Parents and Medical Consent: An Analysis of Parental Rights from the Common Law to the Founding

Nathan J. Wertjes*

To begin, this Note will examine the Court’s precedent to illustrate that the Court has long recognized that parental rights are fundamental. Next, this Note will embark upon a general study of the history and tradition of parental rights, beginning in sixteenth-century England and ending shortly after the Founding era. This Note will also examine, in greater detail, the rights of states to ban certain medical treatments, as well as the requirement of parental consent to such treatments. In conclusion, this Note will argue that what this history indicates is that while states have the right to ban certain treatments within their borders, parents ultimately retain the broad authority to proscribe permitted medical treatments for their children. This Note will also illustrate that there is little historical evidence or reasonable rationale for laws forcing parents to submit their children to experimental procedures.

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*J.D. Candidate, Notre Dame Law School, 2026. I am deeply grateful to Professor Nicole Garnett, Colten Stanberry, and my father, Alan J. Wertjes, for their helpful feedback and critiques. Additionally, I appreciate the Notre Dame Law Review, particularly the staff editors, who through their edits and feedback have made this Note far better than it deserves. Finally, I would like to thank my wonderful wife, Gloria, without whom law school would not be worth the trouble.