Faculty Journal Articles and Book Chapters
ORCID (Links to author’s additional scholarship at ORCID.org)
Abstract
The American legal system presumes that children’s interests are best protected by their parents and, secondarily, by the state’s parens patriae authority. Yet this structure falters when parental authority and state power are infused with political and ideological agendas. This Essay examines how these dynamics have distorted decision-making authority in two contexts—minors’ access to abortion and gender-affirming medical care—and allowed children’s welfare and autonomy to be sacrificed to partisan aims. The law is inconsistent on the role of parental rights—typically empowering parents to grant or withhold consent to a minor’s abortion but categorically stripping them of the power to consent to gender-affirming care for a minor. This inconsistency exposes “parental rights” as a selectively invoked political tool rather than a stable legal principle. Moreover, even a consistent approach to parental rights and decision-making for minors would likely fail to account sufficiently for the unique, lifelong consequences of denying access to abortion or gender-affirming care.
Part I situates these departures within the broader legal framework governing conflicts among parents, children, and the state, illustrating how minors’ interests rarely prevail absent independent constitutional protection or statutory intervention. Part II explores how abortion and gender-affirming care laws have been shaped less by coherent doctrine than by partisan ideology, resulting in idiosyncratic approaches to these particular decisions with the potential for lasting harmful consequences. Part III argues that while fidelity to conventional principles would represent an improvement, at least with respect to gender-affirming care decisions, those principles may simply be inadequate to safeguard children’s autonomy in life-altering decisions. The Essay concludes by urging reconsideration of how the legal system conceptualizes minors’ self-determination, pro-posing that more attention be paid to how decisions might affect children’s well-being than to who has the right to make them.
Publication Title
Yale Law Journal Forum
Document Type
Article
Keywords
Parental rights, Minors' autonomy, Abortion law, Gender-Affirming care, Medical decision-making, Constitutional law, Children's rights, Parens Patriae, Reproductive rights, Health law, State and local government law
Recommended Citation
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 (2025)
Included in
Family Law Commons, Health Law and Policy Commons, Human Rights Law Commons, Law and Gender Commons, Law and Society Commons, Medical Jurisprudence Commons, State and Local Government Law Commons
