Beginning with In re Gault (1967), in which the US Supreme Court stated that “neither the Fourteenth Amendment nor the Due Process Clause is for adults alone,”¹ the court has held repeatedly that minors have constitutional rights. The Gault decision, which accorded minors certain procedural rights when they are charged by the state with juvenile delinquency offenses, was followed by others recognizing, in Tinker v. Des Moines Independent School District (1969),² that minors had rights of free speech under the First Amendment and, in Planned Parenthood of Central Missouri v. Danforth (1976)³ and Carey v. Population Services International (1977),⁴ that they also had privacy rights. Although the Supreme Court subsequently addressed a wide variety of constitutional issues affecting minors and rendered some decisions that were more equivocal about the scope of minors’ constitutional rights, the basic principles articulated in the early cases still stand.

One area of frequent constitutional litigation has been the rights of minors with respect to reproductive health care, particularly abortion. The early cases, Carey and Danforth, clearly established that the right of privacy protects minors as well as adults and encompasses minors’ access to contraceptives and the abortion decision. The subsequent history of constitutional litigation with respect to abortion has been complex. After the decision in the Danforth case, which held that parents cannot exercise an arbitrary veto with respect to the abortion decisions of their minor daughters, the US Supreme Court decided a series of cases—beginning with Bellotti v. Baird (1979),⁵ and continuing more recently
with Planned Parenthood of Southeastern Pennsylvania v. Casey (1992),⁶ and Ayotte v. Planned Parenthood of Northern New England (2006)⁷—addressing parental notification and consent issues related to abortion. The collective import of these cases has been that although a state may enact a mandatory parental involvement requirement for minors who are seeking abortions, the laws must include an exception when necessary for the preservation of the adolescent’s life or health and establish an alternative procedure whereby a minor may obtain authorization for an abortion without first notifying her parents.⁷ This alternative most often takes the form of a court proceeding known as a “judicial bypass.” In the bypass proceeding, a minor must be permitted, without parental involvement, to seek a court order authorizing an abortion. If the minor is mature enough to give an informed consent, the court must allow her to make her own decision; and, if she is not mature, the court must determine whether an abortion would be in her best interest.⁵ Many, but not all, states have enacted such parental involvement or judicial bypass statutes, some of which have been implemented, although others have been enjoined by the courts. As of February 2014, at least 38 states have laws in effect that require either the consent or notification of at least one parent; all but 1 of these states provide for a judicial bypass; all but 3 have an exception for medical emergencies; 16 include exceptions for victims of abuse, assault, incest, or neglect; and several provide for consent or notification of an adult family member other than a parent.⁸

Although the constitutional litigation concerning minors’ rights in the reproductive health care arena has attracted significant attention, most of the specific legal provisions that affect adolescents’ and young adults’ access to health care are contained in state and federal statutes and regulations or in “common law” decisions of the courts. These provisions cover a broad range of issues related to consent, confidentiality, and payment, and are critical in defining the parameters of what providers are legally permitted and required to do. Therefore, practitioners providing services to AYAs must develop a familiarity not only with the general constitutional principles that have evolved in recent decades but also with federal laws and state laws, including court decisions, that apply in their own states.

“Mature minor” is generally understood to mean a minor who, in the eyes of the medical professional, exhibits the maturity to authorize his or her own health care. Even in the absence of a specific statute, “mature minors” may have the legal capacity to give consent for their own care. The mature minor doctrine emerged from court decisions addressing the circumstances in which a physician could be held liable in damages for providing care to a minor without parental consent.⁹,¹¹ In a few states, courts explicitly have chosen not to hold practitioners liable for delivering care to a “mature” minor capable of providing informed consent. The basic criteria for determining whether a patient is capable of giving an informed consent are that the patient must be able to understand the risks and benefits of any proposed treatment or procedure and its alternatives, and must be able to make a voluntary choice among the alternatives. These criteria for informed consent apply to minors, as well as adults. During the past few decades, diligent searches have found no reported decisions holding a physician liable in such circumstances solely on the basis of failure to obtain parental consent when nonnegligent care was provided to a mature minor who had given informed consent, although a few states have rejected application of the “mature minor” doctrine in particular circumstances. In most states, this suggests that unless a state has explicitly rejected the mature minor doctrine, there may be little likelihood a practitioner will incur liability for failure to obtain parental consent for care provided that the minor consents and the minor is an older adolescent (typically at least 15 years old) who is capable of giving an informed consent and the care is not of high risk, is for the minor’s benefit, and is within the mainstream of established medical opinion. Again, however, laws do vary from state to state; practitioners must be familiar with local requirements and should consider consulting with local legal counsel to obtain legal advice on this issue.