I think that accurately captures the rule - and likely the
right rule - with regard to decisions made for medical reasons, when the
decisions are within the range of plausible medical decisions. (As I've said
all along, I think circumcision decisions may well fall in this category.) But
I don't think it disposes of a parent's decision made for nonmedical reasons,
or if the decision (1) has substantial and possibly harmful permanent physical
effects and (2) there comes to be a medical consensus that the decision is not
medically justified.
An analogy: Say that parents want prescription-only
psychotropic drugs administered to their child, and they make clear that the
reason is not a medical judgment but purely a religious one. (The drug happens
to be a sacrament to them, for instance.) It seems to me that Parham doesn't
dispose of this situation.
Eugene
From: [email protected]
[mailto:[email protected]] On Behalf Of Friedman, Howard M.
Sent: Friday, July 06, 2012 9:35 AM
To: Law & Religion issues for Law Academics
Subject: Relevance of Parham v JR To Circumcision Debate
I think some guidance on relative rights of parents and children to make a
decision that could arguably either harm the child or be in the child's best
interest are found in the Supreme Court's 1979 decision in Parham v. J.R. on
parental commitment of a minor to a state mental hospital. While there is
language in Chief Justice Burger's opinion that may point more than one way in
the circumcision example, I call your attention to these excerpts:
"Simply because the decision of a parent is not agreeable to a child, or
because it involves risks, does not automatically transfer the power to make
that decision from the parents to some agency or officer of the state. The same
characterizations can be made for a tonsillectomy, appendectomy, or other
medical procedure. Most children, even in adolescence, simply are not able to
make sound judgments concerning many decisions, including their need for
medical care or treatment. Parents can and must make those judgments. Here,
there is no finding by the District Court of even a single instance of bad
faith by any parent of any member of appellees' class.... The fact that a child
may balk at hospitalization or complain about a parental refusal to provide
cosmetic surgery does not diminish the parents' authority to decide what is
best for the child....
... [W]e conclude that our precedents permit the parents to retain a
substantial, if not the dominant, role in the decision, absent a finding of
neglect or abuse, and that the traditional presumption that the parents act in
the best interests of their child should apply. We also conclude, however, that
the child's rights and the nature of the commitment decision are such that
parents cannot always have absolute and unreviewable discretion to decide
whether to have a child institutionalized. They, of course, retain plenary
authority to seek such care for their children, subject to a physician's
independent examination and medical judgment."
Howard Friedman
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