity and criminal offenses, as a grave national concern.[96] In 1946, Attorney General (and future Supreme Court Justice) Tom Clark created a campaign to publicize the dangers of delinquency.[97] In 1950, Senator Estes Kefauver led a committee considering the effects of comic books and mass media on juvenile crime.[98] In 1954, the German-American psychologist Frederic Wertham supercharged fears that the media were unleashing an epidemic of adolescent misconduct with the publication of Seduction of the Innocent, which claimed that so-called crime comics had helped to unleash an unprecedented wave of delinquency.[99] The solution, Wertham suggested, was a “simple sanitary law to protect children under fifteen.”[100] Most lawmakers interpreted this as a call to censor certain materials—or at least criminalize their sale to minors.[101]

But censorship was constitutionally problematic. For example, the Supreme Court struck down New York’s law limiting the sale or distribution of comic books for being unconstitutionally vague.[102] Mandating some form of parental consent to access materials thought to be dangerous emerged as a possible middle-ground solution. J. Edgar Hoover, the FBI director, responded to a request from the Kefauver committee, in part, by calling for more parental involvement.[103] Other Americans seemed to agree. In a 1954 survey, Gallup found that one major reason that “Teenagers [were] ‘Go[ing] Wrong’” in the view of American adults was because parents were “Not Strict Enough.”[104]

Civil libertarians and decency activists, who were at loggerheads about censorship proposals, could at least agree on the importance of requiring parental consent for reading material. In 1938, the Catholic Church created the National Organization for Decent Literature (NODL), which circulated a list of “mature literary works” and “comic books, magazines, and pocket-size books which it judged objectionable for youth” to help parents.[105] This advocacy, the NODL explained, was necessary to “defend the right of parents . . . to counsel and direct their families.”[106]

The American Civil Liberties Union (ACLU) likewise saw parental involvement as a better solution, even as it attacked the NODL for championing censorship.[107] Acknowledging that “the problem of juvenile delinquency is of major importance,” the ACLU stressed in the mid-1950s that “our [nation’s] best hope lies in the home itself—parental control over the reading habits of children.”[108]

Against this new cultural backdrop, the assumptions underlying Bonner about the need for parental consent in medical care gained greater force. Physicians, hospitals, and other institutions began introducing explicit rules requiring proof of parental consent before minors could be treated absent emergent threats to life.[109] By the 1960s, then, the common law had changed relatively little, but belief in the importance of parental consent had become far more widespread. As a result, physicians and health systems curtailed teens’ access to medical care without parental consent or explicit statutory authority.[110]

B. The Common Law “Consensus” Under Fire

The movement to roll back parental consent requirements began during the 1960s as a response to public benefit programs.[111] As more people of color became eligible for public aid, racialized anger about welfare costs escalated, with some state lawmakers and segregationists blaming Black mothers on welfare for their own plight and seeking to punish them. Civil libertarians sought to defuse these race-based attacks by probing the reasons for unplanned pregnancy. These reformers acted at a time when rates of sexually transmitted infection were skyrocketing. Activists like Harriet Pilpel saw a common thread in these trends: Those primarily affected by unplanned pregnancy were minors, not adults, and the problem was not immoral decision-making but a lack of access to care, the unintended consequence of rules governing parental involvement. Focusing on the potential drawbacks of parental intervention, activists argued for a framework that considered minors’ welfare.[112]

Pilpel’s movement to change the rules of parental involvement first stemmed from race-based backlash to changes in the implementation of the Aid to Families with Dependent Children (AFDC) program. The AFDC program was created in 1935 to provide financial support for low-income children.[113] For decades, Black families had often been cut off from AFDC payments because local officials had discriminatorily administered eligibility criteria to exclude them, but by the 1960s, the number of Black families receiving AFDC payments began to increase.[114]

A virulent backlash to the AFDC program unfolded in a variety of state legislatures, blending class and race resentments. Blue ribbon commissions, government-convened advisory groups, and other expert groups in states like New Jersey recommended introducing residency requirements or cutting off AFDC payments to those who had children outside of marriage.[115] Similarly, states across the country, from Virginia to California, considered proposals to compulsorily sterilize those who had more than a certain number of children outside of marriage to reduce spending on welfare programs.[116]

Even within the ACLU Due Process Committee, some members favored applying coercive proposals to encourage women to stop having children outside of marriage. Nanette Dembitz, a veteran ACLU attorney and family law judge, drafted a report for the American Bar Association condemning unwed mothers who received public aid.[117] “I fully agree that ‘welfare mothers are disadvantaged,’” she wrote to her colleague Harriet Pilpel in 1970.[118] “However, the misery they inflict on their children by their continued childbearing cannot be disregarded.”[119]

Pilpel, like many of her activist contemporaries, framed high rates of venereal disease and illegitimacy as a social crisis but profoundly rejected what she saw as racist, sexist, classist, and unconstitutional solutions to the problem.[120] Pilpel noted that high rates of childbearing outside of marriage particularly plagued teenagers. Moreover, Pilpel emphasized that this reflected not the bad choices of unmarried mothers but existing abortion laws, a lack of “effective access to contraceptive services” for adults, and the fact that “teenagers are by and large denied all contraceptive services” because they could not consent to them.[121] “You are trying to persuade people who are not in fact being accorded the means of following your persuasion,” Pilpel wrote to Dembitz.[122] “To impose any further disadvantage on these already disadvantaged women is monstrous.”[123]

As early as 1952 in a coauthored piece, Pilpel had described the decision to use birth control as “the most intimate kind of personal choice.”[124] The Supreme Court’s 1965 decision in Griswold v. Connecticut, holding that a Fourteenth Amendment right to privacy encompassed married couples’ right to use contraception, only crystallized Pilpel’s view.[125] She still insisted that social anxieties about promiscuity and illegitimacy were misplaced: It was not welfare benefits or contraceptives that led young women to have children outside of marriage; rather, a lack of access to health care was to blame.[126] “[W]ithholding contraceptives from sexually active persons,” Pilpel wrote, “is certain to produce unwanted babies, dangerous illegal abortions, high rates of illegitimacy—and blighted young lives.”[127]

Rather than assume that parental intervention always benefited minors, Pilpel became convinced that parental consent requirements sometimes harmed the children they were intended to protect.[128] She applied this principle to abortion, testifying in 1968 that “there should be no special abortion law but that abortion should be governed by the same laws, rules and regulations” applicable to any medical procedure.[129] Pilpel’s convictions were shared by her fellow activists, ultimately guiding their efforts to roll back parental consent requirements.

An epidemic of sexually transmitted infections prompted new actors to join Pilpel’s cause. Federal authorities reported an outbreak of gonorrhea worse than anything seen in two decades, fueled by a strain that was resistant to common antibiotics.[130] In Connecticut, for example, gonorrhea cases among teenagers increased 30 percent in 1967 alone.[131] In the years between 1965 and 1975, cases of gonorrhea tripled, driven up by a combination of changing sexual mores and ineffective programs that did little to screen or reach high-risk populations, including college students and teenagers.[132] Cases of sexually transmitted infections among teenagers almost quadrupled between 1960 and 1972.[133]

In response to this epidemic, new allies entered the fight against blanket parental consent requirements. For example, California legislators sponsored a statutory exception for minors to get treatment for sexually transmitted infections without parental consent.[134] One legislator explained: “Vital medical services are denied or delayed at a time when immediate treatment may be necessary since doctors are extremely reluctant to treat without parental approval.”[135] Public health officials lobbied for similar laws. James Speers, the Iowa State Health Commissioner, asked the legislature to create an exception for sexually transmitted infections because a parental consent requirement undermined the welfare of minors.[136] Teenagers, Speers explained, “are afraid to go to a doctor and have their parents find out what is going on.”[137] By 1971, twenty-nine states had created statutory exceptions for minors to access treatment for sexually transmitted infection without parental consent.[138] Access to birth control without parental consent, however, remained rarer: only seven states permitted minors to access birth control without parental consent in 1971.[139]

In theory, a parental consent requirement for birth control was race- and sex-neutral, but conditions on the ground made it much easier for some to access contraceptives than others. For instance, Black Americans often lacked access to high-quality family planning services.[140] While the federal government invested more in family planning programs in the 1960s—and regularly connected them to population control, contemporary language referring to a movement claiming that out-of-control demographic growth threatened national security and the environment and could lead to spiraling welfare expenses—it often offered only limited options and little in the way of follow-up care.[141]

Physicians, civil libertarians, and feminists also understood the difference between policy on venereal disease and contraception as an issue of sex discrimination. After all, since the 1930s, it was comparably easy for minors to get condoms at gas stations and restaurants.[142] In contrast to this, female contraceptives, including the birth control pill, required a prescription.[143] Reformers thus framed blanket parental consent requirements as discriminating against women. “The unmarried female of any age whose sexual behavior exposes her to possible conception,” the American College of Obstetricians and Gynecologists explained in a 1971 resolution on the issue, “should have access to the most effective methods of contraception.”[144]

When North Carolina considered eliminating a parental consent requirement for contraception, witnesses stressed the irony of public policies that treated young women as responsible enough to raise the children they bore but not to obtain contraceptives. “It seems to me,” one witness reasoned, “that if they are of the age that they can produce offspring children and we expect them to take the responsibility for the upbringing of those children, we should allow them a choice of not producing families.”[145] Another witness stressed even more clearly that parental consent requirements deepened discrimination on the basis of sex. “Boys of any age have easy access to contraceptives from the machine in the men’s restrooms in restaurants and service stations,” explained Dr. Sarah Morrow in advocating for the elimination of North Carolina’s parental consent requirement.[146] “The burden of a pregnancy, however, falls upon the girl, and she seldom has access to birth control.”[147]

In response to similar campaigns, states began to pass statutes that explicitly allowed minors to consent to birth control without parental involvement.[148] States also changed their laws on parental consent for the treatment of pregnant minors. The process was gradual and took place over the course of several decades: California may have been the first state to modify its laws in 1953.[149] Other states enacted similar laws around roughly the same time as they eliminated parental consent laws relating to treatment for venereal disease.[150] Consequently, even before Roe v. Wade,[151] states increasingly permitted minors to consent to medical care related to pregnancy.[152]

C. Minors’ Rights: Abortion Before Roe

In the pre-Roe period, some states had begun to modify their abortion statutes to increase access to abortion, many in reaction to the Model Penal Code’s decriminalization of abortion under certain circumstances.[153] In contrast to the movements focused on contraception and sexually transmitted infections discussed above, a number of the new abortion statutes included parental consent provisions.[154] In some states, these provisions were the product of political compromise, as pro-choice legislators, seeking to ensure overall abortion liberalization, acceded to legislators who were more cautious about expanding abortion access.[155]

In other states, legislatures inserted parental consent requirements to ensure that hospitals would allow abortion access to minors. The North Carolina process was representative. The state’s parental consent language was added in 1967 to liberalize the state’s 1881 abortion law, which previously proscribed almost all abortions with a narrow exception for the life of the patient.[156] Although not included in the original legislation, the parental consent requirement was added to ease passage of the bill, ensuring that pregnant patients had easier access to abortion, despite opponents of the bill who complained it guaranteed that parents could get a girl “out of a mess too easily” in cases of alleged rape.[157] As legislators’ treatment of parental consent to abortion was in flux, courts, too, began to approach parental involvement differently in the abortion context. We turn next to these developments, which helped set the stage for a new chapter in conflicts over parental consent.

Few reported cases prior to Roe considered minors’ ability to obtain an abortion. This is not surprising. While abortion was ubiquitous in actual practice, relatively few states provided legal access.[158] In the states that had begun to liberalize abortion, more than half included provisions that explicitly required parental consent for minors.[159] In other states, where newly-passed abortion statutes did not explicitly address the issue, a pattern began to emerge: Rather than focus on minors’ capacity to consent generally as earlier cases had considered, courts began to stress that new state statutes were treating some decisions—including time-sensitive, critically important medical matters—as exempt from any parental involvement requirements.[160] The case decisions of this era show how legal visions of parental rights were shifting and exempting certain minors’ rights from parental consent.

For example, in the pre-Roe case Ballard v. Anderson, the plaintiff was a minor who sought an abortion with her physician’s approval, but without parental consent.[161] The hospital’s “Therapeutic Abortion Committee,” however, refused to permit the procedure because the minor had not received parental consent, despite the abortion statute’s silence on the issue. The court began by noting that the general requirement of parental consent for services provided to minors was “for the simple reason” that a minor could disaffirm contracts as “protection against his own improvidence and the designs of others.”[162] Yet under the minors’ pregnancy treatment statute, California established that a minor could not disaffirm a contract when it concerned “hospital, medical and surgical care related to her pregnancy.”[163]

Turning to abortion, the court noted that any policy excluding therapeutic abortion (those performed for medical reasons) from the class of pregnancy-related surgical care available to minors without parental consent would necessarily be “based on some compelling interest of . . . the state in preventing therapeutic abortions.”[164] Reviewing the legislative history of the newly passed abortion statutes, the court found no compelling interest that would override the minor’s right to the treatment.[165]

In a second pre-Roe case concerning an abortion statute silent on parental consent—this time, a case in which a parent sought an abortion for a minor patient over the minor’s objection—a Maryland appellate court likewise rested its reasoning on a statute authorizing minors to make medical decisions regarding their pregnancies.[166] The trial judge had ruled that a sixteen-year-old could not disobey her mother’s medical orders, including an order to begin the process for approval of an abortion. The Court of Special Appeals reversed. While briefly noting that, according to Maryland law, the parents were generally responsible for the minor’s care, the law did not allow the parent to require the child to undergo an abortion.[167] As in Ballard, the court rested its decision on the minor’s statutory authority to consent to medical treatment relating to pregnancy.[168]

Court decisions of the era, like state statutes, show how legal visions of parental rights were in flux. More reformers began to argue for the need for a framework that ensured parental involvement benefited minors, not merely one that assumed the value of parental intervention. But as Part II shows, this vision of parental rights was obscured by backlash to Roe v. Wade and the later mobilization of the conservative Christian legal movement. Conservatives mobilized a different view of tradition, one centered on parental authority, care, custody, and control. Rather than asking why parents sometimes should have the right to consent (often, to maximize child well-being), these movements focused debate on the question of who had authority. We focus on this reframing of parental rights in two critical contexts: struggles over abortion and public schools. We spotlight both case studies to illustrate a broader phenomenon of obscuring the common law focus on child well-being as a touchstone for parental involvement.

II. Parental Authority and Minors’ Autonomy: Social Movement Mobilization on the Right and the Courts’ Response

How is it that the common law treatment of child well-being has receded in contemporary debate, in favor of a history that emphasizes absolute parental rights? In this Section, we argue that between the 1960s and the 1980s, a series of movements worked to reframe the debate about parental rights. These movements did not focus on when parental involvement was justified as a means to achieving children’s well-being. Instead, they asserted that parents had sweeping rights to decision-making regarding children over and above state actors, including schools, courts, and legislators, as well as children themselves—a position we call parental-rights absolutism. That is not to say that parents or advocates who embraced this position did not care about their children’s well-being. Instead, parental-rights absolutists simply did not frame well-being as the central issue; rather, they demanded control for parents regardless of the impact on children.

In charting the rise of parental-rights absolutism, we focus on two social movement campaigns in which assertions of parental authority became central: abortion[169] and public education.[170] These movement actors argued that our Constitution and our nation’s deeply rooted traditions recognized broad parental rights that stabilized the family and the social order. These claims of parental-rights absolutism, we assert, obscured the more traditional approach, which assigned parental authority as a vehicle for supporting children’s well-being. Part II.A begins by considering how the idea of parental authority played out in what was arguably the most visible culture war of the 1970s: the war over abortion.[171] As Part II.A shows, antiabortion groups developed a legal and political strategy that framed parental involvement as a matter of authority and control—a right to which parents were entitled, not simply a means to protect the welfare of minors. This strategy was somewhat effective politically but produced less success in court. By the 1980s, as Part II.B documents, an emerging conservative Christian legal movement made this vision of parental control and authority the centerpiece of a new litigation campaign that took aim not only at minors’ ability to consent, but also at the state’s ability to make decisions for children.

But as we show, this new account of parental authority did not go unchallenged. We see the abortion context here as especially instructive. In a series of cases about minors’ rights and abortion,[172] the Supreme Court drew on ideas about the importance and benefits of autonomy that reached back much further than Roe, as we have shown, and that built on the Court’s developing recognition of minors’ rights in other contexts.

This period saw the emergence of an ongoing clash between minors’ autonomy and parental authority. Recovering this conflict, as Part II does, helps make sense of why the common law history that valued parental rights primarily as way of protecting minors’ well-being has become obscured. Under this logic, recognizing separate rights for minors extended earlier common law principles rather than contradicting them.

A. Authority Versus Autonomy

Several movements have pursued other important objectives by invoking the language of absolute parental rights. We start in the 1960s, at precisely the moment that reformers were challenging parental consent laws in the health care arena.[173] Politicians invoked parental authority to criticize the autonomy given to minors. In 1962, FBI Director J. Edgar Hoover blamed rising rates of juvenile crime partly on minors being given too much autonomy and an accompanying “steady decline of parental authority.”[174] That decade, as advocates like Pilpel showed that parental authority sometimes undercut the well-being of minors,[175] commentators like Hoover reasoned that minors simply made unwise decisions because of a lack of parental authority. Addressing juvenile crime or immorality, one Catholic editor explained, required “reverence and respect for parental authority.”[176]

A more elaborate vision of parental-rights absolutism emerged in the antiabortion movement.[177] In Roe’swake, this movement’s primary goal was a constitutional amendment recognizing constitutional fetal rights. In 1973, for example, at a meeting of all major state antiabortion leaders, those present unanimously passed a resolution providing that “state right to life groups and people pro-life everywhere unanimously support an effort to bring a constitutional amendment to the U.S. Constitution that would guarantee the right to life for all humans.”[178] The group next considered how state legislation might “challenge the court”—especially the conclusions of Roe—and “keep . . . [pro-life] court case[s] alive.”[179] Among the state restrictions proposed were laws that “would require the consent of the parents where a minor is involved.”[180]

As they developed this incremental approach, abortion opponents articulated a powerful constitutional and political frame centered on parental-rights absolutism. They insisted that parents had rights of custody and control rooted in history and common law tradition, and that such rights gave parents the constitutional right to veto their child’s access to abortion, regardless of whether their children would benefit from this intervention.[181]

After Roe, court decisions on abortion almost immediately broke from the pre-Roe model. Courts began to adopt a more nuanced conception regarding minors’ decision-making built on the recognition that (1) minors, too, had rights; (2) family integrity would not always be preserved by mandating parental involvement rather than allowing minors to make determinations themselves; and (3) parental authority was not an absolute end in itself but instead a means of protecting minors’ welfare. Rather than tightly focusing on whether the state’s statutory scheme authorized mature minors to consent to medical care, they began to focus partly on the rights of minors. For example, less than a month after Roe, a District of Columbia trial court considered a minor’s ability to obtain an abortion over her mother’s objection.[182] The minor’s mother, an ordained minister in the Unity Holiness Church, opposed the abortion based on her religion.[183] The court held the minor was entitled to an abortion on two grounds: (1) She would suffer harm if she continued the pregnancy;[184] and (2) constitutional zones of privacy established in a series of cases, including Roe,protected the minor’s right to make a decision.[185]

The newly established abortion right was also critical to the Washington Supreme Court’s decision in State v. Koome. There, a state statute provided parents with the power to overrule their daughter’s decision to have a legal abortion two years after Roe.[186] In defending the statute, the State had stressed the importance of ensuring family integrity and that requiring parental consent was necessary for “support of the family unit and parental authority.”[187] In striking down the statute, the court sounded three themes that recur in later cases. First, although it recognized the significance of parental interests,[188] it held that parental rights “must yield” to a child’s fundamental rights and to “important interests of the State.”[189] Second, the court acknowledged that there appeared to “be little parental control left for the State to help salvage” by the time a minor sought an abortion without parental approval.[190] Third, the court criticized the statute’s mandate of parental consent as too broad: It applied not just when parental “judgment is better informed . . . but also where it [was] colored by personal religious belief, whim, or even hostility to [a minor’s] best interests.”[191] Put another way, it held that the argument for parental consent did not apply to situations in which parents might not be responding to their child’s best interests. The court also noted that the abortion decision “is, in effect, [the minor’s] first ‘parental’ decision.”[192] Even the dissent recognized that “a minor has the same right to privacy as does an adult.”[193]

Faced with decisions like Koome, antiabortion advocates and antiabortion state legislators began to argue that parental involvement was not primarily a matter of protecting the interests of minors, or even ensuring they had access to medical care,but a matter of constitutional authority for parents themselves.For example, in 1974, the Pennsylvania state legislature enacted a law designed to limit abortion, including provisions requiring written parental consent.[194] When the law was challenged as unconstitutional, the State claimed it had a “legitimate interest in protecting ‘the long-established inherent rights of . . . parents concerning the familial unit.’”[195]

Initially, these arguments did not persuade most courts.[196] The District Court for the Eastern District of Pennsylvania, for example, held in 1975 that Pennsylvania’s parental consent requirement violated minors’ constitutional rights, again stressing that parental rights were not absolute, and the statutory requirement was destroying minors’ ability to choose.[197] For further support, the court harked back to pre-Roe reasoning. It looked to a 1970 Pennsylvania statute that granted minors the ability to consent to various health services, including the ability “to treat pregnancy, and venereal disease.”[198]

Florida’s parental consent statute was declared unconstitutional based on a similar analysis.[199] A lower court had concluded that, if the state could not protect its interest in fetal life until viability, then it could not authorize parents to do so.[200] While the court acknowledged the persuasiveness of the State’s argument that parents had the “traditional and primary obligation for the custody, care, control, and nurture” of their children, the court emphasized that those parental interests were not absolute and could not override those of the pregnant minor.[201] When the Fifth Circuit heard the case, it first acknowledged that parental rights were “important to the stability of society.”[202] Yet, it also observed that the Supreme Court had already recognized minors’ rights to free speech and due process, at least on a case-by-case basis.[203] Building on that observation, the court turned to abortion, noting that all of Roe’s criteriaconcerning the need for a particular right and the consequences of not recognizing it applied with even greater force to an unwed pregnant minor. Indeed, teenage motherhood involves serious consequences, including impairment of educational opportunities.[204]

These developments in the courts sparked an antiabortion backlash. Antiabortion activists contended that parents had the constitutional right to control their children’s medical decisions as a matter of history and tradition, describing abortion as “the only” procedure that could be performed without parental consent.[205] At the same time, the focus of statutory parental rights provisions—as abortion opponents framed them—was asserting the power of parents as against that of doctors or even judges. In the aftermath of the Florida decision, for example, an antiabortion activist argued that without a parental consent mandate, the government would be “usurping the parental authority by denying the parent the right to control the actions of a child.”[206] Abortion opponents also argued that the law should simply presume that parental involvement benefitted children.[207] Americans United for Life (AUL), a prominent antiabortion group, argued that the critical issue was preserving “parental authority.”[208] Parental consent laws, AUL argued, “provide[] protection for the parents’ right and duty to make reasonable decisions . . . for the control and proper functioning of the family as a harmonious unit.”[209]

While most courts in the years after Roe were unconvinced by parental-rights arguments, some ruled differently. In Planned Parenthood of Central Missouri v. Danforth, the lower court upheld Missouri’s newly-passed parental consent provision based on the State’s compelling interest “in safeguarding the authority of the family relationship.”[210] The Supreme Court, however, disagreed, holding that “the State may not impose a blanket provision . . . requiring the consent of a parent or person in loco parentis as a condition for abortion of an unmarried minor.”[211] In a relatively brief discussion, Danforth acknowledged that the Court had recognized limits on the state’s ability to interfere with parents’ discretion, but observed that the case before it involved a potential conflict between parents and children, not parents and the state.[212] What was more, the Court noted, constitutional interests in autonomy did “not mature and come into being magically only when one attains the state-defined age of majority.”[213] In support of this statement, the Court cited to cases involving juvenile justice, free speech, and due process.[214] With these earlier cases as precedent, Danforth rested on the principle that minors have valuable autonomy interests. The Court began to develop the concept that those interests have to be weighed against parental authority.

Conflicts about the relationship between autonomy, parental authority, and child well-being erupted beyond the abortion context as well. This was certainly the case in disputes about birth control. In 1977, the Supreme Court struck down a New York statute that prohibited the distribution of contraceptives to anyone under age sixteen in Carey v. Population Services International.[215] The ACLU’s case strategy had involved presenting “statistical evidence” of the “dire effects upon teenagers of uncontracepted intercourse”—and the inefficacy of laws requiring parental consent when it came to minors’ decisions to become sexually active.[216] The Court cited to Gault for the principle that constitutional rights were not solely for adults.[217] Turning to the statute at issue, the Court relied on Danforth to hold that “the State may not impose a blanket prohibition, or even a blanket requirement of parental consent.”[218] In reaching this conclusion, the Court referred to an absence of supporting evidence for the State’s limitation on minors’ access to contraceptives.[219]Carey also underscored the importance of autonomy for minors, particularly when it came to “decisions affecting procreation.”[220]

Abortion opponents read Carey and decisions like Danforth as cut from the same cloth: a threat to parents’ authority to control crucial aspects of their children’s upbringing. The U.S. Bishops’ Committee for Pro-Life Activities argued that these rulings were “direct invitations to teenagers to promiscuity.”[221] Bemoaning the results in such cases, the Clarion Herald, an antiabortion Catholic publication, asked how far “the court [would] go in stifling parental authority.”[222] Another 1977 editorial in the Catholic Commentator pointed to these decisions as proof that bureaucrats, activists, and doctors were “bent on replacing parents by taking over their authority in the realm of morals.”[223]

Others began connecting parental involvement abortion laws to school policies on sex education. A 1978 editorial in the Catholic Transcript, for example,complained that because of Supreme Court decisions, minors were able to go to birth control and abortion clinics during school hours.[224] The author warned that such examples proved “the extreme to which schools can go in preempting parents’ authority.”[225]

But the companion case to Danforth, Bellotti v. Baird, provided a strong basis for antiabortion advocates to pursue parental rights claims. In that case, the lower court had entered an injunction striking down Massachusetts’s parental consent statute on the ground that it created a “parental veto” over the performance of abortion on minors.[226] While the Supreme Court reiterated its opposition to a blanket parental consent requirement, it asserted that parental consent could be constitutionally permissible so long as the law allowed mature minors to access abortion through a judicial bypass procedure.[227] Because it was unclear whether the Massachusetts law allowed such a procedure, the Court vacated the lower court’s order and remanded the case.[228]

Bellotti then returned to the Court in 1979 with the judicial bypass procedure clarified. Yet, given that the statute required parental notification of the judicial bypass proceeding, the Court struck it down as unconstitutional and reiterated the importance of minors’ autonomy interests.[229] Crucially, Bellotti explained the importance of autonomy not simply as an extension of Roe but as a reflection of teachings we have shown to have much deeper roots in our tradition. Bellotti acknowledged the importance of parental involvement because it benefitted minors who lacked “the experience, perspective, and judgment to recognize and avoid choices that could be detrimental to them.”[230] Parental involvement was not incompatible with minors’ autonomy, the Court reasoned.[231] Rather, if properly tailored by the law, parental involvement could help ensure “the child’s chances for the full growth and maturity that make eventual participation in a free society meaningful and rewarding.”[232]

Bellotti also explained the importance of autonomy in decisions around pregnancy.[233] Such decisions have particularly high stakes for minors, whose identities and futures would be changed, and who would often lack the “education, employment skills, financial resources, and emotional maturity” to easily transition into parenthood.[234] What was more, the Court reasoned, a minor’s decisions are unusually time sensitive.[235] In calibrating parental involvement to benefit minors, the opinion affirmed that a parental consent requirement was constitutional so long as judicial bypass was available without a minor needing to procure consent. The Court then set out four requirements for parental involvement statutes.[236]

Conservative Protestants, who joined the antiabortion movement in the later 1970s, transformed this vision of parental-rights absolutism and applied it in a very different context: conflicts between parents and the state. Although the focus of this Article is on parent-child conflicts, this change in the movement is critical to understanding contemporary approaches to interfamily conflicts. Part II.B considers this period next.

B. The Conservative Christian Legal Movement, Public Schools, and the Fight for Parental Authority

Questions of parental rights were front and center when conservative Protestants formed new political groups to create what the televangelist Jerry Falwell called a “moral majority of voters.”[237] The late 1970s saw the founding of a flurry of new conservative Christian organizations, including Christian Voice (1978), Concerned Women for America (1978), and the Moral Majority (1979), each of which called for a greater role for a certain form of Christianity in American public life.[238] A handful of lawyers, such as Michael Farris and John W. Whitehead, began litigating cases on behalf of these groups. For such litigators, a central preoccupation was what Whitehead called the “impact of secularism on the courts and legislatures, the family, the educational system, the media, and the church.”[239] Farris, too, invited Concerned Women for America to “wage legal battle against humanism.”[240]

Whitehead and other litigators tapped into conservative Christians’ deep concerns that they were losing control of their children to meddling public schools, social workers, and bureaucrats.[241] Christian parents, protesting the use of textbooks that quoted civil rights activists or gay poets, argued that federal bureaucrats and school boards were “seeking to destroy the souls and minds of our innocent children.”[242] The National Federation of Church Schools agreed that bureaucrats believed that “children don’t really belong to parents” because “the state operates from the presumption that they are the owners and guardians of children’s minds and futures.”[243]

The Rutherford Institute and other conservative Christian litigation groups represented parents in a wide variety of conflicts that the groups positioned as “an ideological battle to determine who’s going to win the schools.”[244] In and outside of court, conservative activists replaced the question of child well-being with the question of whether parents or bureaucrats should control children’s education.[245] Congress considered passing a bill allowing parents to take tax deductions to pay for private schools;[246] another bill, claiming to advance parental authority, would have prohibited federal funding to any school deemed to teach “secular humanism.”[247] The prominent conservative activist Phyllis Schlafly wrote that parents had both economic and moral rights when it came to their children’s education, rights that were being destroyed by public schools and the government.[248]

Litigators like Whitehead raised similar claims in court, framing disputes as being about whether the government or parents exercised control.[249] In 1986, Rutherford sought to intervene on behalf of a group of parents to defend a Kentucky parental consent to abortion requirement.[250] The consent requirement, the group argued, reflected that “the parents’ claim to authority in their own household to direct the rearing of their children is basic to the structure of our society.”[251] Rutherford made the defense of parental authority central to its mission. The organization defended parents who had pulled their children from school, as well as those who faced child abuse investigations. The group also promoted parental involvement abortion laws and challenges to school curriculum.[252] The common denominator, Whitehead explained, was that “statist” intervention into the family had become widespread “under the guise of the ‘best interests of the child.’”[253] “Traditionally very strong,” he wrote, “the rights and authority of parents are continually thwarted and undermined—by the courts, the public school system, the legislatures, and school authorities.”[254]

Other conservative Christian litigation groups echoed the strategy of framing the issue as parental rights versus government control. In 2001, for example, the Alliance Defense Fund (ADF) (now, the Alliance Defending Freedom), argued that the recognition of same-sex marriage would undermine parental authority and ensure that children would be taught in school that “same-sex ‘marriages’ are no different than the traditional union of one man and one woman.”[255] ADF helped to fund the litigation in Troxel v. Granville, a critical parental rights case, as well as cases defending school prayer, state funding of Christian schools, and bans on same-sex intimacy and same-sex marriage.[256] As the Wanderer, a lay Catholic newspaper, explained, the thread running through such litigation was an effort to “protect children [and] uphold parental rights.”[257]

Of course, claims of parental-rights absolutism resonate very differently when they are applied to conflicts outside the family than when they concern intrafamily conflicts. Reframing an issue as a matter of parental authority has not always been a successful political strategy. In the 1990s, for example, voters rejected so-called Parents Rights Amendments (PRA) through ballot initiatives.[258] In Colorado, for instance, opponents of a PRA stressed that its abstract support for parental authority could clash with minors’ best interests by excusing child abuse or neglect, complicating adoption procedures, or undermining the quality of public education.[259] This suggests that when the clash between parental rights and children’s well-being was presented starkly enough, the public chose children’s well-being.

Generally, however, abstract arguments about the importance of parental consent have been politically popular. Americans have long supported laws requiring parental involvement for abortion, for example, with seven in ten adults approving such requirements as recently as 2022.[260] And members of both parties have at times supported parental consent.[261] The vision of parental-rights absolutism articulated in the 1970s may have comparably broader appeal today: Mahmoud v. Taylor, a 2025 case on parental opt-outs, began with organizing by the conservative advocacy group Moms for Liberty but captured the support of a more diverse group of plaintiffs.[262]

Yet, support for the principle of parental consent obscures disagreement about why and when the law should require parental involvement. We submit that the long history of struggles over parental involvement, even though it provides no unified approach over time, provides a helpful starting point for sorting through a range of contemporary conflicts. In Part III, we draw on history to develop principles that both courts and lawmakers can apply in evaluating conflicts between minors and parents on the issue of parental involvement.

III. Applying the Lessons of History Today

Whether they are operating in courts or in legislatures, those who claim to defend parental rights may appear to draw on a well-established common law tradition requiring parental involvement in critical decisions regarding children. In truth, as we have shown, there was no such clear tradition—the common law on parental involvement was nuanced, complex, and sometimes contradictory. When parental involvement was at issue, judges, like Justice Story in United States v. Bainbridge, seemed to draw a line between beneficial and harmful agreements without consistently defining what qualified as beneficial, all while recognizing that a “mature” minor might have distinct interests.[263] Moreover, the common law cases rarely involved explicit clashes between parents and children.[264]

Statutes and judicial decisions cannot simply point to the past to justify unyielding, contemporary parental involvement requirements. During that past, courts and other stakeholders increasingly acknowledged the importance of minors’ autonomy, especially for mature minors, even as they recognized that the goal of parental involvement was to protect minors. In short, these decision-makers did not approach the issue as a clash of absolutes but asked when and whether parental involvement advanced minors’ welfare.

Understanding the history of parental-involvement law provides the basis for a more thoughtful approach, built on considered analysis of the justifications for and against parental involvement in particular types of decisions. In what follows, we draw on that history to propose a framework for decision-makers considering whether and when to mandate parental involvement if parents and children disagree.

A. The Parental Involvement Framework

Our history counsels that parental involvement is the general rule with respect to decision-making regarding children, but that this rule is intended to support a particular end: supporting minors’ well-being. Consonant with this, we believe that in any framework for assessing issues of parental consent, the overarching goal must be supporting minors’ welfare—the end asserted for parental involvement in the early common law, in constitutional doctrine, and by reformers in social movement struggles in the 1960s and 1970s. Child well-being is also the aim that theorists of family law have been increasingly identifying as the emerging consensus goal for the regulation of children in our own era.[265] As we explain below, we favor a default rule of parental involvement because parental decision-making usually best serves children’s welfare.

But given that parental involvement is not an end in itself but rather a means to support children’s welfare, we recognize that parental involvement does not always serve this end. Indeed, in this Section, we identify two specific exceptions to the rule of parental involvement that history helps us identify.[266] Each of these exceptions operates separately and is based on its own distinct rationale for why minors themselves should be able to have a say in specific situations. The first exception is based on harm avoidance. This exception recognizes that there are particular decisions for which a parental consent requirement will result in harm to minors by preventing them from accessing necessary care or resources. Allowing a minor to consent in such cases reduces harm and thereby furthers the overarching goal of serving minors’ well-being. The second exception, meanwhile, turns on respect for minors’ autonomy. This exception recognizes that some decisions are so intrinsically personal and so centrally implicate one’s autonomy that the person themself—even if they are a minor—has a strong claim to making them. In decisions for which a minor has such a strong claim, history teaches us that an ironclad rule of parental consent is inappropriate.

Our history not only points us toward substantive principles for determining who should make certain decisions but also yields lessons regarding which types of evidence decision-makers should turn to in determining when each exception applies. The first of these lessons counsels against simply accepting vague assertions about the benefits of parental involvement; instead, empirical evidence must be carefully consulted. The second lesson makes clear that parental involvement requirements often have very different effects on different populations of children, particularly those who are the least privileged by other axes of power. For this reason, the well-being of disadvantaged children must be consulted in assessing the impact of parental consultation.[267] In the next Section, we explain this parental involvement framework in detail, turning first to the default rule before exploring its exceptions.

B. The Default Rule: Parental Involvement

History points us to the proposition that the overarching goal of promoting child welfare is generally best fulfilled through a default rule of parental involvement.[268] This requirement is consistent with the early common law, which recognized that a general rule of parental involvement supports parents’ responsibilities to ensure the well-being of their children, as well as to “maintain and educate them.”[269] That law also appreciated that parents were often better positioned than children—particularly in their early years—to make decisions in children’s best interest because of their greater maturity.[270] Such a rule further squares with Supreme Court decisions recognizing the nation’s “strong tradition of parental concern for the nurture and upbringing of their children.”[271]

Such a default rule is also grounded in the recognition that someone has to make decisions regarding children, and that among the available contenders—parents, children themselves, doctors, and the state—parental decision-making generally serves children’s interests best.[272] Take medical care as an example. Medical decisions are often unclear and complex; parents, who tend to have more experience and more mature judgment, are generally better positioned to make these decisions than children themselves.[273] Parents are also generally better positioned than the state or physicians to determine what will benefit their children because they know their child best, love them most, and are most motivated to pursue their best interests.[274]

1. Two Exceptions to the Default Rule

The goal of supporting children’s welfare provides the rationale for our first exception to the general rule of parental involvement, the harm-avoidance exception. It exempts those situations in which a parental consent requirement will itself cause harm to minors by preventing their accessing care or resources they need. Our second exception, meanwhile, derives from another good besides child well-being that is generally given pride of place in our system of law and has increasingly been recognized as important to minors: autonomy.[275] The autonomy exception recognizes that there are particular decisions that are so central to minors’ interest in self-determination that minors have a strong claim to be able to make them for themselves. Even if the autonomy exception applies, however, minors’ welfare—the reason that we ordinarily give parents rather than children decision-making rights regarding minors—must of course still be factored into the determination.[276] This means that legislators and judges will need to balance minors’ autonomy interests against any harm that could arise from allowing minors to make such a decision. For this reason, although the harm-avoidance and autonomy exceptions operate separately from each other, both require decision-makers to take account of minors’ well-being. This overlap should not be surprising since minors’ well-being is both the overarching goal of our framework and the reason that minors’ autonomy interests are sometimes constrained.

If the conditions of the harm-avoidance exception are met, the minor should be able to consent by themselves, provided that they have the basic understanding to consent. In such a case, inquiry regarding whether the autonomy exception applies will be unnecessary. Meanwhile, determining that the prerequisite conditions to the autonomy exception apply does not mean that the minor will automatically be able to make the decision for themselves. Meeting the prerequisites establishes only that the minor has a strong claim to make the decision themselves that legislators and judges should seek to protect. To safeguard minors from potential harm to their well-being, however, they should be allowed to make the decision themselves only if they cannot be harmed by making it or they are mature enough to balance the potential tradeoffs themselves. If neither is the case, legislators or judges should seek ways to support minors’ involvement in making the decision while still installing the guardrails necessary to protect them from making an improvident decision.

a. Exception One: Harm-Avoidance

‍The harm-avoidance exception to the default rule of parental involvement applies to situations in which requiring parental involvement would deter minors’ access to care or resources critically important to their well-being. This exception derives directly from the overarching goal of promoting children’s well-being. This same rationale of pragmatic harm reduction was invoked by advocates and legislators urging reforms in the 1970s.[277] It was this effort that led to the revocation of parental consent requirements for treatment for gonorrhea in the 1970s,[278] and which also caused roughly half of states to allow access to birth control without parental consent.[279] It also caused most states to allow older minors to consent to mental health services.[280] To satisfy the conditions for this exception, three questions must be answered affirmatively.

Does the requirement of parental consent deter access to the resource by a significant portion of the minors who seek it?

A requirement of parental consent might deter access to a particular good or service for a substantial portion of the group that seeks it for two different reasons. First, a minor may simply not want to ask the parent for consent and therefore will be unable to access it. Second, a minor may ask a parent for consent but be denied. This question is answered by identifying whether a significant portion of minors, or some identifiable subgroup thereof, is deterred by either or both reasons.[281]

Do the risks of harm to minors from being denied access to the resource far exceed the harms that would result from them accessing the resource?

To answer this question, the risks to the minor from failing to access the resource must be compared with the risks of accessing it. Treatment for the sexually transmitted infection of gonorrhea is an example. In the absence of treatment, serious health problems like pelvic inflammatory disease and infertility may result. Treatment with antibiotics can lead to complications but is considered much less risky than allowing the infection to go untreated.[282]

Assessing the risks of harm from accessing or failing to access the resource is always premised on a set of values regarding what constitutes well-being. In many cases, such decisions about the risk of harm will not be controversial. For example, determinations of harm based on the value of physical health have widespread consensus. We do not here consider the difficult issue of how to resolve disputes that arise over contested values regarding children’s well-being except to note two things.[283] First, disputes over well-being should focus only on the well-being of the child; the well-being of others, or the morality of the parents, may have a role in many decisions, but they are distinct from the well-being of the child. Thus, the view of a parent that abortion is immoral should not properly enter into the calculus of harms relating to a teenager’s access to abortion. Second, to the extent that the value judgments of parents or others may influence determinations of harm to the child, like all determinations, these should be checked against empirical evidence. For example, some parents may oppose birth control access because they believe contraceptive access causes moral harm by encouraging premarital sex, yet empirical evidence fails to support that claim.[284]

Does the minor have at least a basic understanding of what they are consenting to?

Finally, the minor must have at least a basic understanding of what they are consenting to, in the sense that they understand the risks associated with accessing the resource, as well as have a basic understanding of how to use the resource in question. Returning to the example of the youth seeking treatment for gonorrhea, the young person must understand the basic risks associated with antibiotic treatment, how to administer the prescribed treatment, and what to do if side effects emerge.[285] If these conditions are met, minors should be allowed to consent to the particular course of action without parental involvement.

As the history we recounted shows, determining whether and when parental involvement undermines minors’ welfare is not always obvious.Accordingly, empirical evidence must be carefully consulted in determining whether this exception applies.[286] This includes considering evidence on each of the three elements set out above: whether a parental consent requirement deters minors from accessing care or resources, the harms to teens resulting from being denied such access, and the extent to which minors have the basic understanding necessary to consent.

Empirical evidence should also be considered to determine whether parental consent requirements disparately affect different groups. History makes clear that parental involvement requirements often have very different effects across different populations of children, particularly those who are the least privileged.[287] For this reason, particular attention must be paid to the effects that parental involvement requirements have on groups of children who are already disadvantaged. As feminists, civil libertarians, and doctors recognized in the 1970s, for example, parental consent requirements on birth control left young women far less able to protect themselves against pregnancy compared to their male peers, who could easily purchase condoms to protect themselves.[288] They also recognized that limits on access to contraceptives disproportionately affected young Black women.[289]

We acknowledge that evaluating empirical evidence is hardly straightforward. In recent decades, social movements across the ideological spectrum have launched new research initiatives—sometimes with the stated goal of advancing an existing policy agenda, such as criminalizing abortion.[290] The politicization of evidence has vastly complicated the task of legislators and judges trying to distinguish valid research from studies that are twisted to produce a specific result.[291] Despite this, there is a rich body of literature advising courts and legislators on how to evaluate the quality of expert evidence. The politicization of evidence, in our view, is a reason to try harder to identify and rely upon the best empirical evidence.

b. Exception Two: Autonomy

The harm-avoidance exception applies in those situations in which minors would clearly benefit from access to the resources or care at issue. But even in situations where there is no certainty of a clear benefit, there are circumstances where minors’ autonomy interests are significantly impacted. Our second exception applies to these situations.

As the history we have recounted illustrates, some decisions are so intrinsically personal and so centrally implicate one’s autonomy that the person—even if they are a minor—should be allowed to make them in the absence of strong reasons to the contrary, so long as they are sufficiently mature. While early post-Roe determinations were couched in terms of minors’ constitutional rights to privacy, these decisions also recognized that minors’ autonomy rights were particularly strong in decisions that would have a profound impact on their lives.[292]

Resolving issues involving the autonomy limit requires that legislators reach answers to anywhere between one and four questions. This complexity results from the need to balance the minor’s autonomy interest in making a particular decision against potential risks to the minor’s safety. The first question simply asks whether the decision at stake meets the two prerequisite factors that demonstrate that it seriously implicates the minor’s autonomy. If not, then the default rule of parental involvement should apply. Otherwise, if the prerequisite factors are met, legislators should continue the inquiry to consider issues relating to minors’ well-being. This brings us to the second question: Does the decision pose a risk of significant harm to the minor? If it does not, the minor’s autonomy interests should govern, and they should be able to make the decision for themself. However, when allowing minors to make the decision would present a risk of significant harm, legislators should then ask a third question: Are some minors sufficiently mature to make the decision? If so, mature minors should be given the right to consent. To the extent that they are not, though, legislators should conduct one more inquiry that seeks to preserve minors’ autonomy while still safeguarding their well-being: They should ask whether there are ways to preserve the minor’s autonomy to the extent possible while putting in place guardrails to protect them from potential harm. We discuss each of these inquiries in detail below.

Under the autonomy exception, empirical evidence will bear on how profoundly a particular decision will affect a minor’s life course, whether harm may result to the minor if they are allowed to make the decision, whether the minor has the maturity to make the decision, and the likelihood that, with respect to particular types of decisions, parents will recognize and act in their children’s best interests.[293] We observe that history offers a considerable number of cases that show parental involvement requirements can have unintended—and profoundly negative—consequences on children’s well-being. Lawmakers should test their assumptions about the benefits of parental involvement against the best available evidence.

Question 1: The prerequisites: Does the decision seriously implicate autonomy concerns, and is it time sensitive?

We believe that two prerequisite circumstances must be present to invoke the autonomy limit. First, the decision must deeply and seriously implicate minors’ autonomy interests. Of course, all decisions regarding minors inherently implicate minors’ autonomy to some extent. But only a few would implicate interests centrally associated with autonomy in our society—those that cut so deeply to the core of who we are as a person and how we choose to live our lives. The latter will include fundamental determinations about one’s body. In our culture, one’s body is not just a container for the “real” person within; instead, the body is intrinsically related to one’s very subjectivity—it is the embodied subject—the “I.”[294] Courts invoke this concept when they insist that one’s body is uniquely one’s own to make decisions about, subjecting even minimal invasions of one’s body to the highest degree of scrutiny.[295]

‍ ‍

The second prerequisite is that the decision must be time sensitive. As opinions in the 1970s on abortion pointed out, minors’ claims to be able to make decisions for themselves are strongest where the decision is time limited; that is, the decision either would not be available at all once the minor reaches adulthood, or its benefits would be significantly diminished.[296] Otherwise, minors’ autonomy interests need not be weighed as heavily since minors can simply wait until they reach the age of majority to exercise their choice.

Consider conflicts over whether female minors should be able to access birth control. If they are not allowed access, they are at considerable risk of becoming pregnant if they engage in sexual activity. This would have significant consequences for their identities and futures, and for control over their bodies, during and beyond pregnancy. Further, whether they gain access to birth control is time sensitive: If they must wait until they are eighteen to gain access to contraceptive care, their likelihood of pregnancy goes up considerably. Waiting to access birth control, therefore, comes at a considerable cost. Decisions like these, which centrally implicate autonomy, require further legislative consideration before imposing rules of parental consent. Accordingly, legislators should consider question two.

Contrasting the decision of a minor’s access to birth control with the decision to get a body piercing or a tattoo helps flesh out these conditions. Neither of the latter situations would satisfy our prerequisites. First, although both are decisions regarding the minor’s body, neither will have profound effects on the minor’s bodily control, nor will the minor’s inability to get a tattoo or body piercing deeply implicate the minor’s identity (although some teens may see these situations that way). Neither will these procedures be likely to significantly affect the minor’s future life course. Second, neither of these decisions is particularly time sensitive. Minors who want to get body piercings or tattoos will be able to get them when they turn eighteen without experiencing significant penalties. Accordingly, these decisions do not meet the prerequisites for the autonomy limit, and parents should have decision-making authority.

Question 2: Does the decision pose a significant risk of harm to the minor?

When the autonomy prerequisites are met, legislators have presumptive reasons to allow minors to make the relevant decision for themselves. However, this does not end the inquiry. The reason we generally do not allow minors to make important decisions for themselves is the concern that they lack sufficient maturity to make decisions in their best interests, thereby risking harm to their well-being. The second step in the inquiry regarding the autonomy limit, then, is to ascertain whether the decision at issue poses a risk of significant harm. If it does not, the minor’s autonomy interests should govern, and they should be able to make the decision for themself.

Take the issue of whether a minor should be able to deny receiving treatment for leukemia. This situation meets our prerequisites for applying the autonomy limit: The decision is central to the minor’s autonomy interests, as it significantly implicates the minor’s body and future life course, and it is time contingent. Nevertheless, this decision profoundly risks harm to the youth. In such a case, we do not believe that the decision should automatically be turned over to the minor because of the prospect of harm. Nevertheless, we believe that the minor’s interest in autonomy in these decisions warrants further inquiry. Legislators should therefore consider question three.

Question 3: Is the minor sufficiently mature to make the decision themself?

When allowing minors to make the decision would present them a risk of significant harm, legislators should engage in a third step: considering whether particular minors are sufficiently mature to make the particular decision for themselves, either as a group (for example, at ages fourteen and older) or individually (for example, based on the assessment of a physician). The necessary level of maturity will not be the same for all types of decisions but should vary with the complexity of the decision and the level of risk involved. In determining the level of maturity required to make the decision, legislators and courts should take into account only the capacity needed for the minor to safeguard their own well-being, including physical and mental health risks.[297]

Why require more focused maturity determinations than we demand for most other decisions relating to a minor? In our legal system, we treat those younger than eighteen differently from adults for most decision-making purposes based on the theory that doing so as a general rule protects minors’ welfare.[298] We do this even though there is nothing magical about one’s eighteenth birthday that means that people suddenly gain capacity that they have lacked before; despite the fact that some decisions require less maturity to make, and most younger minors could likely make them; and although it is clear that some minors develop the capacity for mature reasoning well before others do.[299] We use age eighteen as the dividing line on the view that the gains in administrative convenience from treating all minors as immature exceed any harm to minors’ interests from not being able to make decisions they might otherwise make.[300] However, we believe that situations that deeply implicate minors’ autonomy require rolling back this general rule in favor of more individualized or age-grouped determinations of maturity.[301] Those minors deemed to be mature should be allowed to make the decision themselves. For those who are not, legislators should consider question four.

Question 4: If the minor themself is not mature, are there ways to preserve their autonomy while protecting them from potential harm?

To the extent that some minors are deemed not to have the maturity necessary to make the relevant decision, a fourth and last step of our autonomy exception seeks to reconcile minors’ welfare interests with their autonomy interests. This step calls for legislators to seek ways to ensure that minors have some say in the ultimate determination, while still ensuring the decision made is in their best interests. In promoting minors’ best interests, legislators should also consider that, for some types of decisions, parents may not reliably be expected to serve the minor’s best interests, particularly in the context of decisions with respect to sexuality, gender identity, and reproduction. When crafting legislation, especially in areas of cultural conflict, legislators should, if possible, create a process that seeks to protect both minors’ autonomy and well-being.

Part III.C involves the application of the framework to legislation. Because parental involvement considerations are not unique to cases that deal with legislation, Part III.D turns to common law settings.

C.      Applying the Framework: Legislation

We explore how this framework would address three critical contemporary legislative proposals involving access to abortion, gender-affirming medical care, and social media, before we turn to application in the common law context with access to mental health treatment. Our framework, we hope, will be both faithful to the basic goals that animate the history of parental consent law, as well as better able to illuminate when parental involvement is beneficial—and when it may have devastating consequences.

Case 1: Abortion

Abortion has long been one of the most politically controversial issues that arises with respect to parental consultation. In applying our framework, however, it becomes clear that the law should assign abortion decisions to minors themselves.[302]

Under our proposed framework, we first consider whether the empirical research establishes the conditions necessary to meet our harm-avoidance exception. To satisfy the conditions for this limit to apply, a parental consent requirement must, first, deter minors’ access to abortion. Abundant research shows that parental consent laws limit access to abortion and have been associated with minors’ decreased abortion rates, as well as with increased birth rates, indicating that the laws have a deterrent effect on access for minors.[303] One study of the effects of Texas’s parental notification law found that abortion rates fell by 11 percent among fifteen-year-olds; 20 percent among sixteen-year-olds; and 16 percent among seventeen-year-olds, relative to the rates among eighteen-year-olds.[304] Often, teens who want abortions are unwilling to tell their parents and thus have to travel further to access them, a particularly difficult burden for low-income teens to shoulder.[305] In the wake of Dobbs, teens seeking abortion have to travel even vaster distances—for example, the average Florida resident now lives about 590 miles from the nearest clinic that offers abortions after six weeks.[306] We expect that the effect of parental involvement laws will only grow in the years to come as states enact more restrictive abortion bans, so that travel is the only way to obtain access to abortion. Restrictions may also take the form of penalizing anyone who helps the minor obtain the abortion.[307]

Note that parental involvement laws impose the same burdens even if they require a judicial bypass process. Research shows that bypass provisions—which allow pregnant teens to go to court to show either that they are mature enough to make the abortion decision themselves, or that an abortion is in their best interests—have largely been passed to thwart teenagers’ access to abortions,[308] and they have been relatively successful in achieving this goal.[309] Even when the judge approves the teen’s abortion, the bypass process often causes significant delays, which ensure that some pregnant teens will no longer meet gestational caps for obtaining medication abortion and must undergo more expensive and invasive surgical procedures, that more teens will have less safe second trimester abortions instead of first trimester ones,[310] and that some pregnant teens may no longer legally obtain an abortion because they are beyond the gestational cap altogether.[311]Moreover, post-Dobbs, many minors must attempt to travel to and navigate the judicial bypass process in another state. This requires arranging transport, logistics, missing school, and more.[312] In practice, these hurdles deter minors from accessing the process at all.[313]

Research also shows the presence of the framework’s second condition for applying the harm-avoidance exception: Carrying an unwanted pregnancy to term subjects virtually all minors to a range of significant medical risks and harms. The physical risks associated with carrying a pregnancy to term for women generally are far higher than those associated with abortion;[314] furthermore, teens experience a twofold higher risk of death from pregnancy and birth than do adults.[315] These risks are highest for young teens who are most likely to be declared immature in the bypass process.[316] Moreover, risks of death from pregnancy and birth are significantly higher for Black women than white women, regardless of age, income, or education.[317]

In addition, research shows that being forced to bear a child takes a considerable toll on pregnant women’s long-term life prospects, especially for minors. Demographer Diana Greene Foster, in her Turnaway Study, compared women able to access abortions with similarly situated women denied abortions due to passing the state’s gestational cap, and followed both groups over time.[318] Five years later, women denied abortions were far less likely to have met their education goals or be able to afford basic family necessities, like food and housing.[319] They were also significantly more likely to have stayed with violent partners, putting themselves and their children at risk.[320] The Turnaway Study focused on adult women, but research suggests that adolescent mothers face additional harms. They are far less likely than their peers to finish high school;[321] more likely to experience mental health problems, including depression, substance abuse, and post-traumatic stress disorder;[322] and more likely to experience poverty.[323] We observe that these effects fall most heavily on communities that are already vulnerable—a critical consideration in our harm analysis.[324]

Meanwhile, the risks of harm to minors who access abortions are minor compared to those associated with childbirth. Legal abortions are exceedingly safe; severe complications occur in no more than a fraction of a percentage of patients.[325] Further, scientific research has generally failed to support claims that abortion causes emotional harm.[326]

Finally, the third condition under our framework is met because minors have a basic idea of what they are consenting to when deciding to have an abortion. Research suggests that most minors, by the middle of adolescence, are similar to adults in their competence to make the abortion decision.[327] What about earlier in adolescence? There are few studies that consider younger adolescents’ decision-making ability in the abortion context, largely because so few minors of this age get pregnant.[328] Younger adolescents in laboratory experiments showed somewhat less ability to problem solve and somewhat less ability to consider the future consequences of their decisions.[329] Neither of these findings suggests that even younger minors lack the basic understanding of what they are consenting to, as required by our harm-avoidance exception. Indeed, as one expert noted, “[g]iven the evidence that pregnancy continuation poses far greater psychological, physical, and economic risks to the adolescent than does abortion . . . it would be a curious choice to restrict adolescents’ abortion rights on grounds of competence.”[330] Accordingly, all the conditions for the harm-avoidance exception to consent to abortion apply. This means that pregnant minors should be able to consent by themselves for abortion.

While the harm-avoidance exception answers the question of whether minors should be able to consent, to demonstrate the analysis of the autonomy exception, we will also consider its application to abortion. Both prerequisites for the autonomy exception clearly pertain. First, pregnant teens’ interests in autonomy over their bodies and lives are deeply implicated in the abortion decision, perhaps more deeply than in any other decision that they may make throughout their lives. There are few events more significant to one’s body and one’s subjectivity than the transformations that attend pregnancy and giving birth.[331] Furthermore, as the empirical evidence shows, few, if any, decisions will have so massive an effect on a person’s future as the decision to bear a child.[332] Forcing this decision on a minor will irrevocably and deeply limit their ability to direct their life course without giving the minor a say.[333]

Moreover, minors have only a short time to make a decision about pregnancy. “A minor not permitted to marry before the age of majority is required simply to postpone her decision,” Justice Blackmun explained.[334] “A pregnant adolescent, however, cannot preserve for long the possibility of aborting, which effectively expires in a matter of weeks from the onset of pregnancy.”[335] Thus, in our view, both prerequisites to the autonomy limit—serious autonomy concerns and time sensitivity—are met.

With the prerequisites met, minors themselves should be allowed to consent to abortion if it presents no risk of significant harm to the pregnant minor. As we stated earlier in our discussion of the harm-avoidance exception, access to abortion presents no significant risks to the minor’s well-being; indeed, the risks to the minor’s well-being relate to continuing the pregnancy. Accordingly, the autonomy exception applies as well.

In sum, our framework strongly favors pregnant minors being able to consent by themselves to abortions. This determination also makes other restrictions that states impose on teens’ abortions impermissible. Moreover, states should not seek to criminalize those who assist minors’ travel to other states for purposes of obtaining an abortion, or those who advise minors about abortion options in other states.

Case 2: Gender-Affirming Care

The Supreme Court recently upheld a state law banning gender-affirming care for minors, even with the consent of a parent, on a challenge under the Equal Protection Clause.[336] We note, however, that the Court did not resolve an equally important issue central to this Article: whether such bans violate parents’ rights.[337] Indeed, in the wake of Skrmetti,states are deeply divided on this issue, and twenty-three states still permit gender-affirming care for minors.[338] In these states, complex questions arise regarding whether minors themselves should be able to access such care in consultation with their physicians, or whether parental involvement should be advised or sometimes required. Our framework helps resolve these claims.

Should the default rule of parental consent apply to gender-affirming care? Considering the harm-avoidance exception first, parental involvement requirements would likely block a number of minors from seeking gender-affirming care.[339] Further, empirical research, although limited, suggests that gender-affirming care may prevent significant harm to a substantial number of the youths who seek it.[340] But the American Psychological Association notes that empirical evidence suggests that “there is no single [best] trajectory of development” for adolescents who have gender identity concerns.[341] Indeed, the World Professional Association of Transgender Health (WPATH), an organization whose Standards of Care are largely followed in the United States, stresses that “the emerging nature of knowledge regarding adolescent identity development” makes an individualized approach to care necessary.[342]

When we consider the potential harms of these treatments, other difficult questions emerge because of the intense politicization of the science related to this issue[343] and the absence (at this point) of long-term studies. Some research, for example, suggests that puberty suppressants may decrease bone density, increasing later risk of osteoporosis, particularly when they are started early.[344] But long-term studies of the effects of these drugs are still needed.[345] Meanwhile, other studies indicate that hormone therapy may raise the risk of infertility.[346]

Research suggests that gender-affirming care will provide distinct and valuable benefits to some minors.[347] Our framework for applying the harm-avoidance exception, however, is intended to cover only those types of care and resources that yield real benefits for the minor without involving complex tradeoffs. When the exception applies, it allows minors to make decisions without parental involvement in every instance. Given the state of existing research, we cannot say that gender-affirming care meets our harm-avoidance exception.

One can make a much clearer case that gender-affirming care meets the prerequisite conditions for the autonomy exception. Gender-affirming care deeply implicates minors’ autonomy interests. In the contemporary United States, gender identity is central to our conception of ourselves.[348] Having control over whether our body comports with our gender identity therefore is closely and deeply linked with both our physical autonomy and our personal autonomy to direct the course of our lives.

Our second autonomy prerequisite—that the decision must be time sensitive—is met for most, but not all, types of gender-affirming care. If puberty blockers are not begun relatively early in puberty, secondary sex characteristics will develop that cannot be easily altered if a youth transitions later.[349] The decision regarding hormone treatments is also time sensitive, although perhaps not quite as much as puberty suppression, because delaying puberty until mid to late high school can have documented psychosocial implications for older adolescents.[350] In contrast, gender-affirming surgery is less time sensitive given that youths can generally socially transition without it, that chest binding is possible for trans teens, and that the surgery can readily be performed when teens reach the age of majority.[351] We therefore exclude surgery from the types of gender-affirming care to which the autonomy limit applies.

Both puberty suppressants and hormone treatments, however, do meet the prerequisites for invoking the autonomy exception. That means the decision so critically implicates the minor’s autonomy that they have a strong claim to making it themselves. We therefore turn to the second step for this exception, whether access to these treatments raises significant risks of harm. Currently, as we explained, the empirical research regarding the long-term risks of these treatments is rapidly evolving and still somewhat uncertain, and political backlash has clouded some of the research that has started to emerge.[352] While acknowledging that some minors have clearly benefitted from gender-affirming care, we think that existing research is not clear enough to support the conclusion that all minors can and should proceed without consulting their parents.

We therefore turn to the third step of the autonomy inquiry to consider whether at least some minors are sufficiently mature to make these decisions on their own. The question of whether older minors are mature enough to make the decision to pursue treatment is complicated, given the complexity involved with weighing the risks of future harm and rapidly changing empirical evidence on risks and benefits involved with both puberty suppressing drugs and hormones. While there is no doubt that some studies have shown that early medical intervention produces positive results over time for trans and gender-diverse adolescents as a group,[353] precisely which individuals will benefit—and when or to which treatments—is the subject of ongoing research and debate.[354] Consequently, the fourth question becomes relevant.

To the extent that minors are deemed to lack the maturity necessary to make decisions about gender-affirming care, the last step of our guidelines calls for consideration of measures to reconcile minors’ interests in well-being to the extent possible with their interests in autonomy. We do not think there is any legislative resolution possible that perfectly reconciles these two important goals given the complexity of these determinations, the range of families that will be governed by legislation, and the uncertainty of medical knowledge based on current research.

Nevertheless, we believe that there are better and worse ways to ameliorate these tensions. To begin with, we think that legislation regarding parental involvement may profitably distinguish between two possible parental roles: participation in the investigation regarding whether the minor should receive gender-affirming care versus consent to the treatment. A stronger case can be made for considering parental involvement in dialogue about a minor’s course of care than for requiring a blanket parental consent requirement. As WPATH explains, “[w]hen there is an indication an adolescent might benefit from a gender-affirming medical . . . treatment, involving the parent(s) . . . in the assessment process is recommended in almost all situations.”[355]

At the same time, we recognize that notifying or involving parents can inexorably lead to a parental veto in certain cases, especially given that some minors will fear involving their parents, and that some parents will simply refuse to participate in the assessment process. Legislators may choose to address this issue by requiring that minors be advised that they can have this requirement waived if they attest their parents are unavailable or unwilling to engage in the process or, alternatively, that they have a good-faith fear that their parent will retaliate against them or reject them if they notify them about the assessment process.

Considering the difficult issues and unresolved state of the evidence on gender-affirming care, different legislatures may reach different judgments. Legislators might, for example, allow substitute consent by another adult, such as a health care professional who has assessed the situation in collaboration with the child. We acknowledge, too, that this area of research is rapidly evolving—and that as research and diagnostic methods develop, legislators could decide that the risks of such care are minimal enough that at least some minors are mature enough to consent for themselves. Our goal in this paper is to set out relevant frameworks for state decision-making.

Case 3: Online Privacy

Lawmakers across the ideological spectrum have also advanced proposals requiring parental consent before children can access online sites like TikTok, X, Instagram, and Snapchat.[356] We apply our framework to evaluate existing federal legislation on the subject. Unlike the previous case studies, this focuses on commercial activity that has a goal of generating profits rather than on medical care or education.

In 1998, Congress enacted the Children’s Online Privacy Protection Act (COPPA), which is designed to prevent commercial websites from collecting information directly from children under the age of thirteen without the verifiable knowledge or consent of their parent or guardian.[357] COPPA enhances parental involvement in minors’ online decision-making[358] and, in this way, represents an expansion of the traditional parental advice not to talk to strangers.[359] COPPA is not, however, designed to limit children’s internet use or the content that is available online.

Are the limits imposed by COPPA legitimate? COPPA’s presumption is that parental involvement serves children’s well-being. In accordance with the first element of the harm-avoidance exception, COPPA does not prevent minors from accessing necessary care or resources but applies to the collection of personal information.[360] The release of private information during social media use does not constitute the kind of vital access to resources that the exception contemplates. Moreover, there is ample empirical evidence highlighting dangers to minors posed by the release of information online.[361]

The second element of the harm-avoidance exception, which requires finding significant harm to minors from being denied access to the resource, is not met, given that minors can still access the underlying resources.[362] And the third element, that minors have a basic understanding of what their consent means is irrelevant, since COPPA does not prevent access to the websites themselves. Similarly, given that COPPA is concerned only with protecting against personal information release, we should not be concerned about the effects of parental consent across different socioeconomic groups.[363] The harm-avoidance exception accordingly does not apply.

Neither are the prerequisites to the autonomy exception met. Release of personal information for younger minors does not rise to the level of the identity-forming and time-sensitive decision contemplated by our autonomy limit, in which we typically would recommend that minors have a greater say. Parents acting under COPPA are not censoring their children’s access to content. Rather, parents are simply controlling what their children reveal to third parties and, correspondingly, how third parties use that information. As important, parental consent is a means to protecting children, with ample empirical evidence showing the harms to children of inadvertent release.[364] Based on this evidence, we support COPPA as an easy case that justifies parental consent under our framework, given its limited scope.

D. Applying the Framework: Common Law

Courts can also use our framework to determine whether a minor should be able to consent to care or resources when state statutes do not speak to the issue. This Section discusses a common law example involving access to mental health treatment that helps further illuminate when parental involvement is beneficial. Again, we aspire to apply our developed framework in ways that are aligned with the historical lessons relating to parental involvement.

The framework, while novel, comports with how courts have treated parental rights’ claims. The Supreme Court’s description of parents’ rights as “fundamental” originated out of a line of cases that analyzed decision-making regarding children in conflicts between parents and the state, rather than those between parents and children, which is not the focus of this Article.[365] The rationale of these cases turned on the state’s interest vis-à-vis the family under the Constitution’s guarantee of liberty.[366] The Supreme Court has never asserted that allowing minors’ decision-making rights in such conflicts constitutes a breach of parents’ fundamental rights, or that such decision-making must be justified by strict scrutiny because it infringes on parents’ fundamental rights. Indeed, until the recent case of Mahmoud v. Taylor, the Supreme Court had not typically required strict scrutiny analysis even when the state sought to overrule parental decision-making.[367] In fact, the last time that the Supreme Court had squarely addressed parental rights under the substantive due process clause, in Troxel v. Granville,[368] a case concerning whether a parent had the right to keep her child from visiting a grandparent, the Court simply required that lower courts give the parent’s decision “special weight” in making a decision regarding the child’s best interests.[369] Further, even in Wisconsin v. Yoder, the case deferring most to the views of parents in conflict with the state, the Court described ordering the varied interests at stake in children’s education in terms of “a balancing process” among the state’s interests in education, parents’ interests, and children’s interests.[370] In that case, as well, the Court noted that its deference to the parents’ rights turned on the absence of evidence that the children disagreed with their parents’ views, suggesting that such views would be accorded less deference in such cases.[371] Instead, in the cases discussed in this Article, which pit children against their parents, courts have explicitly considered the children’s interests and the children’s well-being.

Case 4: Mental Health Treatment

Take, for example, the issue of whether a minor can consent to mental health care in a state such as Utah, which does not have an applicable statute, or even a general mature-minor statute. Suppose a seventeen-year-old minor secures mental health treatment and is prescribed antidepressants. If a parent files suit for battery based on the minor’s taking the drugs, should a court find that parental consent is required and that the battery suit can proceed?

In this case, our framework weighs heavily in favor of the court finding that the minor could consent under our harm-avoidance exception, provided that the health care professional has reasonably determined that the minor had the capacity to consent to the treatment. The empirical evidence that our framework requires consulting suggests that requirements of parental consent significantly reduce the proportion of minors willing to seek mental health treatment.[372] Research also suggests that a substantial portion of the minors who seek mental health treatment would face a significant risk of harm if they could not access screening and treatment.[373] Young people are experiencing a dramatic rise in mental health disorders, which are associated with risks to immediate and long-term physical health through health-risk behaviors including suicide.[374] These disorders also negatively impact social relationships, education, and employment.[375] Access is particularly vital for at-risk groups, including LGBTQIA+ youth.[376] Further, research suggests that the benefits relating to administering antidepressants for depressed adolescents significantly exceed the potential risks, so long as they are appropriately monitored.[377] Last, but not least, many seventeen-year-olds will have the necessary competence to consent.[378] In this case, assuming that the judge determines that the minor was properly screened to determine the appropriateness of mental health treatment generally and the antidepressants described specifically, and that the teen reasonably understood when she consented to therapy and the antidepressants, the court should dismiss the battery action on the ground that the minor had the legal ability to consent to the treatment.

Conclusion

Requiring parental involvement seems to be a rare point of consensus in state legislatures at a time of deep partisan polarization. And yet, below the surface, profound, unanswered questions remain about when, why, and how to mandate parental involvement in the decision-making of minors.[379]

Courts and legislators may look to history and tradition to answer these questions, but they will not find any easy answers. The common law did not entrench a broad principle of parental authority in minors’ decision-making, instead weighing whether particular agreements were beneficial.

But if history does not supply an easy way out of current debates, it provides a critically important starting point: A reminder that, when the conflict is between parents and their children, while parents often act in the best interests of their children, parental involvement is fundamentally a means of ensuring the best outcomes for minors themselves. We have developed a framework that recovers and builds on the lessons learned by previous generations. We hope that in this way, the lost history of parental involvement helps us better understand when and how the laws of the future can protect children’s well-being.

Copyright © 2026 Naomi Cahn*, Maxine Eichner** & Mary Ziegler‍*** ‍

* Justice Anthony M. Kennedy Distinguished Professor of Law and Co-Director of the Family Law Center, University of Virginia School of Law.

**     Graham Kenan Distinguished Professor of Law, University of North Carolina (UNC) School of Law.

***     Martin Luther King Jr. Professor of Law, University of California, Davis, School of Law. The authors thank Clare Huntington, Ari Ezra Waldman, Emily Gold Waldman, and UNC faculty workshop participants for incredibly helpful comments; Ethan Brown, Carolyn Calder, Robert Fensom, and Ben Stroud for research assistance; and the libraries of Columbia University, Notre Dame, Princeton University, Smith College, University of California, Berkeley, University of California, Davis, University of Michigan, and the University of Virginia School of Law for their support. Authors’ names are listed alphabetically. All authors shared equally in drafting this Article.

          [1].     Nikita Biryukov, Bill Would Allow More Minors to Access Mental Health Services Without Parental OK, N.J. Monitor (Feb. 21, 2024), https://newjerseymonitor.com/2024/02/21/bill-would-allow-more-minors-to-access-mental-health-services-without-parental-ok/ [https://perma.cc/N7A2-NRSP].

          [2].     Illinois, for example, repealed its parental-involvement law in 2021. Sara Burnett, Illinois Governor Repeals Law Requiring Parental Notification on Abortion, PBS News (Dec. 17, 2021), https://www.pbs.org/newshour/politics/illinois-governor-repeals-parental-notification-of-abortion [https://perma.cc/S6UT-73ET].

          [3].     Cal. Educ. Code §§ 220.1, 220.3, 220.5 (West 2025). As this Article went to press, the Supreme Court preliminarily signaled its view that this law violated parents’ constitutional rights in a per curiam opinion issued on the Court’s interim docket. The Court’s decision allowed a district court’s injunction staying the law pending appeal. Mirabelli v. Bonta, 146 S. Ct. 797 (2026).

          [4].     Fla. Admin. Code. Ann. r. 6A-1.0955(8)(m) (2023).

          [5].     Azadeh Moshiri, Utah Is First US State to Limit Teen Social Medica Access, BBC (Mar. 23, 2023), https://www.bbc.com/news/world-us-canada-65060733 [https://perma.cc/QX7B-MPAD]; see also Ethan DeWitt, Republicans Pass Parental-Rights Bill as Democrats Claim That Children Will Be Harmed, N.H. Bull. (June 5, 2025), https://newhampshirebulletin.com/2025/06/05/republicans-pass-parental-rights-bills-as-democrats-allege-children-will-be-harmed/ [https://perma.cc/LE5N-75ES].

          [6].     See, e.g., United States v. Skrmetti, 145 S. Ct. 1816, 1836–38 (2025). The focus in this Article is not on family-state conflicts such as the ones in Skrmetti, but rather on analyzing intrafamily conflicts, especially the history and scope of the general default rule of parental decision-making and its role in furthering child well-being. See infra Parts I–II.

          [7].     These include Columbia University, University of Notre Dame, Princeton University, Smith College, University of California, Berkeley, and University of Michigan.

          [8].     Just what is in the interests of children’s “well-being” with respect to any particular issue will often be contested, and will sometimes turn on social values that, in themselves or in the priority awarded them, may be subject to contestation. In Parts I and II, we simply recount historical claims related to children’s well-being in historical perspective without delving into potential complexities regarding the term. In Part III, when discussing claims regarding when parental involvement will conflict with children’s well-being that are contestable, we suggest that decision-makers consider a range of empirical evidence in making determinations about what policies further children’s well-being. The legislators and judges who make these determinations will of course consider their own socially constructed values in making this determination. One such value that we argue should be incorporated is concern for marginalized groups. See infra Part I. For further explanation of the term “well-being,” see Clare Huntington & Elizabeth S. Scott, Conceptualizing Legal Childhood in the Twenty-First Century, 118 Mich. L. Rev. 1371, 1453–54 (2020) [hereinafter Huntington & Scott, Conceptualizing Legal Childhood];Restatement Of the L., Child. & the L. reporters’ memorandum (A.L.I., Tentative Draft No. 1, 2018). Indeed, as Clare Huntington and Elizabeth Scott, both Reporters of the new Restatement, point out, the reason to emphasize parental rights is because this will generally promote the well-being of children. Huntington & Scott, supra, at 1377; Clare Huntington & Elizabeth Scott, The Enduring Importance of Parental Rights, 90 Fordham L. Rev. 2529, 2529 (2022); see also Anne C. Dailey & Laura A. Rosenbury, The New Parental Rights, 71 Duke L.J. 75, 78–79 (2021) (recognizing the importance of “parental guidance and caregiving”); Anne C. Dailey, In Loco Reipublicae, 133 Yale L.J. 419, 441 (2023) (protecting parental rights “plainly serves children’s broad interests”). Of course, parents may not always be able to protect their children. E.g., Catherine E. Smith, Keynote Speech, “Children’s Equality Law” in the Age of Parents’ Rights, 71 Kan. L. Rev. 539, 545 (2023).

[9].     See infra Part I.A. Throughout this Article, we refer to children as “minors”: those under the age of majority (typically eighteen) who have not been emancipated. See Restatement of the L., Child. & the L. § 4.10 (A.L.I., Tentative Draft No. 6, 2024) (setting out the differing rights of emancipated minors with respect to the state and parental authority). As the Article shows, even within this category, children of different ages may well be treated differently.

[10].     See infra Parts II.A, III.

[11].     See infra Part I.A.

        [12].     See Huntington & Scott, Conceptualizing Legal Childhood, supra note 8, at 1377; Joanna L. Grossman, Who Decides? The Role of Parental Rights in Abortion and Gender-Affirming-Care Decisions for Minors, 135 Yale L.J.F. 237, 238 (2025).

        [13].     Both of these principles—that empirical evidence matters and that decision-makers must attend to whether policies disproportionately harm disadvantaged groups—are well laid out in Clare Huntington and Elizabeth Scott’s article on child well-being. See generally Huntington & Scott, Conceptualizing Legal Childhood, supra note 8. We extend their analysis by showing that both of these principles derive from historical lessons and incorporate them into our framework for determining when parental involvement should be required.

        [14].     Parham v. J.R., 442 U.S. 584, 602 (1979); see also Wisconsin v. Yoder, 406 U.S. 205, 232 (1972) (“This primary role of the parents in the upbringing of their children is now established beyond debate as an enduring American tradition.”).

        [15].     1 William Blackstone, Commentaries *434, *440.

[16].     Id. at *434–35; see also Tapping Reeve, The Law of Husband and Wife, of Parent and Child, Guardian and Ward, Master and Servant 287 n.2, 315 n.1 (James W. Eaton, Jr. ed., 4th ed., Albany, William Gould, Jr., & Co. 1888) (defining necessaries as “whatever is proper and suitable in the case of each individual, having reference to his circumstances and condition in life”).

        [17].     1 Blackstone, supra note 15, at *434–41, *452.

[18].     Id. at 454; Reeve, supra note 16, at 287–88 (including contracts for food, medical care, and even attorneys’ fees for suits for seduction as necessaries).

        [19].     Treatise writers in the nineteenth century recognized the difficulty of articulating an established rule on when minors could enter into binding agreements. Some authorities held that only agreements for necessaries were strictly enforceable, while other agreements were voidable, while other courts held that “an infant’s contracts against his interest are absolutely void, while those which are of uncertain nature or benefit are voidable only, and those clearly for his benefit, as for necessaries, are good.” Reeve, supra note 16, at 314–15 & n.1; The Infants Lawyer: Or, the Law (Ancient and Modern) Relating to Infants 45 (2d. ed., London, J. Nutt 1712) (listing as binding, beneficial contract agreements for necessaries, inheritance, and marriage at age twelve for females and fourteen for males); Peregrine Bingham, The Law of Infancy and Coverture 57 (London, J. Butterworth & Son 1816) (“The law therefore, at the same time that it protects their imbecility from injury through their own imprudence enables them to do binding acts for their own benefit; and without prejudice to themselves, for the benefit of others.”); 1 William Wetmore Story, A Treatise on the Law of Contracts Not Under Seal 106 (Melville M. Bigelow ed., 5th ed., Boston, Little, Brown, & Co. 1874) (“Where the contract may be beneficial to the infant it is only voidable, and may be affirmed . . . by him when he comes of age.”); Ransom H. Tyler, Commentaries on the Law of Infancy 49 (Albany, William Gould & Son 1868) (reasoning that any contract with the “semblance of benefit” to minors would be voidable or binding). For examples of cases on this point, seeRogers v. Hurd, 4 Day 57, 62 (Conn. 1809) (reasoning that “all contracts made by infants against their interest are void, and that all with the semblance of advantage are voidable”); Commonwealth v. Murray, 4 Binn. 487, 494 (Pa. 1812) (“Where the minor has a probable benefit at the time which may result from the contract, he shall not avoid it.”).

        [20].     David M. Rosen, Child Soldiers in the Western Imagination: From Patriots to Victims 45, 48 (2015).

        [21].     This contrasted with suits regarding the desertion of minors who enlisted in the Army without parental consent because Congress, by law, had set the age of majority for enlistment in the Army at twenty-one. See, e.g., Ex parte Mason, 5 N.C. (1 Mur.) 336, 337 (1809) (holding that the written consent of a minor’s mother was required to make an enlistment valid); Shorner’s Case, 22 F. Cas. 8, 9 (D. Pa. 1812) (same); United States v. Anderson, 24 F. Cas. 813, 814 (D. Tenn. 1812) (holding that Congress intended that “the minor should not have any discretion, either as to enlistment or to discharge”); Commonwealth v. Harrison, 11 Mass. 63, 65–66 (1814) (“If a minor is withheld from his parents or guardians against their will, this Court will put him at liberty from such restraint, that he may again come under his lawful governors.”).

        [22].     See generally 24 F. Cas. 946 (C.C.D. Mass. 1816).

[23].     Id. at 947.

[24].     Id.

[25].     Id. at 949.

[26].     Id.

[27].     Id. at 948.

[28].     Id.

[29].     Id.

[30].     Id.

[31].     Id.

[32].     Id. at 951. Precise articulations of this rule varied. Some nineteenth century authorities reasoned that beneficial contracts were binding on minors. Prejudicial contracts were void, and those that were of uncertain effect were voidable but could be ratified by the minor at the age of majority. See, e.g., James Schouler, A Treatise on the Law of the Domestic Relations 532 (2d ed., Boston, Little, Brown, & Co. 1874) (collecting authorities).

[33].     Bainbridge, 24 F. Cas. at 951; see also Morrissey v. Perry, 137 U.S. 157, 159 (1890) (“At common law, an enlistment was not voidable either by the infant or by his parents or guardians.”); The King v. Inhabitants of Rotherfield Greys, 107 Eng. Rep. 128, 130 (1823) (explaining that “a minor shall be at liberty to contract an engagement to serve the state”).

        [34].     4 Binn. 487, 494 (Pa. 1812).

[35].     Id. at 487.

[36].     Id.

[37].     Id.

[38].     Id. at 493–95.

[39].     Id. at 494.

[40].     Id. This view reflected a contemporary perspective on a relatively broad category of items that might qualify as necessaries. See, e.g., Samuel Comyn, The Law of Contracts and Promises 628 (Thomas Huntington ed., N.Y., Collins & Hannay 1831) (defining as necessaries instruction in a useful trade, payment for surgery, and the means to support a family).

        [41].     2 James Kent, Commentaries on American Law 86 (O.W. Holmes, Jr. ed., 12th ed., Boston, Little, Brown, & Co. 1873).

[42].     Id.

[43].     Id.

        [44].     3 Joel Prentiss Bishop, Commentaries on the Law of Marriage and Divorce, and Evidence in Matrimonial Suits § 174 (Boston, Little, Brown, & Co. 1852).

        [45].     Vivian Hamilton, The Age of Marital Consent: Reconsidering Civil Recognition of Adolescent Marriage, 92 B.U. L. Rev. 1817, 1829–30 (2012); Michael Grossberg, Governing the Hearth: Law and the Family in the Nineteenth-Century America 106 (G. Edward White ed., 1985).

        [46].     Nicholas L. Syrett, American Child Bride: A History of Minors and Marriage in the United States 23 (2016). Although the age of majority in most states was twenty-one, the age of consent to marriage was lower (and, in some states, nonexistent). 1 Homer H. Clark, Jr., The Law of Domestic Relations in the United States § 2.10 (2d ed. 1987). And the age of majority differed in some states for males and females. See, e.g., Stanton v. Stanton, 421 U.S. 7, 9, 13–15 (1975) (holding Utah’s 1953 statute establishing age of majority as twenty-one for males and eighteen for females was unconstitutional). The current Utah statute provides eighteen as the age of majority but allows for majority through marriage before then. Utah Code Ann. § 15-2-1 (West 2025).

        [47].     Pool v. Pratt, 1 D. Chip. 252, 254–55 (Vt. 1814).

[48].     Id. at 255.

[49].     Id. at 256.

        [50].     Grossberg, supra note 45, at 106; Hamilton, supra note45,at 1829–31.

        [51].     Francis Hilliard, The Elements of Law 15 (Boston, Hilliard, Gray, & Co. 1835).

        [52].     Marshall D. Ewell, Void and Voidable Acts of Infants, 13 Am. L. Rev. 280, 286–88 (1879); William N. Ethridge, Jr., Note, Contract Relations of the Infant in Mississippi—Disaffirmance of Contracts and Liability for Necessaries, 9 Miss. L.J. 217 passim (1936); see also Case Note, Infants-Contracts-Repudiation of Contract Beneficial to Infant, 31 Yale L.J. 777, 777 (1922) (“The American rule is that infants are bound in quasi-contract for necessaries; specific contracts are voidable.”). Williston explained that “[b]y the fifteenth century it seems to have been well settled that an infant’s bargain was in general void at his election (that is voidable), and also that he was liable for necessaries.” 2 Samuel Williston & Walter H.E. Jaeger, A Treatise on the Law of Contracts § 223 (3d ed. 1959).

        [53].     Williston & Jaeger, supra note 52, § 223; Restatement (First) of Conts. § 13 cmt. a (Am. L. Inst. 1932).

[54].     Compare McAllister v. Gatlin, 60 S.E. 355, 355 (Ga. Ct. App. 1908) (“A contract made with a minor for necessaries is not valid, unless the parent or guardian of such minor refuses and fails to supply him with sufficient necessaries.”), with McLean v. Jackson, 76 S.E. 792, 793 (Ga. Ct. App. 1912) (“The need of the infant, and the failure or refusal of the parent or guardian to supply him are all that need appear. It is not necessary that an affirmative refusal by the parent or guardian, after knowledge of the necessity, be shown,” a rule shown in another case, “where medical services were rendered to a minor in a sudden and dangerous emergency, during the absence of the father.”). See also Cooper v. McNamara, 60 N.W. 522, 523 (Iowa 1894) (“[I]t will be presumed that the minor is subject to the control of the parent, although away from his home, and that the liability of the latter for necessaries furnished the minor continues.”).

        [55].     108 N.W. 94, 95 (Mich. 1906).

[56].     Id.

[57].     Id.

[58].     Id.

[59].     Id. at 95–96.

[60].     Id. at 94–96.

[61].     Id. at 96. In later parlance, he was a “mature minor.”

[62].     Id.

[63].     Id. at 96.

[64].     Id.

[65].     Id.

        [66].     136 N.W. 1106, 1109–10 (Mich. 1912).

[67].     Id. at 1106–07.

[68].     Id. at 1107.

[69].     Id. at 1107–08.

[70].     Id. at 1109–10.

[71].     Id. at 1110.

[72].     Id.

[73].     See id.; Bakker v. Welsh, 108 N.W. 94, 96 (Mich. 1906). Bakker was also cited in a 1928 case allowing a seventeen-year-old to consent to vaccination without parental consent, noting that the child was “of sufficient intelligence to understand” the procedure. Gulf & S.I.R. Co. v. Sullivan, 119 So. 501, 502 (Miss. 1928). This case reflected “one of the earliest uses of the mature minor doctrine” in medical treatment cases. Jessica Quinter & Caroline Markowitz, Judicial Bypass and Parental Rights After Dobbs, 132 Yale L.J. 1908,1942 (2023).

        [74].     Moss v. Rishworth, 222 S.W. 225, 226 (Tex. Comm’n App. 1920), aff’g, 191 S.W. 843, 848 (Tex. Civ. App. 1916).

[75].     See cases cited supra note 74 and accompanying text.

        [76].     222 S.W. at 226.

[77].191 S.W. at 848.

[78].     Id. at 848–49. Moreover, there was testimony that the parents opposed the surgery itself. Id. at 849. The court did recognize the power of the parents’ agent to consent in other situations. In a later Pennsylvania case, the court held that the need for parental consent could be “displace[d] . . . on the ground of cruelty.” Zaman v. Schultz, 19 Pa. D. & C. 309, 312 (Ct. C.P. Pa. 1933) (quoting In re Tuttendario, 21 Pa. D. 561, 563 (Ct. of Quarter Sessions of the Peace 1912) (involving transfusion for a non-family member without parental consent)).

        [79].     Rishworth, 222 S.W. at 227.

        [80].     Id.

[81].     Seeid. Indeed, a later court articulated a different, and entirely pragmatic, reason for requiring parental consent: It was necessary “for the provision of services to minors for the simple reason that minors may disaffirm their own contracts to acquire such services.” Ballard v. Anderson,484 P.2d 1345, 1348 (Cal. 1971).

[82].     Rishworth, 222 S.W. at 227.

        [83].     See generally 126 F.2d 121 (D.C. Cir. 1941).

[84].     Id. at 121.

[85].     Id. at 121–22.

[86].     Id.

[87].     Id.

[88].     Id.

[89].     Id. at 122 (citing Restatement (First) of Torts § 59 (A.L.I. 1935)).

[90].     Id.

[91].     Id.

[92].     Id.

[93].     Id.

[94].     Id. at 123. This would become known as the mature-minor exception. As the First Restatement of Torts phrased the doctrine, “If the child . . ., though under guardianship, is capable of appreciating the nature, extent and consequences of the invasion, his assent prevents the invasion from creating liability, though the assent of the parent, guardian or other person is not obtained or is expressly refused.” Restatement (First) of Torts § 59 (A.L.I. 1934); see Restatement (Second) of Torts § 892A (A.L.I. 1979) (same).

        [95].     Bonner,126 F.2d at 123.

        [96].     On contemporary panic about juvenile delinquency, see generallyJames Gilbert, A Cycle of Outrage: America’s Reaction to the Juvenile Delinquent in the 1950s, at 53–103 (1986) (detailing the fears of Americans that the culture of juvenile delinquency would harm their families).

        [97].     Eric Schaefer, Bold! Daring! Shocking! True! A History of Exploitation Films, 1919–1959, at 246 (1999); see also Gilbert, supra note 96, at 37 (documenting Clark’s campaign).

        [98].     On the Kefauver committee, seeRobert Corn-Revere, The Mind of the Censor and the Eye of the Beholder: The First Amendment and the Censor’s Dilemma 105–20 (2021); David Hadju, The Ten-Cent Plague: The Great Comic Book Scare and How It Changed America 248–53 (2008).

[99].     See generally Frederic Wertham, Seduction of the Innocent: The Comic Book Menace (1955).

[100].     Id. at 390.

      [101].     In 1948, twenty states had such laws, see Hadju, supra note 98, at 366 n.94, though other states would pass similar laws later. For examples, see Alaska Stat. § 65-9-11 (1958) (making it a crime to sell or give away any “horror comic book, crime comic book, sexually indecent comic book, or comic book portraying deeds of brutality and violence”); Wash. Rev. Code § 19.18.010 (1951) (“The publication, and distribution of crime comic books is a basic factor in impairing the moral and mental health of minors.”); Wis. Stat. § 947.08 (1955) (regulating comic books to prevent the “stimulation of juvenile delinquency”).

      [102].     Winters v. New York, 333 U.S. 507, 519–20 (1948) (“Where a statute is so vague as to make criminal an innocent act, a conviction under it cannot be sustained.”).

[103].     See John Edgar Hoover, Our Responsibility to Youth, Juv. Ct. Judges J., Apr. 1952, at 20, 20–22 (arguing that “youth has a tendency to follow the examples of its elders. When parents and older people are apathetic toward lawlessness, how can youth be expected to be otherwise?”).

      [104].     George Gallup, Teen-agers ‘Go Wrong’ Because Parents are ‘Not Strict Enough,’ Pub. Op. News Serv., Nov. 14, 1954.

      [105].     Thomas J. Fitzgerald, NODL States Its Case 280, 281 (June 1, 1957) (on file with Princeton Univ., Mudd Manuscript Libr., ACLU Records, Box 776, Folder 6).

[106].     Id. at 282.

      [107].     ACLU, Censorship of Comic Books: A Statement in Opposition on Civil Liberty Grounds 9 (May 1955) (on file with Princeton Univ., Mudd Manuscript Libr., ACLU Records, Box 776, Folder 6) [hereinafter ACLU, Censorship of Comic Books]; see, e.g., Press Release, Morris L. Ernst, Vice Chairman, ACLU, Your Freedom to Read Is in Danger! (c. 1957) (on file with Princeton Univ., Mudd Manuscript Libr., ACLU Records, Box 776, Folder 6) (arguing that NODL, an “extremist group,” was “campaigning to have books of which it does not approve removed from libraries and bookstores”); ACLU, Statement on Censorship Activity by Private Organizations and the National Organization for Decent Literature (May 2, 1957) (on file with Princeton Univ., Mudd Manuscript Libr., ACLU Records, Box 776, Folder 6).

      [108].     ACLU, Censorship of Comic Books, supra note 107, at 2, 9.

[109].     See, e.g., Harriet F. Pilpel, Minors’ Rights to Medical Care, 36 Alb. L. Rev. 462, 466 (1972) (explaining that “doctors remain fearful of possible consequences of treating a minor without parental consent”); Joanna I. Banker, Comment, Medical Care and the Independent Minor, 10 Santa Clara Law. 334, 334 (1970) (explaining that “few doctors would treat a minor in a non-life-death emergency situation without parental consent”).

      [110].     A student note published in the Harvard Law Review identified no statute imposing criminal penalties onphysicians for failing to obtain parental consent. Note, Parental Consent Requirements and Privacy Rights of Minors: The Contraceptive Controversy, 88 Harv. L. Rev. 1001, 1001 n.4 (1975). Another piece published in 1968 found “no decisions holding physicians or hospitals liable because parental consent was not obtained for nonsurgical treatment.” Nathan Hersey, Minors and Consent, 68 Am. J. Nursing 2396, 2397–98 (1968). Nevertheless, the American Journal of Nursing argued that “consent of the parent is ordinarily required for procedures on minors.” Id. at 2397. Harriet Pilpel and her coauthor noted that failure to obtain consent “may make the physician liable for damages in a civil suit.” Harriet Pilpel & Nancy Wechsler, Birth Control, Teenagers and the Law, 1 Fam. Plan. Persps. 29, 30 (1969). Some statutes granted minors authority to consent to procedures particularly relating to pregnancy. See infra notes 148–150 and accompanying text.

[111].     See Ellen Reese, Backlash Against Welfare Mothers, Past and Present 106–21 (2005); Catherine Powell & Camille Gear Rich, The “Welfare Queen” Goes to the Polls: Race-Based Fractures in Gender Politics and Opportunities for Intersectional Coalitions, 108 Geo. L.J. 105, 118 (2020).

                 As the historian Marisa Chappell has shown, even liberal welfare reformers argued that AFDC incentivized “unemployed and low-earning fathers to desert their children and thereby facilitated family dysfunction in America’s inner cities.” Marisa Chappell, The War on Welfare: Family, Poverty, and Politics in Modern America 3–11 (2012).

[112].     E.g.,Harriet F. Pilpel & Ruth J. Zuckerman, Abortion and the Rights of Minors, 23 Case W. Rsrv. L. Rev. 779, 800 (1972) (“[T]he requirement of parental consent may adversely affect the mental or physical health and welfare of the minor, or perhaps drive her to an underground abortionist or self-abortion.”).

[113].     Aid to Families with Dependent Children (AFDC) and Temporary Assistance to Needy Families (TANF) - Overview, Off. of the Assistant Sec’y for Plan. & Evaluation, https://aspe.hhs.gov/aid-families-dependent-children-afdc-temporary-assistance-needy-families-tanf-overview [https://perma.cc/E75W-4QHX].

      [114].     Michael E. Brown, Race, Money, and the American Welfare State 333–34 (1999); see Karen M. Tani, Welfare and Rights Before the Movement: Rights as a Language of the State, 122 Yale L.J. 314, 325–31 (2012) (discussing the origins of the public welfare program in the 1935 Social Security Act); Serena Mayeri, Intersectionality and the Constitution of Family Status, 32 Const. Comment. 377, 381 (2017).

      [115].     End Chain of Subsidized Illegitimacy, Atl. City Press, Apr. 17, 1963, at 22.

[116].     See Chappell, supra note 111, at 89; see also Julius Paul, The Return of Punitive Sterilization Programs: Current Attacks on Illegitimacy and the AFDC Program, 3 Law & Soc’y Rev. 77, 99 (1968) (detailing state proposals and explaining that “[e]fforts to make it a crime to beget illegitimate children are part of a much larger attack . . . on the public welfare programs (especially AFDC) of our states and nation”).

      [117].     Letter from Nanette Dembitz to Harriet Pilpel (Feb. 3, 1970) (on file with Princeton Univ., Mudd Manuscript Libr., ACLU Records, Box 1145, Folder 14).

[118].     Id. at 2.

[119].     Id.

      [120].     Letter from Harriet Pilpel to Nanette Dembitz 1–3 (Jan. 28, 1970) (on file with Princeton Univ., Mudd Manuscript Libr., ACLU Records, Box 1145, Folder 14).

[121].     Id.; seesupra note 109 and accompanying text.

[122].Letter from Harriet Pilpel to Nanette Dembitz, supra note 120,at 2.

[123].     Id.

      [124].     Harriet F. Pilpel & Theodora S. Zavin, Birth Control, 14 Marriage & Fam. Living 117, 117 (1952).

      [125].     For the Court’s decision in Griswold, see generally Griswold v. Connecticut, 381 U.S. 479 (1965). For more on Pilpel’s views, see supra notes 109–110 and accompanying text; infra notes 126, 128 and accompanying text.

[126].     See Pilpel, supra note 109, at 462 (stressing that “[l]egal road blocks faced by unwed minors in obtaining access to effective methods of fertility control produce tragic results”).

      [127].     Pilpel & Wechsler, supra note 110, at 29.

[128].     See, e.g., Pilpel, supra note 109, at 462–63 (providing evidence that rates of births among teenagers had risen even as births outside of marriage had dropped across other demographics); see also Harriet Pilpel, Notes on Minors’ Rights (c. 1972) (on file with Smith Coll., Sophia Smith Collection, The Harriet F. Pilpel Papers, Box 3, Folder 14) (noting statistics on childbirth outside of marriage and early marriage).

      [129].     Testimony of Harriet F. Pilpel Before the New York Governor’s Commission to Study Abortion 1 (Feb. 29, 1968) (on file with Princeton Univ., Mudd Manuscript Libr., ACLU Records, Box 720, Folder 2).

[130].     Medical Wise 1967 Saw Some Solid Progress, Mia. News, Jan. 1, 1968, at 9.

[131].     State Free of Cases of Poliomyelitis for Third Consecutive Year, Hartford Courant, Jan. 4, 1968, at 9.

      [132].     Leonard Metz, Women Wage War on VD, San Bernardino Cnty. Sun, Jan. 13, 1970, at 1.

      [133].     Paul A. Reichelt & Harriet H. Werley, Contraception, Abortion and Venereal Disease: Teenagers’ Knowledge and the Effects of Education, 7 Fam. Plan. Persps. 83, 83 (1975).

[134].     Measure Would Facilitate VD Control, Modesto Bee, Jan. 21, 1968, at 21.

      [135].     Id.

[136].     Asks Iowa Law to Treat Teens for Venereal Ills, Des Moines Reg., Jan. 29, 1969, at 3.

[137].     Id.

      [138].     Pilpel & Wechsler, supra note 110, at 44.

[139].     Id.

      [140].     On racial disparities to birth-control access in the era, seeJohanna Schoen, Choice and Coercion: Birth Control, Sterilization, and Abortion in Public Health and Welfare 45, 85 (2005) (explaining that Black women lacked access to birth control services and that public health programs separated birth control from other health services, disproportionately reserving contraceptive services for white women, and thereby providing lower quality care for Black women).

[141].     See id.

      [142].     Peter Andreas, Smuggler Nation: How Illicit Trade Made America 202 (2013); see also Andrea Tone, Devices and Desires: A History of Contraceptives in America 107–08 (2001).

      [143].     Tone, supra note 142, at 257. The pill also remained far more expensive than other forms of contraceptive—a fact that limited access for low-income patients. Id. at 257–58.

      [144].     Pilpel & Wechsler, supra note 110, at 43 (quoting a May 1971 resolution of the American College of Obstetricians and Gynecologists).

      [145].     Proposed Testimony of Isa Grant 1 (Mar. 2, 1973) (on file with Princeton Univ., Mudd Manuscript Libr., ACLU Records, Box 1627).

      [146].     Proposed Testimony of Dr. Sarah Morrow 1–2 (Feb. 22, 1973) (on file with Princeton Univ., Mudd Manuscript Libr., ACLU Records, Box 1627).

[147].     Id. at 1.

      [148].     Pilpel & Wechsler, supra note 110, at 31–34.

      [149].     Act of July 4, 1953, ch. 1654, § 1, 1953 Cal. Stat. 3383. See Jon F. Merz, Catherine A. Jackson & Jacob A. Klerman, A Review of Abortion Policy: Legality, Medicaid Funding, and Parental Involvement, 1967–1994, 17 Women’s Rts. L. Rep. 1, 16 (1995). Other states had similar statutes. E.g., id. at 14 (Alabama in 1971 granted pregnant minors the capacity to consent to any medical care); id. at 21 (Georgia in 1971 allowed minors to consent to care other than abortion; Hawaii in 1968 allowed minors to consent to care related to pregnancy, including abortion); id. at 24 (Illinois in 1961 allowed pregnant minors to consent to medical treatments).

      [150].     Pilpel & Wechsler, supra note 110, at 30–33.

      [151].     410 U.S. 113 (1973).

      [152].     Ruth Jane Zuckerman, ACLU, Abortion and the Constitutional Rights of Minors 12 (1973); Pilpel & Wechsler, supra note 110, at 30–33; Pilpel, supra note 109, at 472–87; see also Eve W. Paul, Harriet F. Pilpel & Nancy F. Wechsler, Pregnancy, Teenagers and the Law, 6 Fam. Plan. Persps. 142, 143 (1974) (listing age of consent to pregnancy-related care, venereal disease, and abortion for each state); Pilpel & Wechsler,supra note 110, at 30–33 (same); U.S. Dep’t of Health, Educ. & Welfare, HSA 74-16001, Family planning, contraception, and voluntary sterilization: an analysis of laws and policies in the United States, each State and jurisdiction (1974).

      [153].     The Model Penal Code provided that abortion was justifiable if “the pregnancy resulted from rape, incest, or other felonious intercourse. All illicit intercourse with a girl below the age of 16 shall be deemed felonious for purposes of this subsection.” Model Penal Code § 230.3(2) (A.L.I. 1962). On the role of parental involvement in codification of the American Law Institute (ALI), seePilpel & Zuckerman, supra note 112,at 783 (listing thirteen states with liberalized abortion access statutes, nine with parental involvement requirements in the year that Roe was first argued).

      [154].     The states with liberalized abortion laws that required parental consent were Arkansas, Colorado, Delaware, Florida, New Mexico, North Carolina, Oregon, South Carolina, and Virginia. Pilpel & Zuckerman, supra note 112, at 783 n.16. In Colorado, adding the consent provision was part of a compromise. See Richard D. Lamm, Sam Downing, Jr. & Abraham Heller, The Legislative Process in Changing Therapeutic Abortion Laws: The Colorado Experience, 39 Am. J. Orthopsychiatry 684, 687–89 (1969); see also Alan R. Mitchell, Abortion, Oregon Style, 49 Or. L. Rev. 302, 312 (1970) (discussing the Oregon parental approval process, and pointing out that, notwithstanding the abortion consent requirements, the minor could “decide to have the baby without the consent of anyone, and she can give the baby up for adoption without the consent of anyone”).

[155].     See, e.g., Lamm, Downing & Heller, supra note 154, at 687 (“It was, however, necessary to make some legislative compromises. . . . We added that . . . where a girl was under the age of 18, the parents would have to consent.”).

      [156].     Act effective May 9, 1967, ch. 367, 1967 N.C. Sess. Laws 394; N.C. Gen. Stat. §§ 14-44, 14-45 (1881).

      [157].     Sagar C. Jain & Steven Sinding, North Carolina Abortion Law 1967: A Study in Legislative Process 40 (1968).

[158].     See supra Part I.B.

      [159].     Zuckerman, supra note 152, at 3 (noting that while one state (North Carolina) eliminated the parental consent requirement after Roe, within six months of the opinion, at least five states added new parental consent provisions).

[160].     See supra Part I.B.

      [161].     484 P.2d 1345 (Cal. 1971). Harriet Pilpel was among the amici. Id. at 1346.

[162].     Id. at 1348–49.

[163].     Id. at 1349. The court observed that, while there was no definitive legislative history, “it seems evident the Legislature recognized that an unmarried pregnant minor understandably might be reluctant to seek parental consent for medical care related to her pregnancy and that the parents of such a minor might refuse consent for reasons unrelated to the health of the minor.” Id. at 1350.

[164].     Id. at 1350.

      [165].     In 1953, when the relevant provision was enacted, therapeutic abortion was only allowed in cases where the life of the pregnant woman was threatened and thus, “any such interest of the parents or the state, to the extent that it prevented a medically authorized therapeutic abortion, would be dangerous to the life of the pregnant minor and incompatible with the policy of the abortion law.” Id. The court did note that informed consent from the minor was still a prerequisite. Id. at 1352.

      [166].     See generally In re Smith, 295 A.2d 238 (Md. 1972).

[167].     Id. at 245.

[168].     Id. at 246. Among the few other cases concerning minors and parental consent is a 1970 New York case, in which a physician challenged hospitals’ policies requiring parental consent. The case was widely discussed. See Anthony J. LaFache, Comment, The New York Abortion Reform Law: Considerations, Application and Legal Consequences—More than We Bargained For, 35 Alb. L. Rev. 644, 659–60 (1971) (noting that the case was pending, with the plaintiff indicating he would appeal to the Supreme Court if he was not successful in state court); Abortion Refusal is Made Test Case, N.Y. Times (July 18, 1970), https://www.nytimes.com/1970/07/18/archives/abortion-refusal-is-made-test-case.html. [https://perma.cc/M9CW-NCLA] (discussing same 1970 New York case). In another pre-Roe case involving a minor, the Illinois Supreme Court held that mental illness could not be a basis for a legal abortion under Illinois law. The court did not reach the issue of the minor’s ability to consent on her own, because it focused on whether state law would even permit an abortion at all. People ex rel. Hanrahan v. White, 285 N.E.2d 129 (Ill. 1972).

[169].     See infra Part II.A.

[170].     See infra Part II.B.

[171].     See Mary Ziegler, Personhood: The New Civil War over Reproduction 67–72 (2025).

      [172].     The Court began recognizing children’s rights outside of the reproductive autonomy context even earlier, particularly in Tinker v. Des Moines Independent Community School District, 393 U.S. 503 (1969), and In re Gault, 387 U.S. 1 (1967). Even in Ginsberg v. New York, in which the Court upheld a restriction on selling sexually explicit material to minors, it recognized an “area of freedom of expression constitutionally secured to minors.” 390 U.S. 629, 637 (1968). These cases were cited in later court opinions striking down parental involvement laws as violating minors’ distinct rights.

[173].     See supra Part I.

[174].     See Decline in Parental Authority, Morals Cited in Rise in Youth Crime, S. Neb. Reg., Jan. 19, 1962, at 1, 1.

[175].     See supra Part I.B.

      [176].     Francis X. Weiser, Parents and Delinquent Youth, Cath. Transcript (Conn.), Sep. 3, 1965, at 19.

      [177].     Daniel K. Williams, Defenders of the Unborn: The Pro-Life Movement Before Roe v. Wade 87–99 (2016).

      [178].     Ad Hoc Strategy Meeting of National Right to Life Groups 7 (Feb. 11, 1973) (on file with the Univ. of Mich., Gerald Ford Mem’l Libr., American Citizens Concerned for Life, Inc. Records, Box 4, Folder 1973(1)). For more on a fetal-protective amendment, seeMelissa Murray & Katherine Shaw, Dobbs and Democracy, 137 Harv. L. Rev. 738, 746–48 (2024); Mary Ziegler, After Roe: The Lost History of the Abortion Debate 38–44 (2015).

      [179].     Ad Hoc Strategy Meeting, supra note 178, at 6.

[180].     Id. at 2.

[181].     Id.

      [182].     See generally In re P.J., 101 Daily Wash. L. Rptr. 613 (D.C. Super. Ct. 1973).

[183].     Id. at 615.

[184].     Id. at 616.

[185].     Id. The Court cited In re Gault, 387 U.S. 1 (1967), and Kent v. United States, 383 U.S. 541 (1966).

      [186].     State v. Koome, 530 P.2d 260, 262 (Wash. 1975). The case began in 1972, when a sixteen-year-old pregnant patient sought a court order to allow her to have an abortion. Id. Although her parents and guardian refused to consent, a lower court authorized the abortion. Id. The Washington Supreme Court stayed the lower court ruling and advised the defendant, Dr. A. Frans Koome, of the stay; nonetheless, the abortion went forward. Id. The doctor was not only held in contempt of court but also criminally convicted. Id.See generallyIn re Koome, 514 P.2d 520 (Wash. 1973) (upholding contempt of court finding and fining Dr. Koome $300). According to Pilpel and her coauthors, this was the only criminal prosecution of a physician for violation of the parental consent requirement. Paul, Pilpel & Wechsler, supra note 152, at 147 n.26.

      [187].     Koome, 530 P.2dat 264.

[188].     Id. The court cited to Stanley v. Illinois, 405 U.S. 158 (1972), a case involving the due process rights of a nonmarital father, as supporting parental rights. To show that parental rights were not absolute, the court’s first cited case was Prince v. Massachusetts, 321 U.S. 158 (1944).

      [189].     Koome, 530 P.2d at 264.

[190].     Id. at 265.

[191].     Id.

[192].     Id.

[193].     Id. at 271 (Stafford, J., dissenting).

[194].     Law to Restrict Abortions is Enacted in Pennsylvania, N.Y. Times (Sep. 11, 1974), https://www.nytimes.com/1974/09/11/archives/law-to-restrict-abortions-is-enacted-in-pennsylvania.html [https://perma.cc/VNB3-VALF]. The legislature overrode the governor’s veto. Paul, Pilpel & Wechsler, supra note 152, at 146.

      [195].     Planned Parenthood Ass’n v. Fitzpatrick, 401 F. Supp. 554, 564 (E.D. Pa. 1975), aff’d sub nom.,Franklin v. Fitzpatrick, 482 U.S. 901 (1976); seealso Doe v. Zimmerman, 405 F. Supp. 534 (M.D. Pa. 1975) (reaching same result). The State asserted an interest in “safe-guarding the societal role of parents in the supervision of their unemancipated minor children’ and ‘preserving the family unit.” Fitzpatrick, 401 F. Supp. at 567.

[196].     E.g., Foe v. Vanderhoof, 389 F. Supp. 947, 959 (D. Colo. 1975) (holding in favor of a pregnant minor who argued that a Colorado statute was unconstitutional, because it required an unmarried woman under the age of eighteen to obtain parental consent before she could access abortion care); Doe v. Rampton, 366 F. Supp. 189, 193 (S.D. Utah 1973) (striking down parental consent as infringing the privacy rights of the pregnant person in brief opinion); Wolfe v. Schroering, 388 F. Supp. 631, 636–37 (W.D. Ky. 1974) (pointing to the impermissibility of allowing parents to withhold consent in an arbitrary manner).

      [197].     Fitzpatrick, 401 F. Supp. at 567. While the dissent would have upheld the provision, the judge still recognized that based on Gault and Tinker, “it is by now clear that minors in many circumstances are vested with constitutional rights.” Id. at 588 (Adams, J., concurring and dissenting).

[198].     Id. at 568 (majority opinion).

      [199].     The complaint in Coe v. Gerstein, 376 F. Supp. 695, 696 (S.D. Fla. 1973), aff’d in part sub nom., Poe v. Gerstein, 417 U.S. 281 (1974), was filed prior to Roe, although the initial decision was not issued until afterward. The Coe court struck down the parental consent requirements. 376 F. Supp. at 698. A prior Florida abortion statute had been struck down in early 1972, State v. Barquet, 262 So. 2d 431, 438 (Fla. 1972), and the State responded with the statute challenged in Coe within two months. Act of Apr. 12, 1972, chs. 72–196, 1972 Fla. Laws 608.

      [200].     Coe, 376 F. Supp. at 697.

[201].     Id. at 698.

      [202].     Poe v. Gerstein,517 F.2d 787, 793 (5th Cir. 1975).

      [203].     The court noted that the Supreme Court had not yet “proposed a universal analytical framework for the evaluation of the minor’s claim. . . . As a result, it is possible that either: (1) all fundamental rights apply to minors, but the State may sometimes assert an interest sufficient to justify the state action; or (2) minors do not necessarily have all of the fundamental rights of adults.” Id. at 790.

[204].     Id. at 791.

[205].Tom Rowan, Timely Editorial, Another Victory for Death, Nat’l Cath. News Serv. (D.C.), July 7, 1976, at 22–23; see also Court Decision Criticized by Pro-Lifer, Cath. Transcript (Conn.), July 23, 1976, at 8 (noting that minors needed parental consent for every procedure, including ear piercing, but not abortion). Most of the sources during this period are from Catholic outlets. Until the late 1970s, the antiabortion movement was overwhelmingly Catholic (more Protestants would join following the mobilization of conservative Protestant groups like the Moral Majority in the late 1970s). Williams, supra note 177, at 87–99.

[206].     Court Okays Abortions for Minors, Wives, Without Parents’ or Spouses’ Consent, Nat’l Cath. News Serv. (D.C.), Aug. 22, 1975, at 27.

[207].     See id.

      [208].     Motion and Brief, Amicus Curiae of Dr. Eugene Diamond and Americans United for Life, Inc., in Support of Appellees in 74-1151 and Appellants in 74-1419 at 89, Planned Parenthood of Cent. Mo. v. Danforth, 428 U.S. 52 (1976) (No. 74-1151).

[209].     Id. at 95 (citing Baird v. Bellotti, 393 F. Supp. 847, 860–62 (D. Mass. 1975) (Julian, J., dissenting)).

      [210].     392 F. Supp. 1362, 1370 (E.D. Mo. 1975). For Missouri’s argument, see Brief of John C. Danforth, Attorney General of Missouri at 45–46, Planned Parenthood of Cent. Mo. v. Danforth, 428 U.S. 52 (1976) (No. 74-1151).

      [211].     Danforth, 428 U.S. at 74.

[212].     Id. at 73 (noting that “[p]arental discretion, too, has been protected from unwarranted or unreasonable interference from the State” (emphasis added)).

[213].     Id. at 74.

[214].     Id. The Court cites Tinker v. Des Moines Independent Community School District, 393 U.S. 503 (1969), and In re Gault, 387 U.S. 1 (1967); however, unlike Danforth, these cases did not involve minors acting without parental consent.

      [215].     431 U.S. 678 (1977).

      [216].     Letter from Jerome N. Frank to Frieda Nelson 1 (Sep. 7, 1976) (on file with Princeton Univ., Mudd Manuscript Libr., ACLU Records, Box 1284); see also Brief of the American Civil Liberties Union, Amicus Curiae at 4–5, 8, Carey v. Population Servs. Int’l, 431 U.S. 678 (1977) (No. 75-443) (noting the “wealth of evidence [that prohibiting the sale of contraception to minors] . . . inflict[s] devastating medical and social injury upon the private lives of affected minors”).

      [217].     Carey, 431 U.S. at 692 (citing Gault, 387 U.S. at 13).

[218].     Id. at 694 (citing Danforth, 428 U.S. 52).

[219].     Id. at 695.

[220].     Id. at 693.

[221].     Criticizes Ruling Allowing Minors to Buy Contraception, St. Louis Rev., June 17, 1977, at 6.

[222].     Court’s Contraceptive Ruling Assault on the Family, Clarion Herald, June 16, 1977, at 4.

      [223].     Gerald Lefebvre, Sinking Lower, Cath. Commentator (La.), Dec. 14, 1977, at 5.

[224].     Arrogating Authority, Cath. Transcript (Conn.), Aug. 4, 1978, at 4.

      [225].     Id.

      [226].     Baird v. Bellotti, 393 F. Supp. 847, 856 (D. Mass. 1975), vacated, 428 U.S. 132 (1976).

      [227].     428 U.S. at 147–48.

[228].     Id.

      [229].     Bellotti v. Baird, 443 U.S. 622, 630, 651 (1979).

      [230].     443 U.S. at 635.

[231].     Id. at 639.

[232].     Id.

[233].     Id. at 642.

[234].     Id.

[235].     Id. (observing that the option to terminate a pregnancy naturally expires after a fixed period).

[236].     Id. at 643–44. As the Court subsequently explained in Ohio v. Akron Center for ReproductiveHealth, 497 U.S. 502, 511–13 (1990):

First, the Bellotti principal opinion indicated that the procedure must allow the minor to show that she possesses the maturity and information to make her abortion decision. . . . Second, the Bellotti principal opinion indicated that the procedure must allow the minor to show that, even if she cannot make the abortion decision by herself, “the desired abortion would be in her best interests.” . . . Third, the Bellotti principal opinion indicated that the procedure must ensure the minor’s anonymity. . . . Fourth, the Bellotti principal opinion indicated that courts must conduct a bypass procedure with expedition to allow the minor an effective opportunity to obtain the abortion.

      [237].     On the founding of the Moral Majority, seeDaniel K. Williams, God’s Own Party: The Making of the Christian Right 151–64 (2010).

      [238].     On the surge in new Christian conservative groups founded in the late 1970s, see id. (discussing the Moral Majority). See also Hans J. Hacker, The Culture of Conservative Christian Litigation 7 (2005) (discussing the rise of conservative Christian political influence); Deal Wyatt Hudon, Onward, Christian Soldiers: The Growing Political Power of Catholics and Evangelicals in the United States 10 (2008) (characterizing 1979 as a transitional year in the Religious Right and discussing the founding of various new evangelical organizations at a moment of political backlash).

      [239].     Press Release, Rutherford Inst., Legal Organization Hosts Three So. California Seminars 1 (1986) (on file with the Univ. of Cal., Berkeley, Bancroft Libr., People for the American Way Papers, Box 65, Folder 26); see also Rutherford Institute Fundraising Letter 2–3 (on file with the Univ. of Cal., Berkeley, Bancroft Libr., People for the American Way Papers, Box 65, Folder 26) (“[T]hose who are convinced that their message is Truth, should persist in preserving every opportunity to proclaim that message to benefit others.”).

      [240].     Sarah Barringer Gordon, The Spirit of the Law: Religious Voices and the Constitution 140 (2010). Secular humanism was a term applied by conservative Christians to a philosophy that sought to remove Christianity “from the marketplace and the school, and later from other domains in public life.” John W. Whitehead & John Conlan, The Establishment of the Religion of Secular Humanism and Its First Amendment Implications, 10 Tex. Tech L. Rev. 1, 23 (1978).

      [241].     Many believed, as one conservative Christian author explained, that “[p]arents’ rights come from God by way of the natural law.” Seth Dowland, Family Values and the Rise of the Christian Right 75 (2015). Struggles over parental rights unfolded in the context of Christian schools. See Shawn Francis Peters, The Yoder Case: Religious Freedom, Education, and Parental Rights 173–74 (2003) (describing a “holy war” against regulation on behalf of Christian schools). Textbook protestors launched boycotts because they objected to classroom lessons. See Elizabeth Gillespie McRae, Mothers of Massive Resistance: White Women and the Politics of White Supremacy 218–21 (2018) (detailing prominent textbook protests in Kanawha Country, West Virginia).

      [242].     Phyllis Harmon, Justice??? (May 19, 1975) (on file with W. Va. Univ., Kanawha Textbook Protest Files); see also “Thanks, Mom,” Speech by Dolly Hill at the Open Textbook Hearing (Feb. 1975) (on file with W. Va. Univ., Kanawha Textbook Protest Files) (“When textbooks become so bad that they can’t be read over the air . . . , then parents, you better say, ‘I want my tax dollar to teach my own children!’”). For more on concern among conservative Christians about losing authority over their children, seeBarringer Gordon, supra note 240, at 93–95. And for further exploration of parents’ objections to public school curricula, see Maxine Eichner, Mary Ziegler & Naomi Cahn, Opting Out: Mahmoud, Public Education, and the Future of Parental Rights, 76 Duke L.J. (forthcoming 2026) (manuscript at 16) (on file with authors) (“Their strategy posited that the omission of references to religion, or the inclusion of secular alternatives, represented hostility to Christianity, and in fact constituted a nontraditional religion of its own,” which they labeled “secular humanism”).

[243].A Very Clear Issue,The Parents’ Page 1 (July/Aug. 1985) (on file with the Univ. of Cal., Berkeley, Bancroft Libr., People for the American Way Papers, Box 65, Folder 26).

      [244].     Keith Richburg, Perspectives, Colum. Daily Trib., Jan. 12, 1986, at 45.

[245].     See infra notes 246–254 and accompanying text.

[246].     Buckley Reiterates Call for Deductions on School Tuitions, N.Y. Times (Sep. 13, 1976), https://www.nytimes.com/1976/09/13/archives/buckley-reiterates-call-for-deductions-on-school-tuitions.html [https://perma.cc/6PVP-SA5Y].

[247].     Secular Humanism, Phyllis Schlafly Rep. (Nov. 1976), https://phyllisschlafly.com/constitution/secular-humanism/ [https://perma.cc/VP7W-8C74]. The bill proposal passed in the House but failed in the Senate. Id.

      [248].     Parents’ Rights in Education, Phyllis Schlafly Rep. (Nov. 1976), https://archives.phyllisschlafly.com/viewer/380 [https://perma.cc/M64J-U89U] (pitting the economic and moral rights of parents against secular humanism and control of the public schools). In a separate piece, we consider how this movement addressed parent-state conflicts, focusing on public schools and culminating in the Mahmoud v. Taylor decision. Seegenerally Eichner, Ziegler & Cahn, supra note 242.

[249].     See infra notes 250–254 and accompanying text.

      [250].     ACLU Attacks Abortion Law’s Consent Requirement, Rutherford Inst. 4(Sep./Oct. 1986) (on file with the Univ. of Cal., Berkeley, Bancroft Libr., People for the American Way Papers, Box 65, Folder 26).

[251].     Id.

      [252].     For the Rutherford Institute’s litigation strategy on parental rights, see R. Jonathan Moore, Suing for America’s Soul: John Whitehead, the Rutherford Institute, and Conservative Christians in Court 70–120 (2007).

      [253].     John W. Whitehead, From the President: Families Under Fire, Rutherford Inst. 3 (Nov./Dec. 1986) (on file with the Univ. of Cal., Berkeley, Bancroft Libr., People for the American Way Papers, Box 65, Folder 26).

      [254].     Id.

      [255].     Alan E. Sears, Fundraising Letter, All. Def. Fund (2001) (on file with Colum. Univ., Americans United for the Separation of Church and State Papers, Box 1, Folder 12). ADF began as a funder of conservative Christian litigation before becoming a major litigator in its own right. Ziegler, supra note 171, at 128–29, 168–94.

      [256].     The Alliance Defense Fund’s Amazing Seven-Year Track Record of Success, All. Def. Fund (2003) (on file with Colum. Univ., Americans United for the Separation of Church and State Papers, Box 1, Folder 13).

      [257].     Are Parents Stupid?, Wanderer 8 (Dec. 4, 2003) (on file with Colum. Univ., Americans United for the Separation of Church and State Papers, Box 1, Folder 13).

      [258].     For an overview of the parental rights campaign of the 1990s, see Catherine Caruso, The Parental Rights Movement Is History Repeating Itself, Dame Mag. (Mar. 9, 2022), https://www.damemagazine.com/2022/03/09/the-parental-rights-movement-is-history-repeating-itself/[https://perma.cc/8DDA-J2L3].

[259].     See Daniel Smith & Robert Herrington, TheProcess of Direct Democracy: Colorado’s 1996 Parental Rights Amendment, 37 Soc. Sci. J. 179, 182 (2000).

[260].     See Pew Rsch. Ctr., America’s Abortion Quandary 45 (2022), https://www.pewresearch.org/religion/2022/05/06/americas-abortion-quandary/ [https://perma.cc/6T33-EKVP].

[261].     See Megan Messerly & Alice Miranda Ollstein, Dems Split on Whether Parents Must Know Their Child Is Having an Abortion,Politico (May 17, 2023), https://www.politico.com/news/2023/05/16/democrats-gop-parental-notification-abortion-laws-00097245 [https://perma.cc/T2WY-V3RE].

      [262].     On the role played by Moms for Liberty, see Nicole Asbury, Schools Get Pushback on LGBTQ Book List, Wash. Post, Apr. 12, 2023, at B1; Nicole Asbury, Families Sue Montgomery Schools over LGBT Books, Wash. Post, May 27, 2023, at B1.

[263].     See 24 F. Cas. 946, 949 (C.C.D. Mass. 1816); supra Part I.A.

      [264].     We have focused on the question of whether the common law mandated parental involvement in minors’ most significant decisions. A separate, but related, question is what the common law said about the propriety of government intervention when a parent fails to discharge a duty, such as in cases of medical neglect. This issue, on which some of us have written elsewhere, is beyond the scope of this Article.

[265].     See generally Huntington & Scott, Conceptualizing Legal Childhood, supra note 8; Dailey & Rosenbury, supra note 8.

      [266].     Despite our use of the term “exception,” we do not mean to suggest that minors’ interests should be treated as anything other than central to the determination of decision-making over minors. Indeed, as we state, minors’ well-being is the overarching goal of our framework.

      [267].     Huntington & Scott’s important framework for assessing child well-being recognizes the necessity of paying attention to both empirical evidence and disadvantaged groups in assessing what is in the interests of children’s well-being. See Huntington & Scott, Conceptualizing Legal Childhood, supra note 8, at 1376–77.

[268].     See, e.g.,United States v. Bainbridge, 24 F. Cas. 946, 949 (C.C.D. Mass. 1816); Pool v. Pratt, 1 D. Chip. 252, 254–55 (Vt. 1814); Moss v. Rishworth, 222 S.W. 225, 227 (Tex. Comm’n App. 1920); see also Quinter & Markowitz, supra note 73, at 1914 (focusing on justifications to retain the judicial bypass option, the authors note that “[u]nder the proper understanding, parental rights instead derive from and are coterminous with children’s welfare”).

      [269].     2 Kent, supra note 41, at 86; see supra Part I.A

[270].     See supra Part I.A.

      [271].     Wisconsin v. Yoder, 406 U.S. 205, 232 (1972); seealso Huntington & Scott, supra note 8, at 284 (noting emerging consensus in American law on priority of children’s well-being, and attributing emphasis on parental rights to their generally furthering children’s well-being); Dailey & Rosenbury, supra note 8, at 78–79 (noting that U.S. law regarding parental rights has moved toward a consensus that children’s well-being must be given highest priority).

[272].     See Parham v. J.R., 442 U.S. 584, 602 (1979):

The law’s concept of the family rests on a presumption that parents possess what a child lacks in maturity, experience, and capacity for judgment required for making life’s difficult decisions. More important, historically it has recognized that natural bonds of affection lead parents to act in the best interests of their children. 1 W. Blackstone, Commentaries *447; 2 J. Kent, Commentaries on American Law *190.

[273].     Id.

[274].     Id.

[275].     See supra Part II.

      [276].     Deference to the autonomy principle depends on two prerequisites. Seeinfra notes 294–296 and accompanying text.

[277].     See supra Part I.B. See generally Elizabeth S. Scott, The Legal Construction of Adolescence, 20 Hofstra L. Rev. 547 (2000).

[278].     See supra Part I.B.

[279].     An Overview of Consent to Reproductive Health Services by Young People, Guttmacher Inst. (Aug. 30, 2023), https://www.guttmacher.org/state-policy/explore/overview-minors-consent-law [https://perma.cc/4AQU-7ZBN].

      [280].     Marianne Sharko, Rachel Jameson, Jessica S. Ancker, Lisa Krams, Emily C. Webber & S. Trent Rosenbloom, State-by-State Variability in Adolescent Privacy Laws, 149 Pediatrics 1, 3–6 (2022); Mary Louise E. Kerwin, Kimberly C Kirby, Dominic Speziali, Morgan Duggan, Cynthia Mellitz, Brian Versek & Ashley McNamara, What Can Parents Do? A Review of State Laws Regarding Decision Making for Adolescent Drug Abuse and Mental Health Treatment, 24 J. Child & Adolescent Substance Abuse 166, 167–73 (2015).

      [281].     We do not here advocate for a specific threshold for what should constitute a “significant portion.” Nevertheless, consistent with our framework, we note that this threshold should be lower when the parental consent requirement has a disproportionate effect on a disadvantaged group.

      [282].     Whether someone such as a physician can provide individualized and accurate screening to evaluate whether the minor seeking it would benefit from the resource should be factored into this determination.

      [283].     See also supra note 8 for further discussion of the ambiguities over the term “well-being.”

[284].     See Joerg Dreweke, Promiscuity Propaganda: Access to Information and Services Does Not Lead to Increases in Sexual Activity, Guttmacher Pol’y Rev. (June 11, 2019), https://www.guttmacher.org/gpr/2019/06/promiscuity-propaganda-access-information-and-services-does-not-lead-increases-sexual [https://perma.cc/C6W9-WUVC].

      [285].     This understanding, in the case of medical care, could be developed in consultation with the physician. See, e.g.,Poe v. Gerstein, 517 F.2d 787, 791 (5th Cir. 1975) (noting that developmental differences between minors and adults should not deprive minors of the right to make decisions that would allow them to avoid significant harm).

      [286].     Huntington & Scott, Conceptualizing Legal Childhood, supra note 8, at 1398, eloquently point to the need to consult empirical evidence in their article on the regulation of childhood based on more recent history:

[T]wenty-first-century regulation increasingly is based on a large body of psychological and biological research on child and adolescent development, as well as research on effective policies. This empirical knowledge makes it possible to further child wellbeing with much greater sophistication and effect than was possible during the Progressive Era.

[287].     See supra Part II.B.

[288].     See supra Part I.B.

[289].     See supra Part I.B.

      [290].     Think tanks opposed to abortion, for example, have produced consequential, if questionable, research on everything from post-abortion trauma to the risk profile of mifepristone. See, e.g., Pam Belluck, Journal Retracts Studies Cited in Federal Court Ruling Against Abortion Pill, N.Y. Times (Feb. 9, 2024), https://www.nytimes.com/2024/02/09/health/abortion-pills-study-retraction.html [https://perma.cc/A5MV-RRTB] (reporting on the retraction of two medication abortion safety studies whose authors included researchers affiliated with antiabortion groups).

[291].     See, e.g., Ari Ezra Waldman, Manufacturing Uncertainty in Constitutional Law, 91 Fordham L. Rev. 2249, 2306 (2023); see also Janet Freilich, Government Misinformation Platforms, 172 U. Pa. L. Rev. 1537, 1574 (2024) (misinformation “is used to justify political and legislative decisions that run counter to scientific evidence”); Reva B. Siegel, The New Politics of Abortion: An Equality Analysis of Woman-Protective Abortion Restrictions, 2007 U. Ill. L. Rev. 991, 1021 (noting the strategy of framing abortion opposition as backed by science).

[292].     See, e.g.,Poe v. Gerstein, 517 F.2d 787, 791 (5th Cir. 1975) (“[T]eenage motherhood involves serious consequences including adverse physical and psychological effects upon the minor.”).

      [293].     For discussion of the difficulties of evaluating empirical evidence, see supra notes 290–91 and accompanying text.

      [294].     See Susan Bordo, Unbearable Weight: Feminism, Western Culture, and the Body 72–73 (1993).

[295].     See generally, e.g.,Ferguson v. Charleston, 532 U.S. 67 (2001) (finding that a state hospital’s policy of reporting pregnant patients’ positive drug test results to the police was unconstitutional); Skinner v. Oklahoma, 316 U.S. 535 (1942) (holding that laws allowing for the compulsory sterilization of criminals are unconstitutional).

[296].     See, e.g., Bellotti v. Baird, 443 U.S. 622, 642 (1979) (“A minor not permitted to marry before the age of majority is required simply to postpone her decision. . . . A pregnant adolescent, however, cannot preserve for long the possibility of aborting, which effectively expires in a matter of weeks from the onset of pregnancy.”).

      [297].     Other considerations, including contested moral determinations, have no place in this assessment given that the reasons for withholding full decision-making rights from the minor, the person most affected by the decision, is to support their well-being. This means, for example, that assessing whether minors have the capacity to consent to abortion depends on their understanding the relative harms and benefits of pregnancy, childbirth, and abortion, not any ethical issues relating to abortion.

[298].     See, e.g., Foe v. Vanderhoof, 389 F. Supp. 947, 953 (D. Colo. 1975) (“States have been allowed more control and regulation over the affairs of minors than adults in recognition of the states’ particular interests in protecting minors and providing for their welfare.”); State v. Koome, 530 P.2d 260, 263 (Wash. 1975) (“Where minors’ right have been held subject to curtailment by the state in excess of that permissible in the case of adults it has been because some peculiar state interest existed in the regulation and protection of children, not because the rights themselves are of some inferior kind.”).

[299].     See generally Kurt W. Fischer & Daniel Bullock, Cognitive Development in School-Age Children: Conclusions and New Directions, in Development During Middle Childhood 70 (W. Andrew Collins ed., 1984); Janis E. Jacobs & Paul A. Klaczynski, The Development of Judgment and Decision Making During Childhood and Adolescence, 11 Current Directions Psych. Sci. 145, 145–49 (2002).

      [300].     Elizabeth Scott presents an excellent discussion of this issue. Scott, supra note 277, at 559–60.

[301].     Id. at 571.

      [302].     While we apply our own framework here, we are indebted to the excellent analysis of minors’ reproductive health treatment in the forthcoming Restatement Of the L., Child. & the L. § 14.20 (A.L.I., Tentative Draft No. 6, 2024) (Consent by a Minor to Reproductive Health Treatment).

      [303].     The first systematic review of the effects of parental involvement in abortion found consistent evidence that these laws reduced abortion rates. See Alisha Kramer, Angeline Ti, Lisa Travis, Adrienne Laboe, Walter O. Ochieng & Marisa R. Young, The Impact of Parental Involvement Laws on Minors Seeking Abortion Services: A Systematic Review, 1 Health Affs. Scholar 1, 10–11 (2023). See generally Joyce T. Kaestner & S. Colman, Changes in Abortions and Births and the Texas Parental Notification Law, 354 New Eng. J. Med. 1031 (2006).

      [304].     The authors attributed these outsize effects to the fact that “Texas is geographically the largest and most populous state to enforce a parental involvement law.” Kaestner & Colman, supra note 303, at 1032.

[305].     See Caitlin Myers & Daniel Ladd, Did Parental Involvement Laws Grow Teeth? The Effects of State Restrictions on Minors’ Access to Abortion, J. Health Econ., May 2020, at 1, 2. The authors found that:

A parental involvement law with a 400 mile avoidance distance – approximately a day’s drive – has twice the estimated effects on teen birth rates than a parental involvement law with a 25 mile avoidance distance. And a parental involvement law with a 400 mile avoidance distance has three times the estimated effect on teen birth rates in the poorest quartile of counties relative to the rest of the country.

Id. at 2.

      [306].     E.g., Caitlin Gilbert, Caroline Kitchener & Janice Kai Chen, How Florida’s Abortion Law Is Affecting East Coast Abortion Clinics,Wash. Post (May 24, 2024), https://www.washingtonpost.com/nation/2024/05/24/abortion-clinics-wait-time-florida-law/ [https://perma.cc/7B6T-PFVQ].

      [307].     See Mary Ziegler, Maxine Eichner & Naomi Cahn, Retrenchment by Division: The New Politics of Parental Rights, 123 Mich. L. Rev. 669, 673, 695 (2025).

[308].     See Satsie Veith, The Judicial Bypass Procedure and Adolescents’ Abortion Rights: The Fallacy of the “Maturity” Standard, 23 Hofstra L. Rev. 453, 477 (1994) (“The bypass option . . . has become a rubber stamp by which states ‘constitutionalize’ statutes which function only as burdens on pregnant teenagers who seek an abortion.”).

      [309].     Carol Sanger, Regulating Teenage Abortion in the United States: Politics and Policy, 18 Int’l J.L. Pol’y & Fam. 305, 312 (2004) (discussing the impact of judicial bypass hearings as “intrusive, humiliating, and meant to punish”). In fact, abortion opponents tout the effectiveness of using judicial bypass to reduce abortion rates. See, e.g., Michael New, Using Natural Experiments to Analyze the Impact of State Legislation on the Incidence of Abortion, Heritage Found. (Jan. 23, 2006), https://www.heritage.org/marriage-and-family/report/using-natural-experiments-analyze-the-impact-state-legislation-the [https://perma.cc/S2X5-NZEE]. County court offices charged with informing minors about the process are often woefully ill-prepared to handle requests and provide minors inaccurate information or simply turn minors away. When teens manage to file bypass petitions, judges seldom conduct a reasoned assessment of the merits of the case. See, e.g., Helena Silverstein, Girls on the Stand: How Courts Fail Pregnant Minors 52–71 (2007); Helena Silverstein & Leanne Speitel, “Honey, I Have No Idea”: Court Readiness to Handle Petitions to Waive Parental Consent for Abortion, 88 Iowa L. Rev. 75, 90–107 (2002); Patricia Donovan, Judging Teenagers: How Minors Fare When They Seek Court-Authorized Abortions,15 Fam. Plan. Persps. 259, 264 (1983); Helena Silverstein, Road Closed: Evaluating the Judicial Bypass Provision of the Pennsylvania Abortion Control Act,24 Law & Soc. Inquiry 73, 79–90 (1999); Stephanie Loraine Pineiro & Erin Carroll, If/When/How, The Judicial Waiver Process in Florida Courts: A Report (2019), https://ifwhenhow.org/resources/the-judicial-waiver-process-in-florida-courts-a-report/ [https://perma.cc/T7K6-JLP3]. Further, the approval rate varies widely with geography and the particular judge to whom the case is assigned. In one county in west central Florida, judges denied half of all petitions in 2021. Margaret Wurth, Hum. Rts. Watch,Access Denied: How Florida Judges Obstruct Young People’s Ability to Obtain Abortion Care 23 (2023), https://www.hrw.org/sites/default/files/media_2023/02/us_florida0223_web.pdf [https://perma.cc/HWN9-V9LU].

      [310].     Lauren J. Ralph, Erin King, Elise Belusa, Diana Greene Foster, Claire D. Brindis & M. Antonia Biggs, The Impact of a Parental Notification Requirement on Illinois Minors’ Access to and Decision-Making Around Abortion,62 J. Adolescent Health 281, 286 (2017); Elizabeth Janiak, Isabel R. Fulcher, Alischer A. Cottrill, Nicole Tantoco, Ashley H. Mason, Jennifer Fortin, Jamie Sabino & Alisa B. Goldberg, Massachusetts’ Parental Consent Laws and Procedural Timing Among Adolescents Undergoing Abortion, 133 Obstet. & Gynecol. 978, 982 (2019) (Massachusetts study finding that about one in five cases were delayed for twenty-one days by the bypass process).

      [311].     Ralph et al., supra note 310, at 286.

[312].     Seegenerally Carol Sanger, About Abortion: Terminating Pregnancy in Twenty-First-Century America (2017); Rachel Rebouché, Parental Involvement Laws and New Governance, 34 Harv. J.L. & Gender 175 (2011).

[313].     See Rebouché, supra note 312, at 191; see also Kate Coleman-Minahan, Amanda Jean Stevenson, Emily Obront & Susan Hays, Young Women’s Experiences Obtaining Judicial Bypass for Abortion in Texas, 64 J. Adolescent Health 20, 20–25 (2019).

      [314].     Kramer et al., supra note 303, at 11 (“In 2021, 1205 pregnant persons died in the United States due to pregnancy causes. It is estimated that 50–100 pregnant persons experience severe morbidity for every single pregnancy-related death.”).

[315].     See Alexandra Ursache, Ludmila Lozneanu, Iuliana Bujor, Alexandra Cristofor, Iona Popescu, Roxana Gireada, Cristina Elena Mandici, Marcel Alexandru Găină, Mihaela Grigore & Daniela Roxana Matasariu, Epidemiology of Adverse Outcomes in Teenage Pregnancy—A Northeastern Romanian Tertiary Referral Center, 20 Int’l J. Env’t Rsch. & Pub. Health 1, 2 (2023); Jane E. Dopkins Broecker & Paula J. Adams Hillard, Pregnancy in Adolescence, Glob. Libr. Women’s Med. (Feb. 2009), https://www.glowm.com/section-view/heading/Pregnancy-in-Adolescence/item/413 [https://perma.cc/GP6B-JGMH].

[316].     See Maria de la Calle, Jose L. Bartha, Cristina M. Lopez, Miriam Turiel, Nuria Martinez, Silvia M. Arribas & David Ramiro-Cortijo, Younger Age in Adolescent Pregnancies Is Associated with Higher Risk of Adverse Outcomes, 18 Int’l J. Env’t Rsch. & Pub. Health, no. 16, 2021, at 1, 1 (“The risk of all the maternal complications analyzed decreased significantly with every year of age [between 13 and 19] of the mother.”); Leo Morris, Charles Warren & Sevgi Aral, Measuring Adolescent Sexual Behaviors and Related Health Outcomes, 108 Pub. Health Reps. 31, 31 (1993) (indicating that teens younger than fifteen have high rates of pregnancy complications, including toxemia, anemia, and prolonged labor, and 2.5 times greater than the death rate for those ages 20–24).

      [317].     See Anuli Njoku, Marian Evans, Lillian Nimo-Sefah & Jonell Bailey, Listen to the Whispers Before They Become Screams: Addressing Black Maternal Morbidity and Mortality in the United States,11 Healthcare, no. 3, 2023, at 1, 1.

      [318].     Diana Greene Foster, The Turnaway Study: Ten Years, a Thousand Women, and the Consequences of Having – or Being Denied – an Abortion 16–17 (2020).

[319].     Id. at 18–20 (women also had almost four times greater odds of having a household income below the poverty level and three times greater odds of being unemployed).

[320].     Id.; see generally Sarah C.M. Roberts, Antonia Biggs, Karuna S Chibber, Heather Gould, Corinne H Rocca & Diana Greene Foster, Risk of Violence from the Man Involved in the Pregnancy after Receiving or Being Denied an Abortion, BMC Med., Sep. 29, 2014, at 1.

      [321].     Kate Perper, Kristen Peterson & Jennifer Manlove, Child Trends, Fact Sheet: Diploma Attainment Among Teen Mothers 1 (2010), https://www.childtrends.org/publications/diploma-attainment-among-teen-mothers [https://perma.cc/8WJT-6A9U] (“[S]lightly more than one-half of young women who had been teen mothers received a high school diploma by the age of 22, compared with 89 percent of young women who had not given birth during their teen years.”); see also Alexandria K. Mickler & Jessica Tollestrup, Cong. Rsch. Serv., R45184, Teen Births in the United States: Overview and Recent Trends 12 (2025) (“[A]pproximately 90% of women who do not give birth during adolescence graduate from high school, whereas about 50% of teen mothers receive a high school diploma by 22 years of age.”).

      [322].     Stacy Hodgkinson, Lee Beers, Cathy Southammakosane & Amy Lewin, Addressing the Mental Health Needs of Pregnant and Parenting Adolescents, 133 Pediatrics 114, 115–16 (2014); Katharine Dinwiddie, Tracy Schillerstrom & Jason Schillerstrom, Postpartum Depression in Adolescent Mothers, 30 J. Psychosom. Obstet. & Gynaecol. 168, 168–75 (2018).

      [323].     Jacqueline Corcoran, Consequences of Adolescent Pregnancy/Parenting: A Review of the Literature, 27 Soc. Work Health Care 49, 52 (1997).

      [324].     See Sarah B. Maness, Eric R. Buhi, Ellen M. Daley, Julie A. Baldwin & Jefrey D. Kromrey, Social Determinants of Health and Adolescent Pregnancy: An Analysis From the National Longitudinal Study of Adolescent to Adult Health, 58 J. Adolescent Health 636, 636–37 (2016) (“[M]arked variations [in rates of teen pregnancies] exist across racial, ethnic, and geographic populations. . . . [B]lack and Hispanic adolescents have more than twice the pregnancy rates compared with white adolescents.”).

      [325].     Kramer et al., supra note 303.

      [326].     Well-accepted studies have uniformly concluded that evidence fails to establish that abortion increases mental health issues. See, e.g.,Am. Psych. Ass’n, Report of the APA Task Force on Mental Health and Abortion 3–4 (2008), https://www.apa.org/pi/women/programs/abortion/mental-health.pdf [https://perma.cc/2CNH-FLWQ] (“The TFMHA evaluated all empirical studies published in English in peer-reviewed journals post-1989 that compared the mental health of women who had an induced abortion to the mental health of comparison groups of women. . . . The best scientific evidence published indicates that among adult women who have an unplanned pregnancy the relative risk of mental health problems is no greater if they have a single elective first-trimester abortion than if they deliver that pregnancy.”). The Turnaway Study, which is often considered the premier U.S. study on the effects of abortion versus childbirth because of its careful matching of cohorts and its longitudinal design, reached similar conclusions—in fact showing women denied abortions performed worse than those who accessed them on mental health measures. See M. Antonia Biggs, Ushma D. Upadhyay, Charles E. McCulloch & Diana G. Foster, Women’s Mental Health and Well-being 5 Years After Receiving or Being Denied an Abortion: A Prospective, Longitudinal Cohort Study, 74 JAMA Psychiatry 169, 174 (2017) (“Our findings add to the body of evidence rejecting the notion that abortion increases women’s risk of experiencing adverse psychological outcomes. Women who had an abortion demonstrated more positive outcomes initially compared with women who were denied an abortion.”). Past studies finding a range of poor mental health outcomes for women following abortion have been critically refuted. See, e.g.,Julia R. Steinberg & Lawrence B. Finer, Examining the Association of Abortion History and Current Mental Health: A Reanalysis of the National Comorbidity Survey Using a Common-Risk-Factors Model, 72 Soc. Sci. & Med. 72, 72 (2011) (“Here, we show that those [authors’] results are not replicable. That is, using the same data, sample, and codes as indicated by those authors, it is not possible to replicate the simple bivariate statistics testing the relationship of ever having had an abortion to each mental health disorder when no factors were controlled for in analyses.”); Julia R. Steinberg, James Trussell, Kelli Hall & Katie Guthrie, Fatal Flaws in a Recent Meta-Analysis on Abortion and Mental Health, 86 Contraception 430, 430 (2012) [hereinafter Steinberg et al., Fatal Flaws] (“[A] meta-analysis published in September 2011 concluded that abortion increases women’s risk of mental health problems by 81% and that 10% of mental health problems are attributable to abortions. . . . Here we detail seven errors of this meta-analysis and three significant shortcomings of the included studies. . . . These errors and shortcomings render the meta-analysis’ conclusions invalid.”). One new, large-scale study reached a contrary conclusion, finding that “[i]nduced abortion is associated with an increased risk of mental health-related hospitalization.” Nathalie Auger, Jessica Healy-Profitos, Aimina Ayoub, Antoine Lewin & Nancy Low, Induced Abortion and Implications for Long-Term Mental Health: A Cohort Study of 1.2 Million Pregnancies, 187 J. Psychiatric Rsch. 304, 304 (2025). However, this study compared a group of patients who received abortions with a group who delivered babies, violating the “generally accepted belief that unintended pregnancy delivered represents the only or most appropriate control group for studies designed to explore the impact of abortion on mental health.” Steinberg et al., Fatal Flaws, supra, at 432.

[327].     See Restatement Of the L., Child. & the L. § 16.20 (A.L.I., Tentative Draft No. 6, 2024) (“Studies that have focused specifically on decision-making about abortion have found . . . that mid-adolescents comprehend the medical information and make decisions as competently as adults.”).

[328].     See generally Catherine C. Lewis, Minors’ Competence to Consent to Abortion, 42 Am. Psych. 84(1987).

[329].     Id. (reviewing relevant studies).

[330].     Id. at 87.

[331].     See, e.g.,Lucy Jones, The New Science of Motherhood Shows It’s Far More Transformative Than Western Culture Allows, Guardian (July 30, 2023), https://www.theguardian.com/commentisfree/2023/jul/30/science-of-motherhood-transformative-western-culture-pregnant [https://perma.cc/85VG-GD28] (“The new science of pregnancy and motherhood is showing us just how dramatic the hormonal fluctuations are, as well as how seismic the cardiac, immunological, hematological, renal and respiratory changes—and their lifelong impacts on the body. . . . In a landmark study published in Nature Neuroscience in 2017, researchers . . . provided evidence for the first time that pregnancy renders pronounced, consistent changes in brain structure.”); Anushree Modak, Vaishnavi Ronghe, Kavita P. Gomase, Manjusha G. Mahakalkar & Vaishali Taksande, A Comprehensive Review of Motherhood and Mental Health: Postpartum Mood Disorders in Focus, 15 Cureus 1, 2 (2023) (up to eighty percent of new mothers experience “baby blues;” ten to twenty percent experience diagnosable post-partum depression).

[332].     See supra notes 318–320.

      [333].     Bellotti v. Baird, 443 U.S. 622, 642–43 (1979).

      [334].     Id. at 642.

[335].     Id.

      [336].     U.S. v. Skrmetti, 605 U.S. 495, 524–26 (2025).

[337].     See id.

      [338].     Lindsey Dawson & Jennifer Kates, Policy Tracker: Youth Access to Gender Affirming Care and State Policy Restrictions, KFF (Nov. 24, 2025), https://www.kff.org/lgbtq/gender-affirming-care-policy-tracker/ [https://perma.cc/T8TU-LK5E].

      [339].     While no empirical studies document the percentage of American parents who refuse gender-affirming care for their children, fifty-four percent of American adults favor laws to prevent transgender minors receiving gender-affirming care. See Hailey Branson-Potts, Americans Deeply Divided Over Issues of Queer Children, Poll Shows,L.A. Times (June 6, 2024), https://www.latimes.com/california/story/2024-06-06/lgbtq-poll-children-education-identity-history [https://perma.cc/6DDQ-VM3S].

      [340].     Several relatively long-term longitudinal studies reported significant improvements in psychological well-being and body image following gender-affirming care to minors, as well as reduction of the significant risks of self-harm associated with the severe emotional distress that characterizes gender dysphoria, although most of these studies reported results from the same clinic. See generally, e.g.,Peggy T. Cohen-Kettenis & Stephanie H.M. van Goozen, Sex Reassignment of Adolescent Transsexuals: A Follow-up Study, 36 J. Am. Acad. Child & Adolescent Psychiatry 263 (1997); Annelou L.C. de Vries, Jenifer K. McGuire, Thomas D. Steensma, Eva C.F. Wagenaar, Theo A.H. Doreleijers & Peggy T. Cohen-Kettenis, Young Adult Psychological Outcome After Puberty Suppression and Gender Reassignment, 132 Pediatrics 696 (2014). Only one of these studies lasted long enough to follow minors from early adolescence, before treatment, through young adulthood. See de Vries et al., supra, at 696. Other shorter-term longitudinal studies also showed considerable improvement in psychological functioning and body image. See generally, e.g., ChristalAchille, Tenille Taggart, Nicholas R. Eaton, Jennifer Osipoff, Kimberly Tafuri, Andrew Lane & Thomas A. Wilson, Longitudinal Impact of Gender-Affirming Endocrine Intervention on the Mental Health and Well-Being of Transgender Youths: Preliminary Results, Int’l J. Pediatr. Endocrinol., Apr. 30, 2020, at 1; Luke R. Allen, Laurel B. Watson, Anna M. Egan & Christine N. Moser, Well-Being and Suicidality Among Transgender Youth After Gender-Affirming Hormones, 7 Clinical Prac. Pediatric Psych. 302 (2019).

                 One report (the “Cass Review”) that has received a great deal of attention was commissioned by England’s National Health Service and was critical of the quality of the research regarding the benefits of gender-affirming care. Hilary Cass, Independent Review of Gender Identity Services for Children and Young People: Final Report 13 (2024), https://webarchive.nationalarchives.gov.uk/ukgwa/20250310143933/https://cass.independent-review.uk/home/publications/final-report/ [https://perma.cc/EXM2-MBSB]. Although the Cass Review has been cited by many states in support of bans on gender-affirming care, as well as the Supreme Court in Skrmetti, it did not actually recommend such a ban. Instead, it noted that, “for some, the best outcome will be transition.” Id. at 21. The Cass Review stated that “presentations, pathways and outcomes for this cohort are very individual, and the focus needs to be on helping each person find the best pathway for them. Assessments should be respectful of the individual’s experience and be developmentally informed.” Id. at 28. Our article focuses not on the standards of care, to which the Cass Review was largely directed, but instead on whether parents, children, or both should be able to participate in and consent to the evaluation and treatment process. The Cass Review overlaps with our discussion, however, on the potential psychological and other gains and risks from gender-affirming care. With respect to puberty suppression, the Cass Review found there “was insufficient/inconsistent evidence about the effects . . . on psychological or psychosocial well-being, cognitive development, cardio-metabolic risk or fertility.” Id. at 32. With respect to hormone treatment, it found “suggestive evidence from mainly pre-post studies that hormone treatment may improve psychological health, although robust research with long-term follow-up is needed.” Id. at 33. Other scholars have criticized the Cass Review’s assessment as holding the field to unrealistic standards that “fails to recognize the intricacies of pediatric research and how other types of pediatric care have comparable evidence and practices to care for transgender youth but are not targeted for comparable restriction.” Meredithe McNamara, Kellan Baker, Kara Connelly, Aron Janssen, Johanna Olson-Kennedy, Ken C. Pang, Ayden Scheim, Jack Turban & Anne Alstott, An Evidence-Based Critique of “The Cass Review” on Gender-affirming Care for Adolescent Gender Dysphoria 13, https://law.yale.edu/sites/default/files/documents/integrity-project_cass-response.pdf [https://perma.cc/Z97G-CTBN].

      [341].     Lauren Mizock & Effie Mougianis, Am. Psych. Ass’n, Fact Sheet: Gender Diversity and Transgender Identity in Adolescents, https://www.apadivisions.org/division-44/resources/advocacy/transgender-adolescents.pdf [https://perma.cc/JTC4-JHHY].

      [342].     E. Coleman et al., Standards of Care for the Health of Transgender and Gender Diverse People, Version 8, 23 Int’l J. Transgender Health S5, S45 (2022); see also Beth Jones, Nicola Brewin, Christina Richards, Marnix Van Eijk, Alex Stephenson-Allen & Jon Arcelus, Investigating the Outcome of the Initial Assessment at a National Transgender Health Service: Time to Review the Process?,18 Int’l J. Transgenderism 427 (2017) (finding that 38.4 percent of patients were recommended to engage in a longer assessment period before initiation of medical intervention).

[343].     See generally Joanna Wuest & Briana S. Last, Agents of Scientific Uncertainty: Conflicts Over Evidence and Expertise in Gender-Affirming Care Bans for Minors, Soc. Sci. & Med., Mar. 2024, at 1; Meredithe McNamara, Quinnehtukqut McLamore, Nicolas Meade, Melisa Olgun, Henry Robinson & Anne Alstott, A Thematic Analysis Of Disinformation In Gender-Affirming Healthcare Bans In The United States, Soc. Sci. & Med., June 2024, at 1.

      [344].     See generally Silvia Ciancia, Vanessa Dubois & Martine Cools, Impact of Gender-Affirming Treatment on Bone Health in Transgender and Gender Diverse Youth, 11 Endocrine Connections, no. 11, 2022, at 1.

[345].     Id.

      [346].     See generally Philip J. Cheng, Alexander W. Pastuszak, Jeremy B. Myers, Isak A. Goodwin & James M. Hotaling, Fertility Concerns of the Transgender Patient, 8 Transl. Androl. & Urol. 209 (2019).

[347].     See supra note 340.

      [348].     Kay Bussey, Gender Identity Development, in 2 Handbook of Identity Theory and Research 603 (Seth J. Schwartz, Koen Luyckx & Vivian L. Vignoles eds., 2011); C.E. Roselli, Neurobiology of Gender Identity and Sexual Orientation, J. Neuroendocrinol., July 2018, at 1, 1 (“Gender identity and sexual orientation are fundamental independent characteristics of an individual’s sexual identity.”).

[349].     See generally Caroline Salas-Humara, Gina M. Sequeira, Wilma Rossi & Cherie Priya Dhar, Gender Affirming Medical Care of Transgender Youth, Curr. Probs. Pediatr. Adolesc. Health Care, Sep. 2019, at 1.

[350].     Id. at 1(indicating that transgender youth who are able to access hormone treatment have better mental health outcomes than those who had to wait to access them as adults).

[351].     See E. Coleman et al., supra note 342, at S54.

[352].     See sources cited supra notes 342–344.

[353].     See supra note 340 and accompanying text.

[354].     See supra note 342 and accompanying text.

      [355].     E. Coleman et al., supra note 342, at S58.

      [356].     Children face numerous risks, ranging from cyberbullying to potential economic harms. SeeDurbin Delivers Opening Statement During Judiciary Committee Hearing on Children’s Online Safety, U.S. Senate Comm. on the Judiciary (Feb. 14, 2023), https://www.judiciary.senate.gov/press/dem/releases/durbin-delivers-opening-statement-during-judiciary-committee-hearing-on-childrens-online-safety [https://perma.cc/3A2T-PF2A] (opening statement for Senate Judiciary hearings in which the Chair observes, BigTech is “vacuuming up tons of data that they use to build profiles and target our kids with even more ads and content. It’s a lucrative business, but it is compromising our children’s privacy, safety, and health”); Big Tech and the Online Child Sexual Exploitation Crisis, U.S. Senate Comm. on the Judiciary (Jan. 31, 2024), https://www.judiciary.senate.gov/committee-activity/hearings/big-tech-and-the-online-child-sexual-exploitation-crisis [https://perma.cc/M345-KPFS] (testimony on how BigTech is trying to protect children against these harms). For general commentary on the potential privacy harms, see generally Daniel J. Solove & Danielle Keats Citron, Risk and Anxiety: A Theory of Data-Breach Harms, 96 Tex. L. Rev. 737 (2018); Danielle Keats Citron & Daniel J. Solove, Privacy Harms, 102 B.U. L. Rev. 793 (2022).

      [357].     15 U.S.C. §§ 6501–6506; 16 C.F.R. §§ 312.1–312.13 (2025); see David Gray & Danielle Citron, The Right to Quantitative Privacy, 98 Minn. L. Rev. 62, 115 (2013). COPPA applies broadly to any operator of a commercial website or online service that collects or maintains personal information from children, requiring operators to protect children’s privacy on topics ranging from the children’s name and address to images. Complying with COPPA: Frequently Asked Questions, Fed. Trade Comm’n (Jan. 2025), https://www.ftc.gov/business-guidance/resources/complying-coppa-frequently-asked-questions [https://perma.cc/VRZ7-UQSF]. “Under COPPA, parents are ascribed a powerful right to veto primary collection, primary use, secondary use, and even maintenance of data . . . COPPA confers to parents the power to function as gatekeepers of children and families’ personal information.” Anita L. Allen, Minor Distractions: Children, Privacy and E-Commerce, 38 Hou. L. Rev. 751, 763 (2001). There are no exceptions to this requirement (such as judicial bypass). Id. at 764. There have been numerous federal efforts to strengthen COPPA’s protections. E.g., 16 C.F.R. §§ 312.1–312.13; Children and Teens’ Online Privacy Protection Act, S. 1418, 118th Cong. (2023). States have enacted additional, and more restrictive, provisions to protect children’s privacy. Danielle Citron & Ari Waldman, Rethinking Youth Privacy, 111 Va. L. Rev. 1429, 1441 (2025).

      [358].     Citron & Waldman, supra note 357, 1438–40.

      [359].     Zahra Takhshid, Children’s Digital Privacy and the Case Against Parental Consent, 101 Tex. L. Rev. 1417, 1426 (2023). COPPA, FERPA, and HIPPA all require parental permission (FERPA and HIPPA extend until the child is eighteen). They do give the parent virtually unlimited discretion, and they also implicitly permit parents to overshare. See Stacey B. Steinberg, Sharenting: Children’s Privacy in the Age of Social Media, 66 Emory L.J. 839, 868–73 (2017). Parents’ abuse of that discretion raises a different set of issues. Id.

[360].     See 15 U.S.C. § 6502 (“It is unlawful for an operator of a website or online service directed to children, or any operator that has actual knowledge that it is collecting personal information from a child, to collect personal information from a child in a manner that violates the regulations prescribed under subsection (b).”).

[361].     E.g., Citron & Waldman, supra note 357, at 1441 (“Commercial websites trap young people in endless loops of data extraction, data-driven targeted advertisements, and video feeds that manipulate behavior, facilitate addiction, and increase screen time.”).

      [362].     To be sure, sites might require the release of personal information before a minor can access them. That is not generally true, however, of websites that provide the type of resources minors might be most likely to access without parental consent. The Trevor Project, for example, which provides resources to support crisis intervention for LGBTQIA+ minors, has no such requirement. The Trevor Project, https://www.thetrevorproject.org/ [https://perma.cc/G8MK-WD6L].

[363].     See 15 U.S.C. § 6502.

[364].     E.g., Allen, supra note 357, at 758. In 2019, the FTC settled a case with Musical.ly (now known as TikTok), based on claims relating to violations of COPPA through illegal collection of children’s personal information. Press Release, Fed. Trade Comm’n, Video Social Networking App Musical.ly Agrees to Settle FTC Allegations That it Violated Children’s Privacy Law (Feb. 27, 2019), https://www.ftc.gov/news-events/news/press-releases/2019/02/video-social-networking-app-musically-agrees-settle-ftc-allegations-it-violated-childrens-privacy [https://perma.cc/3CKN-7SV2].

[365].     See, e.g., Troxel v. Granville, 530 U.S. 57, 65 (2000) (“The liberty interest at issue in this case—the interest of parents in the care, custody, and control of their children—is perhaps the oldest of the fundamental liberty interests recognized by this Court.”).

      [366].     The Court first recognized parental authority as fundamental in Meyer v. Nebraska, in a conflict over compulsory public schools. 262 U.S. 390 (1923). The Court’s ruling turned on the nature of this conflict, distinguishing ancient Sparta’s plan to “develop ideal citizens” by communally raising some male children with our own system. Id. at 402. In the Court’s words, “Although such measures have been deliberately approved by men of great genius their ideas touching the relation between individual and state were wholly different from those upon which our institutions rest” and would do “violence to both letter and spirit of the Constitution.” Id.

[367].     See, e.g.,Prince v. Massachusetts, 321 U.S. 158, 166–67 (1944).

      [368].     See generally 530 U.S. 57.

[369].     Id. at 69.

      [370].     Wisconsin v. Yoder, 406 U.S. 205, 231–33 (1972).

[371].     See id. at 231 (noting that “[t]he State has at no point tried this case on the theory that respondents were preventing their children from attending school against their expressed desires, and indeed the record is to the contrary. . . . That is the claim we reject today.”).

[372].     See, e.g., Jessica Lee Schleider, Amanda Smock, Isaac Lev Ahuvia, Tubanji Walubita, Andy Seth Rapoport, Shannon Hill & Jonathan Purtle, State Parental Consent Law and Treatment Use Among Adolescents with Depression, 179 JAMA Pediatr. 209, 211 (2025) (“One-third of US states have laws prohibiting adolescents from independently consenting to mental health treatment. Treatment use among adolescents with a past-year MDE [major depressive episode] was significantly lower in states mandating caregiver consent.”); Patricia Cavazos-Rehg, Caroline Min, Ellen E. Fitzsimmons-Craft, Bria Savoy, Nina Kaiser, Raven Riordan, Melissa Krauss, Shaina Costello & Denise Wilfley, Parental Consent: A Potential Barrier for Underage Teens’ Participation in an mHealth Mental Health Intervention,Internet Interventions, Sep. 2020, at 1, 3 (“[A]pproximately one-third (35%) [of those interested in mental health intervention] indicated they would be willing to first allow researchers to contact their parents to obtain parental consent.”).

[373].     See, e.g., Evan V. Goldstein, Laura C. Prater & Thomas M. Wickizer, Preventing Adolescent and Young Adult Suicide: Do States with Greater Mental Health Treatment Capacity Have Lower Suicide Rates? 70 J. Adolescent Health 83 (2022).

[374].     See generally, e.g., Steven H. Woolf, The Youth Mental Health Crisis in the United States: Epidemiology, Contributors, and Potential Solutions, Pediatrics, Nov. 2025, at 1, 1 (“The mental health of US children and adolescents is in crisis. . . . The data are worrying. In 2023, almost 40% of high school students were reporting persistent sadness or hopelessness, 18% had experienced major depression, and 10% had attempted suicide. The suicide rate at ages 10 to 19 years increased by 85.3% between 2007 and 2017.”); Rebecca H. Bitsko et al., Mental Health Surveillance Among Children – United States, 2013 – 2019, CDC Morbidity & Mortality Wkly. Rep. Supp., Feb. 25, 2022, at 1.

[375].     See sources cited supra note 374.

[376].     See Woolf, supra note 374, at 1 (“Mood disorders, substance use, and suicidal behaviors are more common among lesbian, gay, bisexual, transgender, queer (LGBTQ+; especially transgender) youth; rural and American Indian/Alaska Native youth; and those who have experienced poverty, disabilities, or involvement with foster care or juvenile justice systems. Female youth exhibit greater morbidity rates from mood disorders, suicidal ideation, and substance use, but male youth are more likely to die of suicide and drug overdose.”).

[377].     See Rachel Tompa, Antidepressants for Kids and Teens: What the Science Says, Stan. Med. News Ctr. (July 28, 2025), https://med.stanford.edu/news/insights/2025/07/antidepressants-for-kids-and-teens--what-the-science-says.html [https://perma.cc/Q4K2-GNDD].

[378].     See Lois A. Weithorn, Children’s Capacities in Legal Contexts, in 4 Children, Mental Health, and the Law 25, 35–39 (N. Dickon Reppucci, Lois A. Weithorn, Edward P. Mulvey & John Monahan eds., 1984) (summarizing finding that “most adolescents will have the necessary cognitive skills to demonstrate competency according to the highest standard: appreciation”; in contrast, nine-year-olds “were found to perform significantly less well on the understanding and reasoning scales,” although “they did not differ significantly from the adults with respect to [their] choices”); Giovanna Parmigiani, Marcello Benevento, Biagio Solarino, Anna Margari, Davide Ferorelli, Luigi Buongiorno, Roberto Catanesi, Felice Carabellese, Antonio Del Casale, Stefano Ferracuti & Gabriele Mandarelli, Decisional Capacity to Consent to Treatment in Children and Adolescents: A Systematic Review, Psychiatry Rsch., Feb. 2025, at 1, 4 (“This systematic review of 10 studies on children and adolescents’ mental capacity to consent in heterogeneous clinical settings, revealed consistent findings, suggesting that a subset of minors may demonstrate good decision-making capacity regarding treatment.”). The decision to consent to non-standard mental health treatments like conversion therapy will be more difficult, in part because it has been linked to significant risks to mental health like depression, post-traumatic stress disorder, and suicidal thoughts. See Krista Conger, Conversion Practices Linked to Depression, PTSD and Suicide Thoughts in LGBTQIA+ Adults, Stan. Med. News Ctr. (Sep. 30, 2024), https://med.stanford.edu/news/all-news/2024/09/conversion-practices-lgbt.html [https://perma.cc/2RJK-2KH8].

      [379].     Indeed, some Supreme Court Justices have recently used the Court’s emergency docket to signal they favor adopting the “parental-rights absolutism” that we described supra Part III, into constitutional doctrine. See generally Mirabelli v. Bonta, 146 S. Ct. 797 (2026); Montana v. Planned Parenthood of Mont.,145 S. Ct. 2627 (2025) (denial of certiorari); Parents Protecting Our Child. v. Eau Claire Area Sch. Dist., 145 S. Ct. 14 (2024) (same). Adopting this position would allow the Court to strike down state and federal laws and regulations permitting minors’ consent to birth control and abortion, and to allowing minors to transition gender at school.

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