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

242 University of California, Davis [Vol. 50:205
Accordingly, parents’ rights require careful protection in abuse and
neglect cases to ensure that they are not eroded by the state.
Until MCA was conceptualized, the only cases that had tested the
line between parents’ decision making authority and the state’s right to
intervene to protect children were medical neglect cases. In these
cases, doctors asserted that parents were depriving children of
appropriate treatment — in other words, undertreating them, in
contrast to the MCA cases’ assertions of overtreatment. To protect
parents’ rights in these medical neglect cases, courts carefully drew the
line circumscribing state intervention at a place that supported
parents’ decision-making rights while still protecting children’s
wellbeing.
The limits that courts imposed on government intervention in
medical neglect cases are instructive in the MCA context. To safeguard
parents’ decision-making rights, courts have declared that “[s]tate
intervention is justifiable only under compelling conditions.” 171 While
different courts have phrased the legal tests to ascertain the presence
of such compelling conditions in slightly different ways, at their core,
they authorize intervention only when three circumstances are
present. First, the state’s preferred course of treatment must be
compelling in the sense that all the child’s medical doctors agree that
it is the correct one. 172 Second, the state’s preferred course of
treatment must be both likely to result in great benefit and to pose few
countervailing risks to the child. 173 Third, the threat to the child’s
health from forgoing the treatment must be significant. 174 Under these
standards, for example, courts generally authorize blood transfusions
when doctors agree that a child’s life is at stake but the parent refuses
such treatment based on religious reasons. 175 Likewise, courts will
171 Newmark, 588 A.2d at 1117.
172 See, e.g., In re Storar, 420 N.E.2d 64, 73 (N.Y. 1981); In re Hofbauer, 393
N.E.2d 1009, 1014 (N.Y. 1979); Custody of a Minor, 393 N.E. at 843.
173 See Newmark, 588 A.2d at 1117-18; Goldstein, supra note 25, at 653; see also In
re Burns, 519 A.2d 638, 645 (Del. 1986).
174 See, e.g., In re D.L.E., 645 P.2d 271, 275-77 (Colo. 1982) (en banc) (permitting
state to intervene where minor has a life threatening medical condition); Muhlenberg
Hosp. v. Patterson, 320 A.2d 518, 521 (N.J. Super. Ct. Law Div. 1974) (allowing state
intervention “where treatment is necessary for the sustaining of life or the prevention
of grievous bodily injury”); In re Green, 292 A.2d 387, 390-93 (Pa. 1972) (the state
may intervene only if the child’s life is immediately imperiled by his physical
condition).
175 See, e.g., In re Pogue, No. M-18-74 (D.C. Super. Ct. Nov. 11, 1974); People ex
rel. Wallace v. Labrenz, 104 N.E.2d 769 (Ill. 1952); In re Guardianship of L.S. & H.S.,
87 P.3d 521 (Nev. 2004); John F. Kennedy Mem’l Hosp. v. Heston, 279 A.2d 670 (N.J.
1971); In re Cabrera, 552 A.2d 1114 (Pa. Super. Ct. 1989); Jehovah’s Witnesses v.