Minor's Rights Versus Parental Rights: Review of Legal Issues in Adolescent Health Care

Ann Maradiegue, C-FNP, MSN


J Midwifery Womens Health. 2003;48(3) 

In This Article

Privacy and Confidentiality for Minors

Confidentiality is implicit in maintaining a patient's privacy, but confidentiality between provider and client is not an absolute right. Privacy is defined as the ability of the individual to maintain information in a protected way. Confidentiality in health care is the obligation of the health care provider not to disclose information. (English A, Legal Counsel, Center for Adolescent Health Care and the Law, past consultant for MCHB, interview, October 25, 2001.)

All states have statutes regarding public safety and mandatory reporting of communicable diseases to public officials.[14] However, both federal and state laws protect the confidentiality of the people. The Department of Health and Human Services (DHHS) established minimum privacy standards in 1996 through the Health Insurance Portability and Accountability Act (HIPAA).[32] Health care providers, health plans, and health care clearinghouse are all affected by HIPAA. HIPAA is intended to establish security and privacy standards and promote the standardized electronic transmission of administrative and financial health care records that are currently carried out manually on paper. There were two issues that slowed progress in establishing HIPAA regulations. The first issue was the relationship of federal law to state law and the second issue concerned the rules regarding minors' rights and parental access to their medical records.[32,33,34]

Prior to HIPAA, state law controlled the confidentiality of most health information, and protection varied from state to state. Federal regulation under HIPAA supersedes all state laws, unless the state standards are more stringent than federal standards.[32,33,34] The federal regulations require a uniform minimum standard of confidentiality protection, preempting all contrary state laws. In general, HIPAA provides greater confidentiality of health information for all individuals with the exception of minors.[33]

Minors' confidentiality is protected under the Family Educational Rights and Privacy Act (FERPA), first enacted in 1974 and amended in 1994 under the Improving America's School Act (IASA).[35,36] FERPA defines the term "education records" broadly to include all records, documents, files, and other materials such as files, tapes, or a photograph containing information related directly to a student and gives the parents permission to have some control over the disclosure of this information. Under FERPA, when a minor turns 18, the rights are transferred from the parent to the minor.[35] The IASA amendments enhanced the penalty for improperly disclosing information from education records.[36] Interagency disclosure is exempted from these restrictions if it is within the legitimate educational interest of the minor.[33]

Four specified exceptions to FERPA affect access to a minors' records, which include the following: disclosure of law enforcement records; disclosure under directory information (publication of name, address, phone number) after notification of intent; disclosure under health or safety emergency; and disclosure under the juvenile justice system. Schools may disclose information to the above agencies or under specified circumstances without parental consent.[35] HIPPA will protect the confidentiality of health records within the juvenile justice system.[32] More recently, the No Child Left Behind Act of 2002 requires that student lists be given to the military for recruitment purposes.[37] Accordingly, it is apparent that confidentiality of health information is limited for minors. FERPA strictly covers students' school records; these records are not covered under current HIPPA regulations. Personal observations are not covered under FERPA. This means that a teacher can share information with a counselor regarding a student.[35]

Confidentiality for Adolescents Obtaining Contraception

Despite the legal requirements of HIPPA and FERPA, confidentiality for minors seeking contraceptive services has had a separate and convoluted legal course. Since 1942, the Supreme Court has considered the individual rights related to sexual activity and the extent to which the government may interfere with these rights. Over the past two decades, the Court has struggled with the minors' right to privacy against the value of parental guidance with regard to contraception.[12,25]

In 1970, Congress passed Title X of the Public Health Service Act.[38] This law established a program to create a nationwide system of health care clinics that provided family planning services to anyone wanting to receive them. When the Title X program was initiated, services to adolescents were included; however, the growing rate of teen pregnancy alarmed Congress, which then became concerned that teens did not have enough access to services.[38] To ensure adolescents did have sufficient access to services, the language of Title X was expanded. The legislative history of Title X reflects a congressional commitment to two policies regarding contraceptive services for adolescents: 1) encouraging family involvement in a teenager's contraceptive decision and 2) maintaining patient confidentiality regarding personal facts during provision of services.[39] DHHS regulations originally adopted in 1972 pursuant to Title X expressly protect confidentiality. "All information as to personal facts and circumstances obtained by the project staff about individuals receiving services must be held confidential and must not be disclosed without the individual's consent, except as may be necessary to provide services to the patient or as required by law, with appropriate safeguards for confidentiality."[38,39]

In 1978, Congress amended Title X to require recipients of funding to provide treatment to adolescents.[40] Congress rejected all attempts to undermine confidentiality by a vote of 45 to 10 in the Senate, including the care of minors. Congress amended Title X again in 1981, requiring funded recipients to "encourage" minors they were treating to involve their parents in making reproductive health care decisions.[41]

The Reagan administration interpreted the word "encourage" to require Title X recipients to notify parents within 10 working days of prescribing a contraceptive drug or device to a minor.[42] On January 26, 1983 DHHS promulgated regulations mandating parental notification for unemancipated minors seeking contraception from federally funded family-planning clinics, which became known as the "Squeal Rule." There were two exceptions to parental notification: treatment for STDs and when a provider deemed that notification would lead to physical harm of the minor.[42]

Following this action there were several challenges to these parental notification regulations in district courts in Washington, DC, New York, and Tennessee. These cases were heard in the DC courts and the Second Circuit Courts.[43] In the majority of these cases, the judges' opinions denounced the validity of the federal regulations and stated the clinics may not initiate dialogue with the parents over the objection of the minor.

In 1983, the Federal Court case Planned Parenthood v. Matheson found mandated parental notification to be unconstitutional as an infringement of privacy interests, including a minors' constitutionally protected right to decide whether to bear or beget a child by using or not using contraceptives.[44] Because there was no conflict among the circuit courts, the Reagan administration decided not to appeal to the Supreme Court.[41]

Currently, there are no state laws that bar minors' access to confidential contraceptive care, but this continues to be under attack by Congress.[18] In 1999, Representative Ishtook (R-OK) offered an amendment to the Labor Health and Human Services Appropriations Bill. The bill would require recipients of Title X funding to obtain consent from parents prior to prescribing contraception to minors or obtaining written notice 5 working days before prescribing contraceptives.[41] Representative Greenwood (R-PA) offered an alternative to this initiative by proposing a measure to have clinics emphasize abstinence, counsel minors on ways to avoid the pressures of sex, and encourage parental involvement in reproductive decisions.[41]

There are several legal precedents for provision of contraception without parental consent. In Griswold v. Connecticut, a 1965 Connecticut statute making the use of contraceptives a criminal offense was ruled unconstitutional.[45] The Connecticut law applied to both married and unmarried persons. In this case, a member of Planned Parenthood of Connecticut and a physician were arrested and fined for giving married couples advice on contraceptives. Justice Goldberg during this case said, "It is far more shocking to believe the personal liberty guaranteed by the constitution does not include protection against such totalitarian limitation of family size."[45]

Eisenstadt v Baird (1972) is another case example.[46] After delivering a lecture on overpopulation, the appellee handed out articles on contraception and samples of contraceptive foam to a young woman. Massachusetts had a statute making it unlawful for unmarried persons to have access to contraception. The Court ruled that it was unconstitutional to ban contraceptive use and stated that to do so violated the rights of unmarried people under the Equal Protection Clause. Justice Brennan wrote, "If the right to privacy means anything, it is the right of the individual, married or single, to be free from unwarranted government intrusion into matters so fundamentally affecting a person as the decision whether to bear or beget a child."[46]

These cases culminated in 1977 with Carey v Population Services International when the Supreme Court used the Fourteenth Amendment to extend the right of privacy to minors. The Court found minors had a fundamental right to choose "... whether to bear or beget a child." This case held a state law unconstitutional for criminalizing the distribution of nonprescription contraceptives to minors.[47]

Minors now have access to confidential contraceptive services and the earlier cases set legal precedent for Roe v Wade in 1972 and legal abortion services.[48] The Court held a Texas law criminalizing all abortions except those to save the mother's life violated the constitutional right to privacy. Justice Blackmun stated, "The unborn have never been recognized in the law as persons in the whole sense."[48] It has been 30 years since the Supreme Court ruled that the relationship between a woman and her provider was a private matter, not subject to government interference in Roe v Wade. Justice Harry Blackmun declared that the Fourteenth Amendment of the U.S. Constitution extends the right of privacy to women "broad enough to encompass a woman's decision whether or not to terminate her pregnancy."[48] This landmark case, along with previous contraceptive cases, allows adolescents access to appropriate information and crucial contraceptive services including abortion. Table 1 outlines the legal history of the abortion debate.


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