Bad Medicine Parents the State and the Charge of “Medical Child Abuse”

240 University of California, Davis [Vol. 50:205
precious . . . than property rights.” 156 This constitutional guarantee
rests upon the nation’s “strong tradition of parental concern for the
nurture and upbringing of their children.” 157
Yet the scope of MCA was deliberately framed as expansive, 158 and
takes no account of parents’ constitutional rights to make decisions for
their children. In place of parents’ rights to choose which physician
and medical care plan they believe best serves the interests of their
child, the MCA standard substitutes the charging physician’s
judgment. While courts have justified state intervention in MCA based
on the state’s obligation to protect children from abuse, the broad and
vague standards delineated by MCA’s framers encompass many cases
that lack the compelling circumstances constitutionally necessary to
justify such intervention. State interference in the child’s medical care
in these cases constitutes a gross violation of parents’ fundamental
rights. It also disserves the interests of children, which, our
constitutional system recognizes, are best served by allowing their
parents the discretion to make such choices.
A. Parents’ Constitutional Right to Make Health Care Decisions for
Their Children
The Supreme Court has zealously guarded parents’ constitutional
rights to make decisions for their children for almost a century. In the
1923 case of Meyer v. Nebraska, and again in Pierce v. Society of Sisters
two years later, the Court overturned state statutes on the ground that
they “unreasonably interfere[d] with the liberty of parents . . . to direct
the upbringing and education of [their] children.” 159 In the Court’s
words, “[t]he fundamental theory of liberty . . . excludes any general
power of the state to standardize its children. . . . The child is not the
mere creature of the state; those who nurture him and direct his
destiny have the right, coupled with the high duty, to recognize and
prepare him for additional obligations.” 160 A generation later, the
Court stated again that “[i]t is cardinal with us that the custody, care
and nurture of the child reside first in the parents.” 161
155 Skinner v. Oklahoma, 316 U.S. 535, 541 (1942).
156 May v. Anderson, 345 U.S. 528, 533 (1953).
157 Wisconsin v. Yoder, 406 U.S. 205, 232 (1972).
158 See supra notes 58–64 and accompanying text.
159 Pierce v. Soc’y of Sisters, 268 U.S. 510, 534 (1925).
160 Id. at 535.
161 Prince v. Massachusetts, 321 U.S. 158, 166 (1944).