By Victoria Kalumbi
Despite pediatric COVID-19 vaccine availability, many youth remain unvaccinated, and are thus at higher risk of life-altering outcomes as a result of contracting COVID-19.[1]
Some children may be unvaccinated by no choice of their own, but instead because of decisions made by parents, guardians, or state or local government officials.
In this post, I argue that young people should have the opportunity to consent to vaccines. I focus on the specific case of children in foster care and the juvenile justice system, as they are particularly vulnerable amid the ongoing pandemic. However, the legal and political avenues explored in this piece to ensure that young people have a stake in their health and vaccine status are broadly generalizable to all children.
Vulnerability of Children in Foster Care & Juvenile Justice
Youth in the foster care system and those who are justice-involved face additional challenges during the ongoing COVID-19 pandemic. They are at the mercy of authority figures from multiple systems—the judiciary, government officials who oversee their day-to-day health, safety, and wellbeing, parents or legal guardians who may retain control over their bodily autonomy and decision making, and service providers who have access into the story of their lives.
Additionally, most of these youth are from historically underrepresented and underserved backgrounds, face poorer outcomes relative to their non-system involved peers, and enter these respective systems with greater needs.
The child welfare and juvenile justice systems are both plagued by systemic and structural racism. It has been extensively documented that Black and Native American children are disproportionately overrepresented in the child welfare system.[2] And, while youth of color are only 38% of the population, they account for almost 70% of juveniles in secure confinement.[3] Black youth are treated more harshly at every stage of the juvenile justice system; while accounting for only 16% of the youth population, Black youth “represent 28% of juvenile arrests, 37% of detained youth, and 58% of youth admitted to state adult prison.”[4]
Children in the foster care system have high rates of health problems, including acute and chronic physical, mental, and developmental conditions in comparison to children not in foster care.[5] Research on youth in the juvenile justice system indicates that at least two-thirds of incarcerated youth have physical health care needs, including dental, vision, or hearing; another study indicated that at least 46% of incarcerated youth had at least one diagnosable medical condition requiring medical attention, with respiratory and sexually transmitted infections being the most common.[6]
Given these vulnerabilities, vaccinating children in foster care and the juvenile justice system should be a priority. Allowing children to consent to vaccinations may facilitate this end.
Can Young People Consent to the Vaccine?
Generally, children who have not reached the age of majority typically do not have the right to consent to their own medical care,[7] although this varies across states. Specific to the COVID-19 vaccine, children under age 18 in most jurisdictions will require parental consent.[8]
While the Supreme Court has noted that “[c]onstitutional rights do not mature and come into being magically only when one attains the state-defined age of majority; [m]inors as well as adults are protected by the Constitution and possess constitutional rights,”[9] in practice, the protections afforded by the Constitution are much more limited as a matter of principle and case law.
Parental rights as they pertain to children and families are vast. Parental rights extend to the right to have children,[10] the right to “direct the upbringing and education” of their children,[11] and a right to family integrity.[12] In comparison, children in the United States are left with few rights: constitutional jurisprudence has denied children an affirmative constitutional right to an education[13] and health care.[14]
Where Can Children Find the Right to Consent?
The right to the COVID-19 vaccine stems from the harms that youth stand to face if they cannot access the COVID-19 vaccine due to parental refusal. Specifically, youth and their advocates should consider incorporating arguments relating to education and normalcy.
With respect to education, youth in states with a fundamental right to education have the strongest basis in which to tie their right to vaccine; making vaccination a requirement for accessing education would ensure that youth can get vaccinated. However, while young people in the foster care in most states can rely on state constitutional right to education to bolster their right to the COVID-19 vaccine,[15] youth in the juvenile justice system in certain states have less accessibility to a right to education. For example, the Wyoming Supreme Court held that youth within the justice system forfeit their right to education.[16] Accordingly, tying the right to be vaccinated to the right to education will not capture the needs or interests of all young people.
For young people in the foster care system, the idea of “normalcy” may strengthen their need to be vaccinated. “Normalcy” includes the participation in activities such as visiting the homes of friends, attending school trips, having a part-time job, volunteering, participating in school clubs and teams, dating, going to the prom, attending faith-based activities, and learning to drive.[17] The purpose of normalcy is to provide opportunities for youth to become responsible and independent, and “normal” activities are linked to improved educational outcomes, relationships, mentorship, and are considered to be the “hallmark of childhood and adolescence.”[18] Children and their advocates can emphasize the importance of the vaccine to maintaining relationships, building new relationships, staying involved the community, and living as close to a “normal” life as possible.
Do Children Have the Right to Refuse?
Vaccine refusal case law has focused on the religious beliefs of the parents,[19] but the Supreme Court has explicitly noted that children have the right to exercise their religion.[20] The scope of this right for young people has yet to be defined by the Supreme Court,[21] but is “not accorded the same scope as an adult’s right to free exercise,” limited by the state’s interest in health the parent’s rights to control the upbringing of their child.[22] Accordingly, children arguing that a COVID-19 vaccine mandate violates their religious beliefs will have the fewest constitutional conflicts if both the child and biological parent are in agreement.[23] Challenges may also arise if a child’s religious beliefs differ from those of their foster parents, which can disrupt placements, or severely reduce the number of available placements for a child.[24]
Conclusion
For novel vaccines where there is medical consensus that the vaccine would permit the youth to protect their health and allow them to access the full confines of their living situation, and, if pertinent, their community, there should be a strong presumption in favor of the child’s right to consent to the immunization, regardless of their parent or legal guardian’s perspective. Youth who do not wish to consent should be entitled to state the basis of their objection and have that refusal be addressed and rebutted with countervailing data that is particular to their level of risk and exposure. Such a framework ensures that the child’s bodily autonomy and beliefs are respected. If one of the goals of the foster care and juvenile justice system is to prepare youth to live independently, make informed decisions, and navigate the world, then the interests of society are best served by involving and praising the voices of youth in these decisions.
Victoria Kalumbi received her JD from Harvard Law School in 2022.
A full form of this Article is forthcoming in the Minnesota Journal of Law & Inequality Vol. 41.
[1] E.g., Anna Edney, Kids’ Covid Hospitalizations Hit Record in U.S. Omicron Surge, Bloomberg (Dec. 31, 2021), https://www.bloomberg.com/news/articles/2021-12-31/kids-covid-hospitalizations-reach-record-level-in-omicron-surge (describing a record number of pediatric COVID-19 hospitalizations due to the omicron variant).
[2] E.g., Racial Disproportionality and Disparity in Child Welfare, Dep’t Health & Hum. Serv., Admin. Child. & Fams., Childs. Bureau 1, 2 (2014); Robert B. Hill, An Analysis of Racial/Ethnic Disproportionality and Disparity at the National, State, and County Levels, Casey-CSSP Alliance for Racial Equity in Child Welfare 1, 1 (2007), https://www.aecf.org/m/resourceimg/aecf-AnalysisofRacialEthnicDisproportionality-2007.pdf.
[3] Bell, supra note 99 at 26.
[4] Id. at 27.
[5] Stephanie Anne Deutsch & Kristine Fortin, Physical Health Problems and Barriers to Optimal Health Care Among Children in Foster Care, 45 Current Problems in Pediatric and Adolescent Health Care 286, 286 (2015); Council on Foster Care et al., Health Care Issues for Children and Adolescents in Foster Care and Kinship Care, 136 Pediatrics e1131, e1132 (2015).
[6] Id. at 101.
[7] E.g., Fanaroff, Consent by Proxy for Nonurgent Medical Care, 139 Pediatrics e1, e2 (2017); see also Minors’ Consent Laws | Law | Policy and Law | HIV/AIDS | CDC, https://www.cdc.gov/hiv/policies/law/states/minors.html (last visited Jan 16, 2021) (indicating that 46 states have an age of majority of 18; only Alabama, Mississippi, Nebraska, and Pennsylvania have a higher age of majority).
[8] Young people under age 18 in California detention centers need parental consent to receive the vaccine. Jeremey Loudenback, California Juvenile Facilities See Continuing Covid Rise, LA Progressive Newsletter (Jan. 24, 2021), https://www.laprogressive.com/juvenile-facilities-2/. Youth in foster care and juvenile detention cents in New York will need “written, informed parental consent” to receive the vaccine, unless they are pregnant, parenting, or are freed for adoption. Eileen Grench, New York’s Homeless, Foster, and Jailed Teens Now Eligible for COVID Vaccine, Chalkbeat New York (Feb. 24, 2021), https://ny.chalkbeat.org/2021/2/24/22299531/ny-homeless-foster-jailed-teens-covid-vaccine.
[9] Planned Parenthood v. Danforth, 428 U.S. 52, 74 (1976).
[10] Skinner v. Oklahoma, 316 U.S. 535, 541 (1942).
[11] Pierce v. Soc’y of Sisters, 268 U.S. 510, 534 (1925); Meyer v. Nebraska, 262 U.S. 390, 400 (1923).
[12] E.g., Romero v. Brown, 937 F.3d 514, 519–20 (5th Cir. 2019); Duchesne v. Sugarman, 566 F.2d 817, 825 (2d Cir. 1977).
[13] San Antonio Indep. Sch. Dist. v. Rodriguez, 411 U.S. 1, 35 (1973).
[14] Erin C. Fuse Brown, Developing a Durable Right to Health Care, 14 Minn. J. L. Sci. & Tech. 439, 448 (2013).
[15] Emily Parker, Constitutional Obligations for Public Education, Educ. Comm’n of the States (March 2016), https://www.ecs.org/wp-content/uploads/2016-Constitutional-obligations-for-public-education-1.pdf (50 state survey on state constitutional rights to education). However, because Washington, D.C., is not a state, there is no foundation for public education. Id. at 2.
[16] Id. at 795–96 (citing In re RM, 102 P.3d 868, 874 (Wyo. 2004) (“[T] the fundamental right to an opportunity for an education does not guarantee that a student cannot temporarily forfeit educational services through his own conduct . . . The actual receipt of educational services is accordingly contingent upon appropriate conduct in conformity with state law and school rules.”).
[17] Paul Jacobson, Promoting “Normalcy” for Foster Children: The Preventing Sex Trafficking and Strengthening Families Act, 81 Mo. L. Rev. 251, 254 (2016).
[18] Id. at 255.
[19] Kimberlee Wood Colby, When the Family Does Not Pray Together: Religious Rights Within the Family, 5 Harv. J. L. Pub. Pol’y 37, 53 (1982).
[20] Prince v. Massachusetts, 321 U.S. 158, 165 (1944) (“The rights of children to exercise their religion, and of parents to give them religious training and to encourage them in the practice of religious belief, as against preponderant sentiment and assertion of state power voicing it, have had recognition here, most recently in West Virginia State Board of Education v. Barnette, 319 U.S. 624, 63 S.Ct. 1178.”); Kelsi Brown Corkan, Free Exercise in Foster Care: Defining the Scope of Religious Rights for Foster Care Children and Their Families, 72 U. Chi. L. Rev. 325, 338 (2005).
[21] Colby, supra note 206, at 55.
[22] Id. at 83.
[23] However, the preference of foster care children has been taken into account when analyzing if a parent’s free exercise rights were violated. Corkan, supra note 203, at 339–40 (citing child welfare cases in which the courts weighed the child’s stated preferences in religious practices).
[24] See id. at 327–30.
