I. Introduction
In the last decade, American adolescents have gained substantial protections and rights related to their bodies, particularly for transgender and gender non-conforming youths and in the COVID-19 vaccination of minors.1 For instance, during the pandemic, children found themselves traveling across state lines to jurisdictions like Philadelphia and Washington, D.C. since these states had passed laws like the “Minor Consent for Vaccination Amendment Act of 2020” (MCA) to allow mature minors to obtain vaccination without parental permission.2 However, at the same time, this progress has incited hostility from parents and state actors who oppose the greater autonomy that children have gained. On February 14 and 15, 2023, Idaho and Oklahoma passed bills banning gender-affirming medical care for minors despite ongoing constitutional challenges to similar restrictions in Arkansas, Alabama, Texas, and Arizona.3 States have passed these restrictions despite robust social science evidence showing that adolescents have the maturity and decisional capacity comparable to that of adults when it comes to making choices about their healthcare.4
The heated debate surrounding minors’ medical autonomy stems from its implicit challenge to the ingrained assumption in American law that confers authority to parents and the state in making decisions for children. The minor’s right to medical autonomy has been particularly pronounced in the context of abortions, gender-affirming healthcare, and vaccination. Since the 1980s, many states have allowed underage victims of sexual assault to independently consent to medical treatment, and most states allow any minor under seventeen to give consent for blood donation.5 While these medical procedures granted minors more autonomy, increasing restrictions are now being imposed on their access to gender-affirming healthcare and vaccination, with new legal cases emerging nationwide. Ongoing controversies surrounding COVID-19 vaccinations,6 the overturning of Roe v. Wade and the consequent increase of abortion restrictions across the United States,7 and the sharp rise in the number of young people identifying as transgender8 have significantly raised the stakes for young people wishing to assert their bodily autonomy in medical decision-making. Understanding the courts’ use of social science research involving children’s development is critical to both shaping and predicting the outcome of challenges to state restrictions on children’s medical autonomy. The recency of relevant medical autonomy cases highlights the importance of this intervention.
Centuries of American legal jurisprudence established that parents are tasked with raising and making decisions for children.9 Parental authority is one of the primary reasons why the United States remains the only nation in the world refusing to ratify the United Nations Convention on the Rights of the Child.10 The United States strongly believes that parents—particularly white, wealthy parents—should govern a child's development and that laws generally should not intervene in carrying out that authority.11 To reinforce this unique parental responsibility, the law empowers parents and families “to perform the social roles of procreation, nurturance, support, and socialization of children.”12 Simultaneously, the law upholds the state’s right to step in as a guardian and decision-maker when parents fail.13 The scope of these powers and their implications for the autonomy of children in contemporary medical decision-making contexts are continually being developed.
Throughout the history of medical autonomy cases, social science research involving the capacity of minors to make decisions has been presented in courtrooms to support challenges against this traditional view of parental and state authority. In legal cases seeking to overturn recent state regulations that restrict minors’ independent access to medical care, scholarship on the decisional capacity and psychological state of adolescents has been featured prominently through amicus participation. However, the extent to which courts are influenced by social science in legal arguments remains uncertain.
To combine the two issues—(1) the opacity in the understanding of the court's reliance on social science and (2) the fierce tension between children’s rights and parental and state authority—this thesis asks: how do courts use social science to decide three different types of children’s medical autonomy cases, namely abortion, gender-affirming care, and vaccination cases?
The paper will first discuss the history of social science in law. Next, I will trace the development of legal doctrine recognizing parental rights and illustrate how they are pitted against the two other interests that are commonly invoked in children’s medical autonomy cases: the child’s autonomy interests and state interests. Then, I will introduce the contemporary scientific understanding of minors’ decision-making capacity. I will next expose the inconsistent judicial use of social science in abortion, gender-affirming treatment, and vaccination cases. Then, I aim to highlight the arbitrary legal application of social science and the valorization of interests. Historically, the question of medical autonomy for minors has prominently surfaced in parental notification laws for teenage abortions and only more recently in vaccination and gender-affirming healthcare contexts. Thus, the comparison will largely focus on how the maturity doctrine and the use of social science in parental notification cases have shaped or do not resemble the decisions courts are coming to today. Finally, after identifying the inconsistency in the courts’ use of social science, the paper will theorize interrelated reasons that could explain this inconsistency.
II. Background
a. Social Science in the Courts
A revolutionary debate regarding the use of scientific expertise in the courts undergirds these legal questions. Until the twentieth century, scientific expertise was not considered a legitimate factor in judicial decision-making. Termed “mechanical jurisprudence” by Roscoe Pound to describe the dominant legal theory of the time, judges stiffly applied stare decisis without regard for social consequences.14 Decisions were expected to be reached strictly on the merits of law and logic and kept separate from the factual expertise of non-legal actors. As a counter to the phenomenon of “mechanical jurisprudence,” Pound advocated for “sociological jurisprudence,” urging courts to consider social interests and relevant social science data in their interpretation of the law.15
Around the time Pound was advocating for sociological jurisprudence, Louis Brandeis and Josephine Goldmark submitted to the Supreme Court what came to be known as the famous Brandeis brief—a brief with only two pages of legal argumentation and a whopping 102 pages of science and social science.16 The brief played an influential role in Muller v. Oregon, arguing the negative biological and sociological effects of long working hours on both women and men.17 The data justified state restrictions on women’s working hours and dramatically redefined the potential role of social science in legal proceedings.18 While the decision was influenced by the gendered and skewed “science” of the time, it marked a shift in how the Court would consider social science evidence in its evaluation of the law.
In the decades following the Brandeis-Goldmark Brief, the Supreme Court showed an increasing willingness to consider social science in its decision-making.19 In Brown v. Board of Education of Topeka (1954), which was decided fifty years after Muller (1908), the Court struck down a school segregation law partly because of the adverse developmental effects of segregated schooling for Black children.20 Social science did not consistently outweigh the justices’ assumptions about women and children, however. In the 1973 case Roe v. Wade, the Court asserted without any empirical evidence that “[m]aternity, or additional offspring, may force upon the woman a distressful life and future” and that “[m]ental and physical health may be taxed by child care.”21 The increasing rhetorical power and acceptance of social science can be seen by the fact that forty years after Roe, the Court in Gonzales v. Carhart made a similar observation to that in Roe but “followed it with 10 citations to fact-based authorities—from medical journals to New York Times articles to briefs from the American Psychological Association.”22
i. Social Science Amicus Briefs
Amicus briefs serve as vessels through which advocates can introduce social science research to the courts. From the late 1940s to the late 1990s, the number of amicus briefs filed with the Court increased by a staggering 800 percent.23 The same upward trend was observed specifically for the involvement of social science experts in the submission of amicus curiae briefs.24 Notably, amicus briefs often do not neutrally present social science research; rather, the research gets tailored to support the argument of a particular litigant. As a result, amicus briefs have not escaped criticism: Judge Posner famously criticized that “the filing of an amicus brief is often an attempt to inject interest group politics.”25 Given the prevalence of social science research in amicus briefs, the explosive growth in amicus participation could suggest a conspicuous shift in the judicial lawmaking process.
ii. Social Science Expert Testimony
Expert testimony is another way social science can influence the law. Even more than with briefs, this format is criticized for encouraging social science experts to share biased iterations of the research literature.26 However, it provides a pathway for complex debates and literature to directly enter the courtroom, be explained and cross-examined, and educate decision-makers of its relevance.27 Expert testimony allows for social scientific authority to be acknowledged and reviewed by the courts with relative effectiveness.
b. Three Conflicting Interests
Children’s medical autonomy cases broadly invoke three interests: parental interests, state interests, and the child’s interests. Prominent scholars in the field of children’s rights typically imagine an inverted triangle, with parents and the state at the top and children at the bottom, to illustrate who has authority over children’s lives.28 The relegation of children to the bottom point of the triangle represents the lack of authority children have in forging their legal destinies.
A long line of landmark Supreme Court cases on parental rights attempts to prescribe when a parent’s interests could trump the interests of the state and, conversely, when the state’s interests trump the interests of the parent. Less common is a delineation of a principle for when children’s interests trump the interests of the state or the parents. Different types of social science (investigation of decision-making capacity, benefits to mental health, economics, or social interests) are supplemented to justify the prioritization of certain interests. For instance, a court that entirely omits a discussion of an adolescent’s mature decision-making ability communicates a level of disinterest in the minor’s autonomy interests, and a court that prioritizes social science studies of socioeconomic welfare could indicate their interest in promoting state interests. An investigation into how courts pick which science to use could communicate their priorities and shed light on how they differently decide in the three medical autonomy case types.
c. Doctrine of Parental Authority and its Limitations
i. Parental Authority in Legal Doctrine
In the United States, the family is a sacred social structure, and as such, the authority of parents to exert control over their children has been legally protected throughout American history. The Supreme Court in Troxel v. Granville (2000) asserted that parental rights are “perhaps the oldest of the fundamental liberty interests recognized by this Court.”29 This right was upheld again and again in a string of twentieth-century cases including Meyer v. Nebraska (1923), Pierce v. Society of Sisters (1925), Prince v. Massachusetts (1944), and Wisconsin v. Yoder (1972).30
In Parham v. J.R. (1979), the Court specified how the law protects parental authority in the medical decision-making context.31 The Parham Court held that parents have both a right and a duty to “recognize and prepare [their children] for additional obligations,” including “to recognize symptoms of illness and to seek and follow medical advice.”32 It reaffirmed that the law operates on the presumption that parents will step in where children lack, “in maturity, experience, and capacity for judgment required for making life’s difficult decisions.”33 It recognized “that natural bonds of affection lead parents to act in the best interests of their children.”34 The Court supported these claims about the immaturity of children and normative judgments about best parenting practices by stating that “[m]ost children, even in adolescence, simply are not able to make sound judgments concerning many decisions, including their need for medical care or treatment.”35 Given their immaturity, the Court prescribes that parents “can and must” make those decisions.36 The opinion notably emphasized the minor’s lack of maturity in decision-making to justify that the forced commitment of a child to a mental hospital by the request of a parent was constitutional.
In Troxel v. Granville (2000), the Court ruled that a parent could override a state’s determination of the child’s best interests, further expanding the authority of parents even when pitted against the judgment of the state.37 In this case, the child’s parents disagreed with the amount of visitation time that the Washington Superior Court had allowed for the child’s grandparents.38 The Court ruled in favor of the parents, stating that the Due Process Clause does not allow the State to “infringe on the fundamental right of parents to make child-rearing decisions simply because a state judge believes a ‘better’ decision could be made.”39 When the parent’s determination of the child’s best interests conflicted with that of the state, the Court deliberately stepped in to favor and endorse the parents to serve as proxy decision-makers.
As shown in Troxel, the Supreme Court has conveyed that parents still share their authority with the state as parens patriae, or “parent of the country.” These cases have also exposed that the dispute between the state and parents has “positioned children as property ‘either as resource[s] of the state’ or ‘private assets of the parent.’”40 Some Justices perceived this indifference: in the words of Justice Stevens in his concurring opinion from Troxel, “[c]ases like this do not present a bipolar struggle between the parents and the State over who has final authority to determine what is in a child's best interests. There is at a minimum a third individual, whose interests are implicated in every case to which the statute applies—the child.”41 However even Justice Stevens, who lamented the Court’s continued silence on the nature of a child’s interests, quickly drew a line following his critique, declaring that, “of course,” he did not mean to suggest that “a child's liberty interest…is to be treated invariably as on a par with that child's parents' contrary interests.”42 For the majority, children have long been precluded from being agents of their own being.
ii. Pre-1960s: Child-Saving Movement
Alongside these court decisions, national movements emerged, creating seismic shifts in the landscape of state control over young people’s lives. During the Progressive Era of the 1960s, the “child-saving movement” foregrounded the overriding state interest in protecting children.43 As made apparent by the name of the movement, on the surface, it had the semblance of aiming to improve the well-being and happiness of all children. Advocates of the child-saving movement called for child labor reform, compulsory education, and the establishment of a specialized juvenile justice system.44 However, Levesque and Zimring complicate this mission by instead characterizing the movement as a solution for middle-class families to differentiate and “save” themselves from the “dangerous” conditions of lower-class children.45 The new reforms policed the socialization of youths and imposed sanctions on conduct that middle-class women who spearheaded the movement deemed troublesome.46 Zimring adds that the values championed by the child-saving movement only made it harder for minors to make changes to or opt out of institutions that were given increasingly more control over their lives.47 The new “child-saving” legal mechanisms greatly empowered the government to instate protective but also punitive agendas for minors in all spheres of their lives including education, work, and encounters with the law.
d. Adolescents’ Autonomy Rights
Around the mid-twentieth century, the new adolescents’ rights movement started complicating the notion of “children’s rights” by differentiating children from adolescents as a discrete category. Through this differentiation, it created a middle ground between “child” and “adult.” The term “adolescence” was popularized in the 1900s, but the mid-1950s marked the beginning of the movement, also called the youth liberation movement.48 Advocates organized around the belief that adolescents should possess the same rights enjoyed by adults as well as the legal capacity to take control when the parent-child relationship is deficient.49 This vision posed a contradiction to the familiar understanding of the parent-child relationship and the concept of parens patriae. Furthermore, this space and the accompanying social science on this developmental stage fuel the current debate on the creation and protection of rights attached to the young people in this middle ground.
Courts, however, still do not have a universal, well-established legal standard to determine how to weigh a minor’s competence to make medical decisions. Some states have codified state laws that reflect a statutory principle called “Mature Minor Doctrine,” which aims to determine whether a minor is competent enough to make medical decisions.50 The Mature Minor Doctrine requires that courts consider the needs and consent of minors who have demonstrated a “maturity” to make decisions traditionally reserved for adults.51 As a result, it also requires the consideration of social science in the courts’ legal decisions.
However, there are two problems with the Mature Minor Doctrine. First, many states do not even have a rudimentary version of this doctrine, and second, there is substantial variation even in the states that have implemented it.52 Variation is inevitable because “maturity” and “competence”—often used interchangeably—have not been clearly defined. Maturity sometimes is broadly defined by the court as exemplified in Cardwell v. Bechtol (Tenn. 1987).53 The parents in this case filed a medical malpractice claim against a doctor for failure to obtain parental consent. To evaluate if the child had the capacity to make their own medical decision, the Cardwell court “considered ‘the age, ability, experience, education, training, and degree of maturity or judgment obtained by the minor…the conduct and demeanor of the minor at the time of the incident involved…[and] the totality of circumstances’ in addition to the standard treatment competence factors.”54 Some of these standard treatment competence factors include the minor’s capacity to “appreciate the nature, risks, and consequences of the medical procedure.”55 These conceptions often harken back to the MacArthur Treatment Competence Study, which identified four standards of competence: the ability to communicate a choice, to understand relevant information, to reason about treatment options, and to appreciate the situation and its likely consequences.56 Because of the broad and flexible definition of maturity, courts have considerable discretion in how these terms apply, rendering unpredictable outcomes.
Courts have urged psychologists to address another apparent inconsistency in adolescents’ decision-making capacity between criminal cases and medical autonomy cases. Two cases illustrate this contradiction: Hodgson v. Minnesota, in which a minor was attempting to obtain an abortion without the consent of their parents, and Roper v. Simmons,57 in which a minor was facing capital punishment. Both cases required the Court’s evaluation of adolescent decision-making capacity. Hodgson held that adolescents were comparable to adults in their decision-making capacity and hence did not require adolescents to notify their parents before terminating a pregnancy. However, Roper held that adolescents were inherently immature in their decision-making and hence less culpable in their crimes.58 This judicial “flip-flop” ignited unwarranted concerns among Supreme Court Justices, interest group advocates, medical professionals, and parents about the reliability of the scientific arguments about adolescent decision-making capacity.59 This ensuing confusion exposed a lack of understanding among critics regarding the prevailing science at the time. It also revealed that the courts’ formulation of social science understanding and the scientific community’s evolving comprehension of the research was not one-to-one.
e. Contemporary State of Research on Children’s Medical Autonomy
Soon after Roper v. Simmons was decided, psychologists Laurence Steinberg and Grace Icenogle produced research supporting the theory that two different dominant cognitions feature in various types of decisions, which they dub “cold” and “hot” cognition.60 They explain that abortion decisions generally differ from criminal decisions in that they are “deliberative, rational, and autonomous” while the latter is more “impulsive, emotional, and influenced by others.”61 In “cold” situations that are not affectively charged, numerous studies since the 1990s have found “no appreciable differences between adolescents age 16 and older and adults; any gains that take place in these domains during adolescence occur very early in the adolescent decade, and improvements after this age are very small.”62 Risky behavior such as “reckless driving, binge drinking, crime, and spontaneous unprotected sex” continue to be affected by psychosocial factors and be more prevalent in late adolescence and early adulthood than later in life.63 Other studies have found no differences in decision-making competence in adolescents 12 and older or 14 and older.64 This distinction effectually communicates that since medical decisions are generally void of effects like emotional arousal or social coercion which are present in situations that elicit impulsivity, older adolescents should be considered to have adult-like maturity when making medical decisions.65 Whether that translates to adolescents being given legal authority to make their own autonomous decisions, however, is not up to the developmental scientists, but jurists and politicians.
III. Secondary Literature
a. Amicus Briefs and Social Science in Courts
Much scholarship has charted the influence of amicus briefs on the court’s decision-making. Regarding amicus participation and citation, scholars have shown that the court’s reliance on non-legal authorities has skyrocketed.66 Larsen reveals that not only are more parties submitting briefs to the courts, but the rate at which courts cite these briefs has increased in the last several decades.67 She contends that the trend can be explained by global technological advancements that shaped people’s expectation for immediate access to information and the tendency to equate science with legitimacy.68 She also finds that about sixty-one percent of the time, Justices cite an amicus brief to support a factual claim without additional appeals to accompanying evidence.69 Larsen finds this surprising and argues that it demonstrates how the courts regard the amici as experts and less as a research tool.70 Because courts have been increasingly more reliant on amicus briefs, “which authorities they choose to cite are significant and have real consequences both inside and outside the Supreme Court building.”71
Despite a growing reliance on factual and scientific authorities, scholars assert that courts generally do not prioritize social science in their determination of minors’ medical decision-making rights. In 1992, Bersoff suggested that the Supreme Court showed a “seemingly increasing antagonism to social science evidence.”72 He argued that the Court bases its differential treatment of children on unsupported assumptions of their immaturity and their need for parental guidance.73 Rublin expanded on Bersoff’s criticism, identifying that the use of social science is inconsistent across different areas of the law.74 She explained that the inconsistency could be attributed to the varying public opinion on the issue or whether social science in that area is settled.75 Weithorn, a leading expert in the study of the minor’s legal competence, offered another observation on the court’s adjudicatory process: she posited in her 2020 work that psychological or neurological evidence of minors’ competence alone does not prompt courts to reconsider who gets to make healthcare decisions.76 Shifts only occur when the state’s interests or constitutional issues clash with the existing rights framework. Only then does social science finally play a role in informing the court’s inquiry into the legal competency of minors.77 This paper aims to contribute to the existing scholarship by determining whether these theories hold in the newer, unexamined parental notification, gender-affirming care, and vaccination cases.
b. Parental Authority’s Conflict with Mature Decision-Making
Parental rights have significant constitutional protections in the United States and cannot easily be limited even when in conflict with the minor’s best interests. Zimring blames the Constitution for erecting these impenetrable protections.78 The Due Process Clause of the Fourteenth Amendment protects the parent’s right to direct their children’s care, education, and upbringing.79 However, these traditional protections of parental rights conflict with recent research that demonstrates that adolescents can maturely make their own medical decisions.
As a result, most contemporary legal scholars generally advocate for an improved and unified approach to evaluating children’s competence in medical decision-making cases. Weithorn contends that the Court’s inconsistent application of the mature minor doctrine necessitates a more thoughtful consideration of the evolving understanding of adolescents’ competence.80 The broad and inconsistent nature of the mature minor doctrine produces different reactions among scholars. Weithorn argues that the open-ended considerations will leave decisions vulnerable to the biases of judicial decision-makers.81 Benston, however, suggests that the flexible discretion will allow more personally tailored investigations to occur, to take account of the minor’s life experiences and understanding of the medical treatment.82 This paper will evaluate whether the discretionary approach of the mature minor doctrine is likely to generate decisions that comprehensively consider minors’ autonomy interests and the relevant developmental literature.
Despite advocating for a more modern understanding of a minor’s capacity to consent and make autonomous decisions, some scholars maintain that the decision-making competence of adolescents should not automatically trigger a review of legal autonomy.83 Notably, many scholars acknowledge the arbitrary measurements of competence in minors yet still argue for the retention of a bright line rule separating children and parents in their ability to make medical decisions.84 However, Johnson makes a stronger case for the reevaluation of legal medical autonomy for competent children. Johnson argues that “while parents are important fact finders and stakeholders regarding their children's health and wellbeing, minors have an overriding right to follow public health guidance and choose vaccination.”85 She says that “[a]ny solution that does not meaningfully account for these minors’ views is missing a crucial element of the [] story.”86 This paper’s question will investigate whether courts are likely to adhere to the idea that proving decisional competence triggers the need for courts to reassess their autonomy in making medical decisions.
IV. Method
This paper will examine court opinions and amicus briefs on minors’ medical autonomy cases. The use of social science in minors’ reproductive rights cases will be compared with the use of social science in minors’ gender-affirming treatment cases and vaccination cases. Social science or a lack thereof will be identified where the court discusses or does not discuss adolescents’ decision-making capacity. Unsupported claims about young people’s competence or a disregard for social science amicus briefs are examples of what this paper would interpret as a deficient use of social science. The paper will be a qualitative analysis of if and how courts use social science and what that may say about the courts’ adjudication procedure.
V. Analysis
a. Parental Notification
Parental notification cases marked one of the first areas of law to prominently highlight the friction between the parental authority interest and the minor’s autonomy interest in a medical decision-making context. Beyond being the earliest space to acknowledge a minor’s decisional capacity, the extensive history and prevalence of these cases extend farther than those of any other type of medical decision-making. An analysis of these cases reveals that while adolescents’ autonomy interests are present, courts do not rely on social science to justify limiting or preserving parental rights. Instead, courts mostly use science as a rhetorical tool, use it inconsistently, or disregard it by opting for unsupported assumptions. Because of its expansive history in medical autonomy jurisprudence, reproductive rights jurisprudence provides a framework for how adolescents’ autonomy interests can be honored in the contemporary debates around vaccination and gender-affirming care cases. It also provides a preview of the courts’ thoughtlessness with social science.
i. Unsupported Assumptions and Disregard for Social Science
In the early 1970s, the Supreme Court heard a handful of notable cases challenging laws that restricted abortion. There was no clear standard or requirement for using social science. In Roe v. Wade (1973), which upheld the constitutional right to have an abortion, the Court asserted without any empirical evidence that “[m]aternity, or additional offspring, may force upon the woman a distressful life and future” to conclude that “[m]ental and physical health may be taxed by child care.”87 Though this claim now has robust empirical support, the majority did not find it necessary to include such support in their decision. The Court in Roe seemed to rely on common sense, just as it did in Muller v. Oregon when it asserted that “[i]t is impossible to close one's eyes to the fact that [women] still looks to her brother and depends upon him.”88Roe and Muller demonstrated how the overfamiliar prevailing ideology of the time can preclude social science from even entering into opinions.
Early cases involving the right of minors to access abortion likewise relied more on judges’ assumptions about children’s mental capacity than social science research. Bellotti v. Baird (1979) was a landmark case in which the Court created a judicial bypass requirement for minors whose right to seek an abortion was unduly burdened by parental notice and consent laws.89 However, the Court limited the right to judicial bypass to only “mature” minors because according to the opinion, most others “lack[ed] the ability to make fully informed choices.”90 The Court failed to adequately evaluate the evidence from a lower court that most minors under 18 were capable. The Supreme Judicial Court of Massachusetts had believed that “many, perhaps a large majority of 17-year olds are capable of informed consent, as are a not insubstantial number of 16-year olds, and some even younger.”91 Instead of deferring to the state court’s factual findings or basing their decision on empirical evidence, the Supreme Court cited Planned Parenthood of Central Missouri v. Danforth to support an opposite claim—that minors are mostly incapable of informed consent and should be assumed to be immature.92
However, looking at the cited precedent of Danforth, no developmental literature is proffered to support the assumption that all minors are mostly immature. The section that the Bellotti court cites is as follows. The Danforth Court declares that the decision to get an abortion is “a grave decision, and a girl of tender years, under emotional stress, may be ill-equipped to make it without mature advice and emotional support.”93 First, this statement presumptively assumes that minors are too stressed to make proper decisions without any empirical evidence supporting this conclusion. Second, with notably condescending language, the Court refers to the minor’s not-yet age of majority as “of tender years,” which has been regarded since nineteenth-century common law to describe persons aged four and under.94 By associating the adolescent with a toddler, the Court further emphasizes the minor’s immaturity, once again without empirical support. Following that sentence, the Court articulates that “[i]t seems unlikely that she will obtain adequate counsel and support from the attending physician at an abortion clinic, where abortions for pregnant minors frequently take place.”95 The footnote tacked to the end of the statement details the insubstantial procedure that is followed by just one abortion clinic. Instead of relying on any studies that address the likelihood of clinics providing minors with counseling and support, the Court generalizes that since one clinic failed to testify about the counseling services of their clinic, all minors across the nation are unlikely to receive them. All these unsupported and unreliable claims are used to justify the immaturity of minors, which leads the Bellotti Court to conclude that state oversight of a minor’s exercise of her right to an abortion is necessary.
Ultimately, the Bellotti Court does not explain why the Plaintiff’s expert testimony on adolescent maturity should be dismissed. The Court rules that all minors under the age of eighteen should participate in a judicial proceeding to demonstrate their maturity if they desire an abortion without parental consent and notice.96 As four Justices write in the concurring opinion, “the need to commence judicial proceedings in order to obtain a legal abortion would impose a burden at least as great as, and probably greater than, that imposed on the minor child by the need to obtain the consent of a parent.”97 This decision preserves the assumption that most minors are immature and imposes a significant burden on a majority of sixteen- and seventeen-year-olds who wish to obtain an abortion without parental consent. With only a careless citation to an equally unsupported decision in Danforth, the Court maintains that minors are mostly immature and remains silent on why the evidence that demonstrated the capacity of sixteen- and seventeen-year-olds should be ignored. An absence of a rationale explaining the choice to affirm certain assumptions and dismiss certain studies illustrates the Court’s disregard for social science.
ii. Inconsistent Use of Social Science
The Court later considered whether the judicial bypass requirements of an Ohio statute imposed an undue burden on a minor seeking an abortion in Ohio v. Akron but still failed to incorporate social science that proves the absurdity of the bypass procedure.98 In Akron, the minor argued that the complicated pleading scheme could be confusing for minors who have never navigated legal documents. In response, the Court wrote that while “the pleading scheme could produce some initial confusion because few minors would have counsel when pleading, the simple and straightforward procedure does not deprive the minor of an opportunity to prove her case.”99 Ironically, while the Court is limiting the minor’s right to make a decision about their body because of their supposed lack of mature thinking, the Court requires minors to be intellectually mature enough to navigate legal documents. Without any support validating that minors would find an unfamiliar legal system “simple and straightforward,” the Court assumes their maturity in this instance. The Court’s arrogant assumption of immaturity in Bellotti and Danforth, then their sudden assumption of maturity in Akron demonstrates the Court’s noticeable lack of regard for developmental literature. The Akron Court concludes its opinion with a pompous and paternalistic paragraph gesturing to the importance of the family, defining it as “society’s most intimate association” to “a lonely or even terrified minor.”100 This homage to the family exposes a refusal to acknowledge the American Psychological Association’s (APA) amicus brief that details adverse and abusive families and homes and provides a scary estimate of children and adolescents who suffer from parental abuse or neglect.101 Without consideration for minors who are “lonely or even terrified” in their not-so-“intimate” families, the opinion’s final sentence drives the message home: “[i]t would deny all dignity to the family to say that the State cannot take this reasonable step in regulating its health professions to ensure that, in most cases, a young woman will receive guidance and understanding from a parent.”102 The Court highlights that their priority is to uphold the dignity of the family unit and the rights of parents, and studies that do not fit into this narrative are left out.
In the same year, the Court considered whether requiring children to notify both parents was an undue burden in Hodgson v. Minnesota, but in stark contrast to Akron, the opinion is peppered with evidence that the decision was informed by social science.103 To state that a two-parent requirement was potentially harmful to the many children living with separated parents, the Court cites the APA’s Brief, with relevant statistics regarding children in one-parent homes.104 The Court also cites statistical evidence of family violence and psychological evidence that victims of abuse are reluctant to reveal the existence of abuse in the home.105 Despite both cases being decided in the same year and concerning the same subject matter—the burden a requirement could have on a minor—the Court’s level of reliance on social science is radically different between Akron and Hodgson. While Akron decided to affirm the burdensome requirement despite social science, Hodgson decided to use social science to remove a barrier for minors. This drastic difference indicates that the Court is not consistent in its application of social science. It could potentially be explained by the ideological leanings and the rhetorical and methodological preferences of the Justice delivering the opinion. While Justice Kennedy delivered the majority opinion for Akron, Justice Stevens delivered Hodgon. As suggested by Roscoe Pound, Justices vary in their ideological leanings and legal principles, which is bound to affect the legal reasoning process.106
After Hodgson (1990) was decided, there was an explosion of developmental research on decision-making capacity. Decisional capacity in the criminal context was examined, and from the surface, it appeared that developmental researchers were producing inconsistent data. The data suggested that adolescents can make mature decisions when it comes to their medical care but are vulnerable to impulsive, immature decisions when it comes to committing crimes.107 Granted, no knowledge-making, including science, can avoid bias.108 However, some members of the Court like Justice Scalia misunderstood the nuanced conclusions about adolescents’ maturity to be cherry-picking without understanding the differences between hot and cold cognition. Justice Scalia protested in his dissenting opinion of Roper v. Simmons (2005), which ruled that capital punishment cannot be imposed on minors due to their immaturity: “The American Psychological Association (APA), which claims in this case that scientific evidence shows persons under 18 lack the ability to take moral responsibility for their decisions, has previously taken precisely the opposite position before this very Court.”109 This confusion among the legal actors generated further conflict about parental notification laws.
Ayotte v. Planned Parenthood of Northern New England was decided on the heels of Roper to address the APA controversy.110 An amicus brief submitted by The United States Conference of Catholic Bishops and the Roman Catholic Bishop of Manchester shows that part of Ayotte’s purpose was to address the APA’s alleged “flip flop”: 111
“[p]arental involvement is critical to ensure not only that the adolescent’s choice is informed, but that it is freely made and not the result of coercion or duress. . .. These concerns are heightened for adolescents who, as this Court has recently observed, are more susceptible than adults to ‘outside pressure’ and other ‘negative influences,’ and more likely than adults to make decisions that are ‘impetuous and ill-considered.’ Roper v. Simmons, 125 S.Ct. 1183, 1195 (2005)”112
Despite the social science from Roper that the brief directly alludes to, the Ayotte opinion does not acknowledge or discuss how the APA’s brief for Roper complicated the understanding of the capacity to make informed decisions about abortions. Thus, the decision communicated that the Court felt no pressure or need to address the crucial social science issues presented alongside legal questions even if they were overtly raised in the amicus briefs.
Regardless of the Court’s inconsistent application of developmental literature in their parental notification cases, their inclusion of the minor’s decision-making capacity—though skewed and inconsistent—in the calculation of medical rights was a pioneering move. Later in Planned Parenthood of Southeastern Pennsylvania v. Casey, the Court reaffirmed the holdings in Bellotti and Akron, especially the requirement of a judicial bypass procedure.113 Through the retained bypass procedure, the maturity to make informed decisions became a cornerstone in the calculation of minors’ abortion rights.
iii. A New Evidentiary Requirement: Successes and Futilities
After years of inconsistent and unclear use of factual findings, Whole Woman’s Health v. Hellerstedt finally commented on the judicial responsibility regarding social science in abortion regulation cases.114 The Supreme Court insisted that when considering whether any burden imposed on abortion access is “undue,” courts must thoroughly weigh factual evidence of the benefits and burdens of the law, which includes “expert evidence, presented in stipulations, depositions, and testimony” from lower courts and “factual findings and the research-based submissions of amici.”115 The majority rejected the lower court’s contention that courts must defer to the legislature when posed with a question of medical uncertainty. With this renewed undue burden standard, the Court reviewed numerous sources of social science: the district court’s findings, both parties’ expert testimonies, and amici briefs. The Whole Woman’s Health (WWH) Court also created a precedent to evaluate whether the evidence presented was sufficient and credible. For that evaluation, the WWH Court checked whether cited studies were peer-reviewed and whether other studies agreed with the research. Though WWH was not a case about minors and though it no longer is precedent after being overturned by Dobbs v. Jackson, the undue burden test was employed in minors’ parental notification cases and triggered the evidentiary requirement of WWH until Dobbs.116 By mandating an evidence-intense requirement as part of the undue burden standard, WWH banned courts from substituting science with their assumptions as it did in Akron and a handful of other cases in the past.
Though the Court clearly articulated the undue burden standard’s requirements, its application was still not neat and was still susceptible to the ideological leanings and biases of adjudicators. Two contemporary cases on parental notification laws demonstrate both the success of the renewed standard and the persistent difficulty with evaluating factual findings: Planned Parenthood of Indiana and Kentucky v. Adams and Bristol Regional Women’s Center, PC v. Slatery.117
The Seventh Circuit employed a rigorous application of the renewed undue burden standard in Planned Parenthood of Indiana and Kentucky v. Adams to evaluate a new parental notice requirement in Indiana’s abortion statute. The new abortion statute required minors who had already been approved to get an abortion through the bypass procedure to notify their parents before the procedure was performed.118 The Seventh Circuit used factual findings from the district court to evaluate the issue. One of the main areas of uncertainty was the size of the group this law would affect. While the State argued that the law would only affect a small number of minors that the judicial bypass process deemed mature, the court countered with factual evidence from the record showing that the statute would affect a larger group of minors. These minors would be unduly burdened, as they would be prevented from even seeking bypass for fear of physical, emotional, or financial violence from their parents.119 The Seventh Circuit also criticized the lower court for failing to comply with WWH’s evidentiary requirement by providing no evidence that the statute was solving a problem and that the law would reasonably be expected to solve it.120 The dissent attacked the majority’s hypocritical failures to provide enough evidence by characterizing the opinion as only including “several declarations from individuals involved in the bypass process discussing their personal observations and anecdotes and a declaration by one child psychologist discussing the challenges which children in abusive homes face in obtaining abortions.”121 The criticism appears to be unfounded, as the majority fortified all of their factual findings with evidence from lower courts and historical concerns about the deterrent effects of similar laws in cases like Casey and Indiana Planned Parenthood Affiliates Ass’n v. Pearson (7th Cir. 1983).122 Adams hence demonstrates how the WWH evidentiary requirement can be effectively applied to evaluate minors’ abortion restrictions.
Bristol Regional Women’s Center v. Slatery, however, showed that Whole Woman’s Health was not foolproof in guiding the courts’ fact-finding responsibility.123 Although this case did not involve parental notification, it revealed the persisting vulnerabilities of the renewed standard to arbitrary and ideological rulings. In this case, the Sixth Circuit reversed the district court’s ruling to uphold Tennessee’s 48-hour abortion waiting period. Though WWH instructed the courts to fully examine amicus briefs, expert testimonies, and findings from the lower courts, the Sixth Circuit failed to conduct a comprehensive review.
The submissions emphasized the numerous burdens the law posed for pregnant women, particularly low-income women, who represent seventy-five percent of those seeking abortions.124 For these women, the record demonstrated that an extended waiting period creates detrimental financial and logistical hurdles, including but not limited to tending to and recovering lost wages, additional travel expenses, and childcare.125 A delay also causes women to miss the cutoff for abortions, forcing them to resort to invasive surgical procedures.126 The district court also extensively discussed how the law stigmatizes women and exacerbates harmful stereotypes.127 Moreover, the district court found a glaring issue with the credibility of the State’s expert witnesses. They were revealed to be relying on research that required “inferential leap[s]” and was “too politically minded.”128 The witnesses also conceded that they had strong beliefs about the morality of abortions.129 In contrast, the Plaintiffs’ expert testimonies were uncontested.
However, the Sixth Circuit neglected to address the relative credibility of the evidence and dismissed hastily the evidence of the burdens without analyzing its merits. The majority mentioned just one piece of the extensive evidence to sidestep it with an argument that the new statute only decreased the number of abortions performed by nine percent, which they characterized as too small of a number to constitute a significant burden.130 The court failed to properly review the science despite the WWH requirement that courts must check whether the introduced findings were peer-reviewed and whether they agreed with other research. Bristol Regional Women’s Center showed how even an explicit evidentiary requirement could not prevent the hasty indifference or capricious decision-making of the court. Therefore, the case highlighted the limitations of the WWH standard in guiding and requiring courts to pay proper attention to social science.
Cases involving parental notification offer evidence that aligns with Bersoff’s theory more than Weithorn’s theory regarding the use of social science in judicial decision-making. Weithorn asserts that minors’ decisional capacity at least becomes relevant after courts identify policy and constitutional interests.131 Justices appear to prioritize constitutional and policy interests, which seems reasonable considering that they are trained in the law, which has long been picky about faith in non-legal authorities. However, contrary to Weithorn’s position, decisional research ultimately does not seem to legitimately inform the law. The court’s reliance on unsupported assumptions about minors’ maturity and family dynamics indicates that social science has minimal influence. Even when courts use social science to justify decisions, the process by which Justices choose which evidence to use or disregard remains often unexplained and arbitrary. Considering that this practice persists even after the evidentiary requirement was imposed in WWH, it reveals that courts do not prioritize using methodologically sound research or legitimately evaluating the quality of social science. Not caring about the legitimacy of the science could suggest that social science is used as a performative flair to support preconceived conclusions. These parental notification cases refute Weithorn’s claim that the courts ultimately care about social science while aligning more closely with Bersoff’s claim that the courts do not care for social science.
b. Gender-Affirming Care
Recent cases involving minors’ access to gender-affirming treatment have emerged in the wake of bills restricting their access to such medical care. Like abortion restrictions, these bills criminalize medical providers who aid minors in obtaining the contested medical care.132 While these bills are designed to be mechanically similar to abortion restrictions, gender-affirming treatment cases do not employ the mature minor doctrine in their preliminary injunction cases. Instead, parental rights are used to argue that the state lacks the authority to direct minors’ medical decisions. Along with the focus on parental rights, these cases completely and absurdly disregard the danger of parental control in sensitive adolescent medical decisions—a concern that was so prominently established in the parental notification cases of the 1970s. Consequently, social science on adolescents’ decisional maturity that was submitted to the courts has not been incorporated into the courts’ decision-making. This section will first review the policy landscape of anti-gender-affirming healthcare laws. Then, it will comment on the inconsistent use of two different bodies of social science on decisional capacity and gender dysphoria. Lastly, it will interrogate how and why gender-affirming healthcare jurisprudence has not reflected the parental notification jurisprudence.
i. Policy Landscape: State as the Child-Saving Protagonist
Arguably, significant progress has been made in the last decade to advance protections and start and continue conversations for the right of transgender and genderqueer minors.133 However, these victories have also incited hostility. The political right has introduced aggressive initiatives to restrict transgender and gender non-confirming individuals’ access to bathrooms that align with their gender, opportunities like military service and competitive sports, and medical care, specifically access to gender-affirming care.134 These bills are packaged as states’ attempts to protect children from the harms of gender-affirming treatment and those who promote it.
In the wake of these laws, four key preliminary injunction requests brought by four groups of adolescent plaintiffs have been moving through the federal and state courts. In preliminary injunction cases, courts only consider whether the plaintiff is “likely” to succeed on the merits, so these opinions do not provide a final ruling. Nevertheless, these cases are instrumental for this paper’s analysis, as they provide a first look into how courts are thinking about minors’ access to gender-affirming healthcare and whether and how they include social science in the calculus of a minor’s access and right to this healthcare.
The new anti-affirmation initiatives restrict minors’ access to gender-affirming healthcare in two different ways. The first category criminalizes those who provide minors with gender-affirming care. Two restrictions fall under this category: the “Alabama Vulnerable Child Compassion and Protection Act,” which was challenged in Eknes-Tucker v. Marshall, and Texas Governor Greg Abbott’s issuance of a directive defining certain gender-affirming care as child abuse, which was challenged in Doe v. Abbott.135 The second category excludes the treatment from state funding support, by limiting coverage under programs like Medicaid. Arizona’s Medicaid program policy (Arizona Health Care Cost Containment System) excluded gender reassignment surgery from coverage and was challenged in Hennessy-Waller v. Snyder.136 Arkansas’s “Save Adolescents From Experimentation (SAFE) Act, partly challenged in Brandt v. Rutledge, falls under both categories by banning doctors from providing treatment, minors from using public funds, and minors from using insurance to cover these gender transitioning procedures.137
The name and the stated objectives of the restrictions demonstrate the states’ intent to posture as bulwarks against the corruption of children, from the minor’s own immaturity, their uninformed parents, and their unethical physicians. Arkansas, by designating the acronym “SAFE” to represent their bill, insinuates that minors are unsafe and in need of protection—specifically from dangerous “experimentation” on their bodies. Alabama’s “Vulnerable Child Compassion and Protection Act,” too, uses its title to bring before the eyes the image of a “vulnerable child” who lacks and needs “compassion” and “protection.” In Texas, Governor Abbott not only imposes a duty on all state agencies but especially on the Department of Family and Protective Services (DFPS) to investigate for abuse where gender-affirming treatment is being provided. In painting parents and doctors who aid children to obtain treatment as abusers, it also portrays the state as the savior.138 On the surface, the rhetoric that these three states have utilized parallels a commonly accepted legal principle of parens patriae.139 Just as the government was given broad authority to regulate the contours of children’s employment in the name of protection, the stated intentions of these laws create an appearance that fits into that narrative. Insidiously though, the statutes manipulate the rhetoric, stigmatizing and criminalizing healthcare and the right to choice.
ii. Absurd Absence of Adolescent Autonomy Interest & Science
These restrictions operate on a central premise that vulnerable minors should be protected from the harmful influence of parents and doctors. If legislatures feared that gender-affirming care was inherently dangerous, they would have outlawed the procedure for not only minors but also adults. Because the principal justification for these restrictions was to protect vulnerable minors, the laws only target minors. For example, the SAFE Act specifically bans gender-affirming healthcare for individuals under eighteen years of age, illuminating how the law is meant to protect young people, specifically vulnerable for their young age. Arkansas agrees, expressly stating that gender-affirming treatment is dangerous for minors because they may unknowingly agree to treatment.140 The capacity of minors to understand and appreciate the consequences of a medical procedure is central to this concern.
Intuitively then, it seems like a prominent argument to combat this rhetoric of dangerous helplessness is to prove that minors are not especially vulnerable to the malignant influences of adults. Curiously though, the legal tension does not center around the minor’s right to medical treatment but rather the parent’s right to make medical and religious decisions for their child. Most importantly, even in striking these restrictions down, courts do not make an effort to counter the special vulnerability justification. Despite the social science on decisional capacity submitted to the courts, this section will show that courts leave the research unexamined. As a result, the question of whether minors have the right to make autonomous decisions about their healthcare remains neglected and unaddressed by the law. When they do use social science, it is done inconsistently: even when given a similar repertoire of scientific questions to answer and factual findings to evaluate, the courts have interpreted them inconsistently and arbitrarily.
The decision in Brandt v. Rutledge lacks discussion regarding the medical autonomy of minors.141 In 2021, four transgender youth, their families, and two doctors filed a lawsuit challenging Arkansas’s SAFE Act. The SAFE Act prohibited healthcare professionals from providing gender transition treatments to anyone under eighteen years of age.142 In adjudicating the legality of the SAFE Act, neither the district court nor the Eighth Circuit meaningfully addressed the issue of decisional capacity or autonomy. The courts’ silence on minors’ autonomy powerfully communicates their disinterest in expanding or even protecting minors’ autonomy interests.
Numerous medical, social scientific, psychological, and healthcare professionals and groups submitted amicus briefs. Among them was a brief penned by the Biomedical Ethics and Public Health Scholars that specifically belabored how the Act forces healthcare providers to disregard minors’ autonomy in this medical decision.143 Addressing the legality of the Act, the brief specified that it violates state-mandated informed consent requirements. It argued that the law would force medical providers to neglect key tenets of biomedical ethics, which includes an investigation of patient competence, disclosure, comprehension, voluntariness, and consent.144 Despite the submission, the Brandt court did not even broach the issue of the minor’s capacity to make competent and voluntary decisions in their opinion.
Despite an acknowledgment of how foreign jurisdictions have incorporated decisional capacity research on the law shaping access to gender-affirming healthcare, the Brandt district court declines to meaningfully extend the significance of those conclusions to its own case. The only mention of decision-making competence can be found in a citation to Bell v. Tavistock and Portman Nat’l Health Serv. Foundation Trust, which was a U.K. High Court case deciding whether a sixteen-year-old minor can make mature decisions about puberty blockers for gender dysphoria.145 The district court acknowledged the U.K. High Court’s finding that a sixteen-year-old is “presumed to have the ability to consent to these procedures” even though it is “unlikely” or “doubtful” that thirteen-, fourteen-, and fifteen-year-olds could give consent.146 However, without analyzing what this statement means for the SAFE Act’s age-specific ban, the district court quickly concluded that Tavistock was mentioned only to support how the Act discriminates on the basis of patients’ gender identity.147 The district court declines to discuss Tavistock’s key significance in constructing a legal understanding of adolescents’ right to autonomously consent to gender-affirming treatment. Though both the Arkansas district court and the Eighth Circuit agreed to grant the preliminary injunction, the missing analysis of Tavistock and the Biomedical Ethics and Public Health Scholars brief shows the court’s lack of care for adolescents’ medical autonomy.
A similar partiality against maturity science shows up in Eknes-Tucker v. Marshall.148 Four minors, their parents, and two medical professionals brought the case to Alabama district court in 2022 to challenge the “Alabama Vulnerable Child Compassion and Protection Act.” The court spilled much of its ink highlighting the Due Process violation of parental rights and the First Amendment violation of the physicians’ speech. By only mentioning the violation of the parents’ autonomy rights and failing to even entertain the autonomy interest of minors affected by the restriction, the court unaffectedly snatches the spotlight away from the minors and puts it on the parents. The opinion renders the parents and physicians and their liberty interests as the injured parties while taking attention away from the real victims. In giving no airtime to the discussion of maturity, the Alabama district court, too, neglects the protection and advancement of young people’s autonomy interests.
Only at the end of Eknes-Tucker does the court discuss the irreparable physical and psychological harm it would cause for minors. However, this discussion exposes the court’s interest in advancing societal interests rather than prioritizing the psychological realities of adolescent minds. First, the court mentions expert testimonies showing that untreated youths will suffer from physical and psychological harm: their anxiety, depression, eating disorders, substance abuse, self-harm, and suicidality may worsen.149 Then, the court cites evidence to show that their “familial relationships and educational performance” will deteriorate.150 The court’s special interest in the deterioration of familial relationships and educational performance indicates its priorities. Doing well in school and getting along with family are critical elements to the maintenance of a productive citizenry. While the court freely uses social science to bolster claims that support the state interest in productivity, it is omitted when it comes to individual autonomy interests. This selective prioritization exposes the court’s asymmetrical interest in protecting the family unit and a productive citizenry and relative apathy for the interests of eighteen- and nineteen-year-olds to make rightful decisions about their own bodies without state and parental control. This neglect of decisional research is more absurd knowing that the Alabama law restricts gender-affirming medical care for all individuals up to nineteen years of age, subordinating an even larger and older age group relative to other states.
The court’s prejudiced use of social science complicates the rhetoric that the courts care about the best interests of minors. The minor’s interests are not entirely unrepresented since courts that have granted injunctions based on the plaintiffs’ Equal Protection claims are essentially affirming the minor’s interest to not be discriminated against based on sex. However, the court seems to ignore a glaring hole in their decisions: it ignores the nineteen-year-old whose parent agrees with the state and restricts their child’s access to medical care. Both Brandt v. Rutledge and Eknes-Tucker v. Marshall, cases that granted the injunction, also largely focus on the merits of the Due Process parental rights claim. Under the courts’ formulation, the nineteen-year-old will have to defer to their parents regardless of their decisional capacity and regardless of the irreparable physical and psychological harm that these restrictions could inflict.
Granted, the purpose of a preliminary injunction is to prove or disprove that the plaintiff is likely to succeed on the merits, so utilizing legal frameworks and arguments that are most likely to succeed would be a pragmatic strategy. Nevertheless, in an opportunity to address how the law invalidly restricts the freedom of mature minors to make their own decisions about their bodies, the courts instead opt for an argument that would channel power away from the states and to the parents. Thus, while it seems like the courts are siding with the minor in granting the preliminary injunction and preventing their access to medical care from being completely stripped away, the liberty interests of young transgender and gender-diverse individuals are being neglected.
The courts, by maintaining silence, renders young individuals powerless against the whims of their parents and exposed to a significant risk of enduring severe psychological harm, a risk of which the courts seem to be acutely aware. By sidelining research on the decisional capacity of minors, courts communicate their disinterest in protecting the liberty interests of young people.
iii. Citation of Unreliable Social Science
Courts evaluate scientific literature on gender dysphoria inconsistently and capriciously. While social science on decisional capacity is lacking, gender dysphoria research is used to promote minors’ access to gender-affirming healthcare. However, even when deciding on identical issues with similar bodies of factual findings, courts come to varying conclusions. A comparison of Brandt and Eknes-Tucker to Hennessy-Waller demonstrates the courts’ willingness to use social science and also exposes methodological inconsistencies. In all three cases, courts heard expert testimonies and received amici briefs from both sides that presented contradictory scientific evidence. Eknes-Tucker and Brandt both came to the conclusion that there was overwhelming evidence that gender-affirming care was safe, helpful, and not experimental with a lack of credible evidence proving otherwise. However, Hennessy-Waller v. Snyder produces the opposite conclusion, holding that there is not enough evidence of the treatment’s safety, despite being decided in the same two-year timespan as Eknes-Tucker and Brandt.
In Eknes-Tucker, the court emphasizes how it took into account the amici briefs submitted by healthcare organizations and the Plaintiffs’ expert’s testimony that “at least twenty-two major medical associations in the United States endorse transitioning medications as well-established, evidence-based methods for treating gender dysphoria in minors.”151 It acknowledged that it received and took under advisement the amici briefs of fifteen states and the expert witnesses supporting Arkansas.152 During cross-examination, the court also discovered that the Defendants’ expert had no experience treating children or adolescents with gender dysphoria and mainly treated patients who were, on average, thirty years old.153 With this information and the fact that an overwhelming number of major medical associations endorsed gender-affirming medical care, the court opined that the defendants had no credible evidence to show that the treatment was dangerous and experimental.
Brandt also concludes that gender-affirming care is safe and effective by relying on evidence from the record and from international authorities. Brandt’s district court opinion relied on amicus briefs submitted by medical organizations to emphasize that “[e]very major expert medical association recognizes that gender-affirming care for transgender minors may be medically appropriate and necessary to improve the physical and mental health of transgender people.”154 The Eighth Circuit went even further to affirm that conclusion: it rejected Arkansas’s criticism of the hormone therapy study designs and referred to evidence in the record that shows that these procedures were evaluated in the same manner as other medical innovations.155 The court also turned to international authorities and standards. First, it cited surveys by the British National Institute for Health & Care Excellence that demonstrated the positive effects of hormone therapy for adolescents with gender dysphoria.156 The court also found more nuanced support from the Council for Choices in Health Care in Finland. These studies asserted that despite the experimental nature of gender reassignment practices, they should be protected and available in appropriate circumstances including when the adolescent already has coexisting psychological issues.157
Despite the consonance between Brandt and Eknes-Tucker’s assessment of gender-affirming therapy, Hennessy Waller v. Snyder rendered a contradictory analysis. This case was presented before the Arizona District Court during the same year as Arkansas’s Brandt v. Rutledge. The case challenged the Arizona Health Care Cost Containment System’s decision to exclude male chest reconstruction surgery from its coverage. Unlike in Arkansas and Alabama, the Arizona district court denied the Plaintiffs’ preliminary injunction request because it found that the Plaintiffs failed to demonstrate that male chest reconstruction surgeries were necessary, safe, or effective in correcting gender dysphoria.158 Furthermore, the court said that denying treatment would not inflict irreparable harm on minors.159
The Arizona district court displays a lack of respect for social science, as evidenced by their dismissal of credible data. Just like in Eknes-Tucker and Brandt, an amicus brief submitted by a handful of medical associations points out that “major medical and mental health organizations in the United States all recognize that these treatments for gender dysphoria, including for adolescents, are safe and effective.”160 The amicus brief also underscores that all these organizations consider the surgery to be necessary.161 Despite this information—that was found to be critical and compelling in Eknes-Tucker and Brandt—the court refused to address or even mention this statement.
Both the district court and the Ninth Circuit show a preference for unreliable experts and research, exposing their unreasoned and arbitrary selection of social science. The Ninth Circuit highlights the testimonies of Arizona’s endocrinologist and sexuality psychiatrist who assert that there was “no high-quality study showing male chest reconstruction surgery is safe, effective, or optimal.”162 These experts, however, have questionable backgrounds, as Dr. Aron Janssen criticizes in a Reply Expert Declaration. They did not work with adolescents, were not board-certified in child and adolescent psychiatry, and made basic and critical errors in their delivery of medical knowledge.163 Furthermore, Dr. Janssen pointed out that Arizona’s experts falsely criticized the lack of “high-quality studies” supporting the safety of chest reconstruction surgeries while ironically supporting their own arguments with studies from non-scientific journals—one of which was an “opinion journal edited by Ryan Anderson, an outspoken opponent of treatment for gender dysphoria who has no medical training.”164 While the State’s experts were cited numerous times, evidence from the Plaintiffs’ experts was not discussed. The court wholly failed to discuss the contributions in the Plaintiffs’ amicus brief, which argued that surgery is necessary to treat gender dysphoria and the accompanying psychological illnesses, including serious anxiety and depression, self-harm, and suicidality. Dr. Aron Janssen also points out that therapy and medication are only a “temporary band-aid” for severe gender dysphoria.165
In Eknes-Tucker and Brandt, despite opposing expert testimony, the plaintiffs were favored because of the glaring unreliability of the state’s experts and the overwhelming support from reputable medical and mental health organizations. However, while the same evidence was available to the Snyder courts, they preferentially referenced Arizona’s experts and excluded the Plaintiffs’ experts in their decision-making. As a result, they failed to impartially evaluate the available social science. This failure to assess evidence without prejudice underscores the arbitrary inconsistency in the courts’ approach to social science in gender-affirming healthcare cases.
IV: Contextualizing this Disregard for Social Science
Both parental notification cases and gender-affirming healthcare cases demonstrate the court’s continued practice of using ambiguous and arbitrary standards and interpretations of social science. Even though abortion parental notification cases have already laid the groundwork for inquiries regarding autonomy interests in minors, gender-affirming healthcare cases still neglect this crucial question. This reluctance persists even as the courts strike down restrictions to gender-affirming care, leaving the question of how mature minors could receive necessary healthcare without state or parental permission unexplored. Imposing parental notification or permissions could result in the denial of crucial medical care and was established in the reproductive healthcare context. Although there is a judicial bypass system for cases where parental notification is required, cases about gender-affirming care appear to ignore the pertinent history and social science even as the courts acknowledge the harm parents can inflict by withholding medical treatment. Only one thing remains consistent between gender-affirming treatment cases and parental notification cases: the inconsistency in the courts’ use of social science.
However, the inconsistencies in the use of social science in gender-affirming cases may stem from reasons distinct from those of parental notification cases. Firstly, the absence of decisional research could be attributed to the fact that these cases involve preliminary injunctions, where the courts generally aim to identify the most compelling merits to establish that the plaintiff is likely to succeed in their claims. Constitutional challenges that trigger strict scrutiny are likely more compelling for a preliminary injunction. These stricter constitutional hurdles arise from Due Process challenges under the parental rights framework or First Amendment challenges under the medical professional’s free speech framework. Still, even despite the relative strength of constitutional challenges, courts ignored all support regarding decisional maturity and the minors’ autonomy interests. One may speculate that courts could consider these interests in permanent injunction hearings, as the UK High Court did in Tavistock.
Secondly, the cherry-picking of social science may be attributed to the politically and ethically controversial nature of gender-affirming care. Although major medical associations emphatically agree that most forms of gender-affirming healthcare—including puberty blockers and chest reconstruction surgeries—are safe and necessary for minors, there is an ethical and political divide in the medical community, with some medical professionals characterizing these treatments as child abuse.166 While abortions for teenagers were and remain politically contentious, it is not the premise of their pregnancy that is disputed. In contrast, transgender and gender non-conforming minors face an additional barrier of dealing with people who deny their dissonant gender identities. Considering the politicization of LGBTQ+ rights, courts may be more likely to receive the medical and scientific community’s research with bias.
c. Vaccines
The notion of ‘autonomy’ appears to fundamentally conflict with compulsory vaccination mandates. Courts hardly consider adolescent autonomy interests when minors challenge compulsory vaccination laws. Even in cases where the minors are joined by parents in their refusal of state-mandated vaccination schemes, cases such as Zucht v. King, Brown v. Stone, and Boone v. Boozman167 represent the consistent judicial disregard for autonomy interests. These opinions adopt a strict stance, plainly dismissing the minors’ autonomy interests in prioritization of public health interests. Courts do not even give much weight to parents’ authority interests and religious freedom interests. The disregard for parental autonomy interests makes plain that the minors’ autonomy interests will not be given due weight. Absent an interest in autonomy, courts accordingly do not engage with social science research on decisional capacity. Through an analysis of these cases, this first section will shed light on the court’s dismissal of minors’ autonomy in the vaccination context.
However, even when minors invoke their autonomy interests not to challenge public health mandates but to opt into them against the dissent of their parents, the court still overlooks their autonomy interests and the relevant social science. This novel question, of whether minors should be allowed to receive a vaccine against the disagreement of the parents, could make space in the vaccine jurisprudence to recognize minors’ autonomy interests. No case appeared to prominently address this child-parent vaccine conflict until Booth v. Bowser (D.D.C. 2022).168 This case involved the Minor Consent for Vaccinations Amendment Act of 2020 (MCA), which was promulgated to recognize adolescents’ maturity and decisional capacity.169 However, despite the unambiguous purpose of this Act, autonomy rights were once again glossed over in the district court’s opinion. Through an analysis of Booth v. Bowser, the paper will identify how the court evades the discussion of decisional capacity even in a case so overtly implicating the maturity doctrine. Lastly, this section will attempt to make sense of this judicial stance about autonomy in vaccination cases.
i. Dismissal of Minors’ Autonomy
Courts have historically adopted a dismissive stance toward refusals of state-mandated vaccination schemes. In Zucht v. King, sixteen-year-old Rosalyn Zucht challenged the city vaccine mandate’s constitutionality on the grounds that her due process and equal protection rights were violated.170 Excluding the paragraph with the facts and procedural history, the Court dismissed her petition in a mere two paragraphs, citing Jacobson v. Massachusetts to justify that the state had broad discretion to protect public health.171 In total, the opinion amounted to a total of three paragraphs. As if more deliberation would be a superfluous waste of ink, the sheer brevity of the opinion demonstrates the Court’s dismissive attitude toward the concept of a minor disagreeing with a state-issued vaccine mandate.
Courts do not even allow adults to invoke autonomy interests in refusing vaccination. In Jacobson v. Massachusetts, the Court ruled that a vaccine mandate did not deprive a citizen of liberty guaranteed by the Constitution because of the overwhelming state interest in protecting public health. In both Boone v. Boozman (E.D. Ark. 2002) and Brown v. Stone (Miss. 1979), the courts ruled that school immunization laws did not violate either the parents’ right to free exercise of religion or their right to direct the upbringing of their child.172 The Arkansas court rejected the parents’ religious challenge, saying that “the right to free exercise of religion and parental rights are subordinated to society’s interest in protecting against the spread of disease.”173 Likewise, the Mississippi Supreme Court cited the Supreme Court in Prince v. Massachusetts to support that “the right to practice religion freely does not include the liberty to expose the community or the child to communicable disease or the latter to ill health or death.”174 These cases communicated that there was no space for parents to assert their religious freedom or control their schoolchildren’s vaccination status against the risk of endangering public health.
Without parents asserting their authority over children, courts imagine the state as proxy parents but without social science supporting the need for proxy decision-makers. In Brown v. Stone, the court characterized all students who fall under the immunization requirement as “innocent children, too young to decide for themselves.”175 These “innocent children” included students as old as seventeen, eligible to drive unsupervised, work full-time, and be tried as adults for offenses in certain jurisdictions. The statement also lacked factual backing, as the court provided no decisional research to justify the statement that these students are “too young to decide for themselves.” This reductive and inaccurate use of language contributes to the erasure of mature minors who are capable of making decisions for themselves. Just as the Supreme Court did in Danforth and during the child-saving movement, the overinclusive and disingenuous visualization of an immature, innocent child once again rationalizes the decision.176 This disregard for minors’ autonomy with vaccination appeared to persist until the COVID-19 pandemic when states started introducing bills that would allow mature minors to get vaccinated without permission from their parents.
ii. Ignored Opportunity to Address Minors’ Autonomy & Continued Disregard for Social Science
Booth v. Bowser exemplifies a failed opportunity for the court to address minors' autonomy interests.177 The MCA, which expressly injected the mature minor doctrine into the vaccination conversation, would have permitted mature minors aged eleven and above to receive vaccinations without parental involvement.178 However, despite the law's explicit emphasis on minors' decision-making capacity, the court ultimately granted the parents' injunction and avoided the issue of minors’ autonomy. In an amicus brief submitted by four prominent medical associations, experts provided their opinions and scientific evidence that supported how minors are capable of informed consent and how parental involvement could be inappropriate.179 Along with explaining how the MCA would help control the spread of disease, a dedicated section in the brief elucidated how adolescents may face “physical and emotional abuse” and connects it to laws that have existed around the country for years that allow mature minors to seek medical care without involving their parents.180 It also explained how medical providers can determine the decision-making capacity of minors to consent to vaccination.181 However, when the court analyzed whether a compelling interest exists for the MCA, the court omitted all these considerations in their opinion. Instead, it exclusively discussed the interest of “preventing the spread of communicable disease,” failing to even mention the consequences that mature minors face with parents who oppose vaccination.182 Even when minors’ autonomy was presented explicitly in the law and the amicus brief, the court ignored social science in its analysis.
iii. The Unique Conflict with Autonomy in Vaccine Jurisprudence
The concept of autonomy encounters a significant obstacle in the context of vaccine mandate cases, as the court envisions that autonomy could pose a significant danger to public health. Unlike cases involving abortion and gender-affirming care, the government is expected to have the authority to mandate a procedure when it comes to vaccination. Under the current jurisprudence, the government cannot mandate anyone to get an abortion or receive a sex-change surgery. Up until Dobbs, the government was also, to an extent, constitutionally expected to stay out of people’s choice to receive abortions.183 However, in the vaccination context, there cannot be a comparable negative right because the Supreme Court established in Jacobson v. Massachusetts and numerous subsequent cases that the government has the authority to intervene in individuals’ vaccination decisions to protect the wellbeing of the public.184 The conflict between vaccination mandates and autonomy in the law is fundamentally different from abortion and gender-affirming care medical decisions due to these public health concerns. Considering the relative danger of autonomy in the vaccination context, it might be more reasonable to expect the avoidance of expanding the autonomy of minors. Then, the fact that cases regarding gender-affirming care and abortion—which would not threaten public health like vaccination autonomy would—lack a proper determination of minors’ medical autonomy rights and consideration of decisional capacity research comes to be even more questionable.
VI: Conclusion
The inconsistent use of social science in judicial opinions is evident in cases related to parental notification. In the 1970s, the Court took a small step towards appealing to non-legal evidence by introducing the judicial bypass procedure to ostensibly protect minors' autonomy interests and honor their decision-making maturity. However, the Court disregarded contradicting evidence about the prevalence of mature adolescents and demonstrated a capricious reliance on unsupported assumptions. Even after WWH established a more rigorous evidentiary requirement, the resulting legal decisions were occasionally dissonant with social science, indicating a limited impact of social science on the courts' decisions. Nonetheless, as seen by the implementation of these procedures and requirements, the autonomy interests and decision-making capacity of minors are at the very least recognized in these parental notification cases.
In contrast, cases involving gender-affirming treatment showcase the dismissal of abundant information submitted to the courts on minors' decisional capacity and autonomy interests in favor of discussions about parental rights. The outcomes thus enable parents to deny their mature adolescent children access to treatment. Despite the historical consideration of autonomy interests and decisional maturity research among parental notification cases, social science is ignored in these newer gender-affirming healthcare cases, revealing a discrepancy in how courts use social science depending on the type of healthcare concerned.
Regarding vaccine cases, the courts' anxiety toward public health concerns hinders a consideration of autonomy interests. Even in cases explicitly involving the mature minor doctrine, courts sidestep the issue, revealing their reluctance to grapple with long-standing social science that shows adolescents are mature enough to make their own vaccine decisions.
These recent cases illustrate that despite a substantial body of literature demonstrating adolescents' capacity to make informed medical decisions, courts remain reluctant to reevaluate medical decision-making rights or even allow the research to influence their decisions. This resistance could be particularly pronounced in these three healthcare contexts considering the social, moral, and political implications attached to abortion, transgender rights, and anti-vaccination conversations. Exemplified by the cherry-picking of unreliable data, social science does not determine the case's outcome but is often invoked only to the extent that it aligns with the courts' pre-conceived opinions. The courts’ inconsistent and reluctant reliance on social science suggests a glaring rift between young people’s demonstrated decisional capacity and the constrained rights afforded to them in making crucial medical choices. Significant transformations will need to take place in how we imagine the role of parents, families, and young people in our society before the legal system can envision a more autonomous subject whose place in the law actually reflects their true capacity for agency. A more robust and consistent incorporation of social science in judicial decision-making offers a starting point for such an endeavor.