Previously, the Secular AZ blog has featured articles about minors’ rights in school and their right to access information. Adolescents also have unique concerns regarding their right to privacy in healthcare settings. The COVID-19 pandemic, culture wars around vaccines, and recent changes in abortion law have made confidentiality and consent issues particularly critical. The international human rights community recognizes confidentiality in health matters as a component of a youth’s fundamental right to privacy.
Healthcare confidentiality is the “privileged and private nature of information provided during the health care transaction.” It is important for minors to be able to access confidential care for a variety of reasons, not all related to reproductive or sexual health. Minors who abuse drugs or alcohol or suffer from emotional of psychological problems may avoid seeking care if their parents must be involved.
Consent laws: a complex landscape
Although laws vary by state, all minors have a right to some confidential health care. All states and Washington, D.C. allow minors to consent to sexually transmitted infection and treatment without parental permission. Other states have consent laws that include substance misuse treatment, pregnancy, prevention and care, and sometimes abortion services, mental health care, and emergency care.
The expansion of minors’ authority over health care decisions was partly prompted by United States Supreme Court rulings extending the constitutional right to privacy to a minor’s decision to obtain contraceptives or to terminate an unwanted pregnancy. In Carey v. Population Services International, the Court held that a state cannot constitutionally place any restrictions on the advertisement, sale, and distribution of contraceptives to individuals of any age. Of course, any right minors had to terminate unwanted pregnancy was gutted when the Supreme Court overturned the right to abortion in Dobbs v. Jackson Women’s Health Organization.
At the federal level, the programs supported by the Title X family planning program provided contraceptive services and healthcare to minors on a confidential basis, although they encourage minors to involve their parents in their decision to seek services. Conservatives in Congress have repeatedly attempted to pass legislation requiring that a parent be notified before a minor receives these services in a Title X clinic, but these attempts have not succeeded.
Medical privacy rights
With the exception of abortion, lawmakers have generally resisted attempts to impose a parental consent or notification requirement on minors’ access to reproductive health care and other sensitive services. However, the parental rights movement has been fighting to legislate parental control over minors’ reproductive health care decisions, especially since so many states have been changing their abortion laws in the wake of Dobbs.
Under the Health Insurance Portability and Accountability Act (HIPAA), minors under 18 generally cannot legally exercise their rights to privacy in their healthcare disclosures. Instead, HIPAA considers the minor’s parents or guardian to be their “personal representative” who exercises the minor’s HIPAA rights on their behalf. This gives parents access to their children’s medical information for the most part, with three exceptions: 1) when a minor obtains care at the direction of a court; 2) when a parent agrees that the clinician and minor may have a confidential relationship; 3) and when a minor has consented for the care and the consent of the parent is not required by state or other applicable law.
State laws on consent and privacy for adolescents vary all over the place, and studies have found that many do not reflect pediatric professional standards of care. According to one study, state law variations make it nearly impossible to provide the privacy protection that is supported by medical societies, including the American Academy of Pediatrics, to support adolescent autonomy.
Consent for vaccines, tests, and treatment
Consent laws have been particularly important in recent years as people have clashed over the COVID-19 vaccine. Only eighteen states allow adolescents to consent for immunizations, meaning that all other states require parents to approve the vaccine. So if a teenager wants the COVID-19 vaccine but their parent opposed it, only some states would allow the teenager to get vaccinated anyway.
In Arizona, minors can only consent for general medical care if they are emancipated, married, or homeless. They cannot consent for immunizations unless there is a court order. They also cannot consent for HIV testing and treatment. However, minors 12 years old and older can consent for sexual assault evaluations, STI testing and treatment, contraceptive care, and substance abuse treatment.
The laws related to abortion vary by state as well, with laws affecting minors differently even where abortion is legal. Some states require minors to get permission from a parent or older family member. Others don’t require permission, but inform the parents about the minor’s abortion. And others do not require either. Arizona requires that a parent provide permission, but a judge can excuse this requirement. Neighboring New Mexico and California do not require any parental involvement.
Teenagers may still rely on their parents for a lot of things, but they are also making decisions related to their healthcare that can affect the rest of their lives. It is important for them to feel safe going to their doctor without worrying about getting in trouble with their parents. Arizona in particular can do better by reconsidering consent and confidentiality laws to give minors more autonomy in this critical area.
Adriana Clark is a recent ASU graduate and legal fellow for Secular AZ.