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* by 209 209 Elias Feldman ...... 213 213 ...... and police powers. But many states also allow parents to opt for non- for opt to parents allow also states many But powers. police and A. Rights Parental J.D., Columbia Law School, 2020; B.A. in Philosophy-Neuroscience-Psychology, Fourteenth Amendment versus the state’s interest vaccinated be to right child’s a why explains then Article The diseases. harmful Feinberg’s under future” open an to “right child’s a of extension an as exist may theory. The Article next addresses potential legal and ethical objections to its unavailing. is each how explains and thesis emergence of a national vaccine hesitancy crisis. By permitting parents not to children’s violate exemptions these grant that states do children, their vaccinate rights? This Article posits that children may indeed have a right to be cinated vac- and thus protected against contracting a disease for which there is a vaccine. proven scientifically This Article examines this question through the lens of Joel theory Feinberg’s of the child’s provid- “right by to an scholarship open child-rights future.” This contemporary theoretical framework other distin- from Article this guishes States commonly require the vaccination of children through their their through children of vaccination the require commonly States triae medical exemptions from these vaccination requirements, contributing to the to choose from among a reasonable range of life plans. plans. life of range reasonable a among from choose to child’s a to related rights legal conflicting the examining by begins Article This right to be vaccinated—the parents’ right to raise their children under the ing a cohesive liberal approach to discourse surrounding vaccine exemptions. jurispru- constitutional reconciles Article this theory, Feinberg’s from Building adults of future rights the and rights, of individual conceptions liberal dence, * M K VACCINATION AND THE CHILD’S RIGHT TO AN OPEN FUTURE FUTURE OPEN TO AN RIGHT CHILD’S THE AND VACCINATION II. II. 213 ...... Crisis Hesitancy Vaccination and the Rights, Vaccination, Parental I. I. 210 ...... Introduction Washington Washington University in St. Louis, 2017. I would introducing like me to child to rights law thank and advising Professor me throughout Noam the editorial Peleg process, Professor for Christopher Heath Wellman for verifying my discussion of rights, and Feinberg’s the liberalstaff of theory the Lewis of & child Clark Law Review for publication. diligently preparing this Article for

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CADEMIES A ONN L ’ REVENTION OF AT P (Jan. (Jan. 29, 2020), , 52C , , N , at 303. Hepatitis B B Hepatitis 303. at at 159. 159. at Id. ) estimates that 95% of Id. substantial, vaccines’ risks vaccines’ substantial, REVENTION ...... 218 218 ...... haemophilus haemophilus influenzae P

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RG —provide almost complete protection against against protection complete almost —provide supra supra & O ISEASE ISEASE D I. INTRODUCTION I. INTRODUCTION 218 (Jennifer Hamborsky et al. eds., 13th ed. 2015) ed. 13th eds., al. et Hamborsky (Jennifer 218 EALTH ONTROL FOR FOR H . C ., https://sites.nationalacademies.org/BasedOnScience/vaccines-are- , however, mean mean however, , TRS ...... 248 248 ...... 245 245 ...... 243 243 ...... ISEASES ED ORLD D ISEASE ISEASE , C M

D , W & Thanks to their effectiveness, vaccines save an estimated two to three three to two estimated an save vaccines effectiveness, their to Thanks FOR FOR . TRS REVENTABLE C -P C. C. 3 Objection B. 2 Objection A. Objection1 B. B. Crisis Hesitancy Vaccine the and Vaccination See Immunization The The Advisory Committee on Immunization Practices (“ACIP”) currently recommends Lois A. Weithorn & Dorit Rubinstein Reiss, NGINEERING There is global expert consensus that vaccines are both safe and effective. and safe both are vaccines that consensus expert global is There E 3 4 2 1

. ACCINE CI V. V. 249 ...... Conclusion are low, and that the benefits far outweigh the risks.”); the outweigh far benefits the that and low, are vaccine is 95% effective in children but is slightlyless effective in adults. III. III. 223 ...... Future Open an to Right Child’s The IV. 240 ...... to Vaccination Right A Child’s vaccines most commonly given to children—vaccines for measles, mumps and ru- B and hepatitis polio, (MMR), bella people who received three doses of inactivated polio vaccine are immune. news-room/facts-in-pictures/detail/immunization. million lives every year worldwide, and an additional 1.5 million deaths could be avoided with more complete vaccine coverage. 771, 771, 780 (2020) (“Indeed, there is a global expert consensus that effective. This vaccines is, are of both course, a safe generalization: nothing and is 100% safe or 100% effective (and does It 100%). no is ‘consensus’ to vaccination (also known as “vaccine hesitancy”) has grown increasingly common common increasingly grown has hesitancy”) “vaccine as known (also vaccination to to threatens that crisis health public a causing years, recent in world the throughout States States generally require some subset of those vaccines recommended by ACIP as part vaccination mandates. & Weithorn Reiss, of their V S https://www.cdc.gov/vaccines/schedules/downloads/child/0-18yrs-child-combined-schedule.pdf. these diseases. these 210 210 REVIEW LAW CLARK & LEWIS 25.1 [Vol. LCB_25_1_Art_5_Feldman (Do Not Delete) 3/3/2021 8:26 PM indicate that more than 99% of persons who receive two doses of measles vaccine (with the first dose administered no earlier than the immunity.”). The first Centers for Disease Control birthday) and Pr develop serologic evidence of measles ConfidentialChildhoodAccessto Vaccines:Consent Ageof LowerProposal the to A that children under two receive vaccinationshepatitis A, for hepatitis diphtheria, B, influenza, measles, rotavirus, mumps, pertussis, rubella, pneumococcal disease, and polio, Immunization varicella Schedule (chicken pox). safe/index.htm safe/index.htm (last visited Feb 23, 2021) (concluding that vaccines “have many health benefits and few side effects”). 43059-lcb_25-1 Sheet No. 113 Side B 03/17/2021 10:17:28 B 03/17/2021 113 Side Sheet No. 43059-lcb_25-1 43059-lcb_25-1 Sheet No. 114 Side A 03/17/2021 10:17:28 . EV R

L.

, Feinberg fa- , 74 N.C. it recognizes no no recognizes it The problem is so While the law may recognize the cent years have been tied to personal- Given the importance of vaccines and police powers, states are not obli- not are states powers, police and ‘They’re ‘They’re Chipping Away.’ Inside the Grassroots Although part of the whooping cough spread is Id. 595, (2014). 605–06 Y ’

, , TIME (June 13, 2019, 6:18 AM), https://time. right that states violate by providing parents with with parents providing by violate states that right The The Child’s Right to an Open Future OL Id. parens patriae Compensating the Victims of Failure to Vaccinate: What Are the P

Jeffrey Kluger, Kluger, Jeffrey . some See UB P

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The The Children We Abandon: Religious Exemptions to Child Welfare and J.L. notes 78–79. This Articledoes not propose that children have a right to vaccination ORNELL ORNELL

Dorit Rubinstein Reiss, Reiss, Rubinstein Dorit , 23 C , 23 Id. See infra See James G. Dwyer, For example, measles had been declared eliminated in the U.S. in 2000, but the U.S. is American American law approaches vaccination by weighing parental rights to control This is not an entirely novel question. James Dwyer, for example, has argued 6 7 8 9 5 M K attributable to mutated bacterium, other outbreaks in re vaccination. from exemptions belief compulsory compulsory immunization”). right of children not to be negligently infected by other children, affirmative right to immunization that imposes upon the state or parent an an obliga- or the parent upon state imposes that to immunization right affirmative tion to ensure children are vaccinated. As a result, children whose parents receive unvaccinated remain mandates vaccination to exemptions philosophical or religious that diseases communicable contracting of risk heightened substantially a suffer and can result in death or permanent disability. This Article departs from this notion and asks: do children have Options? now in danger of losing its elimination status as an outbreak of measles led to over 1,000 cases in the first five months of 2019. com/5606250/measles-cases-rise-fighting-vaccines/. Mumps is also resurging with cases over in 1,000 2019, as is whooping cough. 1321, 1385–86 (1996) (arguing that religious exemptions “explicitly deny a particular subgroup subgroup a deny particular “explicitly exemptions religious that (arguing (1996) 1385–86 1321, of children—those whose parents have a particular set of religious beliefs—the benefit of to the health of young children in particular, the vaccine crisis hesitancy primarily children. of wellbeing and the health threatens the upbringing of children against the potential impact the exercise of these rights child- compel may states Although themselves. children of interests the on have will hood vaccination under their

2021] 2021] undo much of the progress vaccination has enabled over time. FUTURE OPEN AN & VACCINATION 211 LCB_25_1_Art_5_Feldman (Do Not Delete) 3/3/2021 8:27 PM non-medical exemptions to vaccination mandates? mandates? vaccination to exemptions non-medical Education Laws as Denials of Equal Protection to Children of Religious Objectors Effort to Fight Mandatory Vaccines serious that in 2019, the World Health Organization labeled vaccine hesitancy as health. global to threats leading year’s the of one under under any existing law, but proposes instead that a possible right of that kind may be a logical extension of the child’s “right to an open future,” as conceived by the philosopher Joel Feinberg. In ents who do not wish to vaccinate their children. their vaccinate to wish not do who ents gated gated to mandate vaccination, and many provide non-medical exemptions to par- tion Clause. tion that religious exemptions may violate the Fourteenth Equal Amendment’s Protec- C Y 43059-lcb_25-1 Sheet No. 114 Side A 03/17/2021 10:17:28 A 03/17/2021 114 Side Sheet No. 43059-lcb_25-1 43059-lcb_25-1 Sheet No. 114 Side B 03/17/2021 10:17:28

, . M K Q. EV C Y R

and and OCIAL Parents L. S

344, 346 346 344, U.

. . 89, 105–06 AP (1998)). AMBRIDGE TS male circum- cochlear im- cochlear R

. NBOUND , 26 C 26 , IGHTS IGHTS U

RINCIPLES FOR R , 12 C HILD P S cystic fibrosis, cystic ’ C

83, 87–89 (1997). J. L ’ andBeyond THICAL , 112 AJIL NT HILDREN E C digital media, digital

in . Yoder , , 10 I URIMETRICS Since Feinberg first proposed this this proposed first Feinberg Since female circumcision, , 38 J , 38 313, 314–16 (2017); Toby Schonfeld, Toby (2017); 314–16 313, CHOOLS V at 1, 1–3 (2018). at

S cloning, Digital Media, the Right to an Open Future, and ildren, a fundamental constitutional liberty 463, 464–67 (2013). (2013). 464–67 463, THICS E 280, 281–84 (2011). (2011). 281–84 280, . 226,226 (2017). Nicotine Conjugate Vaccine: Is There a Right to a Smoking THICS ELIGIOUS ELIGIOUS E

EV Nov. 2018, Nov. .

ChildrenUnder theKnife: Current Interests, Future Interests or R , R .,

THICS ED E

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EALTHCARE WYER ED Beyond Beyond an Open Future: Cognitive Enhancement and the Welfare of H

D Parental Procreative Obligation and the Categorisation of Disease: The

cosmetic “eye-shaping” procedures, “eye-shaping” cosmetic SYCHOL M 344, 345 (2004). . 1247, 1265–68 (2011). .1265–68 (2011). 1247, The Child’s Right to an Open Future: Is the Principle Applicable to Non- to Applicable Principle the Is Future: Open an to Right Child’s The

39 J. 39

P Eyes Wide Open: Surgery to Westernize the Eyes of an Asian Child Q. , G. HearingCochlearDeaf:the Implants, DeafCommunity,the and Bioethical EV Germline Germline Engineering and Human Rights What’s Wrong with Cloning? with Wrong What’s The Child’s Right to an Open Future: Open an to RightChild’s The R The The Child’s Right to an Open Future

AMBRIDGE This Article follows this line of scholarship and argues that a a that argues and scholarship of line this follows Article This Jan.–Feb. 2009, at 15, 17. 17. 15, at 2009, Jan.–Feb.

411, (2003). 412–16 THICS , 37 J. , 37 L. The The Child’s Right to a Godly Future ., E

AMES AMES . EP U. , 2 C , 2

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RONTIERS THICS . AMBRIDGE E AL M

, F TR Jade Michelle Ferguson, Ferguson, Michelle Jade A. Hasman & Søren Holm, Holm, Søren & A. Hasman Monika Sziron & Elisabeth Hildt, Hildt, Elisabeth & Sziron Monika C nicotine use, nicotine medical operations generally, operations medical , 26 C 26 , Alicia Ouellette, Ouellette, Alicia See Alicia Ouellette, Gabriel T. Bosslet, Rex Ahdar, R. Alta Charo, Davis, S. Dena RobertJ.L. Darby, See Davis, S. Dena See Joel Joel Feinberg, , 45 V , 45 97, 100–02 ed., Howie 1983). (John , 30 J. , 30 Because immature children lack many legal rights and exist under the control 17 18 19 20 21 11 12 13 14 15 16 10 ASTINGS EALTHCARE OLICY cision, (2018); Jenny I. Krutzinna, Children “right to an open future,” the right has been cited as a basis for potential derivative the right future,” “right as a an to derivative open hascited for been basis potential engineering, genetic of contexts the inrights Analysis Case of Cystic Fibrosis Parental Interests? plants, H 93, 94, 98–101 (1997). P 212 212 of have a that present those right au- to the preservation children mously proposed protect- adulthood, in maturity attaining upon receive will they that rights tonomy ing them against having important life choices determined by others before they have the ability to make them for themselves. REVIEW LAW CLARK & LEWIS 25.1 [Vol. LCB_25_1_Art_5_Feldman (Do Not Delete) 3/3/2021 8:26 PM least a right not to be exempted from receiving vaccinations on account of objections. their philosophical or religious parents’ of their parents, the constitutional rights of children have been examined only in the context of parental rights. In Part II.A, this Article surveys the devel- historical of opment the parental right to raise ch must rights Parental Clause. Process Due Amendment’s Fourteenth the by protected even “godliness.” child’s right may an future at to or entail open a to vaccinated, right ofbe children (2002) (reviewing J (2002) (reviewing Children0–5 Future? H of Unhappy Poets: Fiduciary Responsibility and Genetic Enhancements Circumcision? Therapeutic 43059-lcb_25-1 Sheet No. 114 Side B 03/17/2021 10:17:28 B 03/17/2021 114 Side Sheet No. 43059-lcb_25-1 43059-lcb_25-1 Sheet No. 115 Side A 03/17/2021 10:17:28 , that a pa- parens parens patriae them to a significantly heightened heightened significantly a to them interpret interpret this right as requiring that ’s ’s preferences. Although each objection liberal; and (3) that it is reasonable to assume chil- to is reasonable (3) that it and liberal; Althoughparental rights jurisprudencehas left the HESITANCY CRISIS CRISIS HESITANCY bstantial bstantial to override any parental objections grounded in of a rights violation; (2) that overriding parental preferences undermines undermines preferences parental that overriding (2) violation; a of rights Wisconsin v. Yoder, Wisconsin 233–34 205, 406 U.S.(1972). risk As this Article will detail in Part III, the right to an open future can be con- Working from this interpretation, this Article concludes in Part IV that the American American constitutional law’s treatment of children’s rights is often criticized 22 II. PARENTAL RIGHTS, VACCINATION, AND THE VACCINATION VACCINATION THE AND VACCINATION, RIGHTS, PARENTAL II. M K rental decision may “jeopardize the health or safety of the child, or have a potential potential a or have child, the of or safety health the “jeopardize may rental decision burdens.” social significant for risk risk of This will death Article or andanticipate disability. then permanent respond to three possible objections: (1) that the right to an open future does not entail a one expose only that dangers include to meant not is it because vaccination to right to the il is itself that in a way pluralism dren would follow even the preferences idiosyncratic of their parents if parents in- fluence the development of their children raises valid concerns, none ultimately succeed in defeating the claim that children exists currently than vaccines to access their of protection greater to right some have the- liberal a similar through at least (or future open an to right through Feinberg’s ory). strued with varying degrees of strength, but Joseph Millum’s “moderate interpreta- “moderate Millum’s of but strength, Joseph degrees varying with strued tion” is the most sensible of reading the right because it is most consistent with its liberal pursuit underpinnings. in Thus, from this choose Article will to plans life potential of range reasonable a have adults future good. the of own conceptions of their vaccina- with non-interference of right a least at require may future open an to right right affirmative an even perhaps, and, exemptions non-medical precludes that tion because future open an to right child’s the from follow rights Such immunization. to of how the failure to children vaccinate exposes relative strength or weakness of this standard generally unclear, one context where its is weakness As clear is this vaccination. in explains Article childhood Part II.B, the law recognizes the state’s interest in protecting children from communicable diseases as sufficiently su children any Although have interest. to no liberty legal entitlement im- affirmative munization, such protection may be necessary if children have a right to an open rights. autonomy future their in interest present a them gives that future

2021] 2021] give way to state regulation when the state determines, as FUTURE OPEN AN & VACCINATION 213 LCB_25_1_Art_5_Feldman (Do Not Delete) 3/3/2021 8:27 PM A. Parental Rights Rights A.Parental rights the than rather children their control to of parents rights on the focus its for C Y 43059-lcb_25-1 Sheet No. 115 Side A 03/17/2021 10:17:28 A 03/17/2021 115 Side Sheet No. 43059-lcb_25-1 43059-lcb_25-1 Sheet No. 115 Side B 03/17/2021 10:17:28

: M K C Y IGHT S Lochner L.J. 1448,

. 955, 964– 955, . LAIN P EV ALE R state’s role as as role state’s 70–71 (2008);

L.

. ATE Until 1937, the the 1937, Until T , 127 Y UL IDDEN IDDEN IN H

, , 67 T 67 , IONEL IONEL That period an- also That period saw L OODHOUSE W right interacts with the with interacts right RANKLIN RANKLIN TO F 313, (1998). 313–15 EN EN The New Law of the Child B ENNETT ENNETT B OVERTY P ARBARA distinct groups of right-holders: children, parents, parents, children, right-holders: of groups distinct note 23, at 1458–59. note 23, at 1458. In the late nineteenth century, attitudes toward chil- B IGHTS IGHTS FROM From From Property to Personhood: A Child-Centered Perspective on R three S IGHTING IGHTING supra supra supra ’ But, given this orientation, understanding the rights of of rights the understanding orientation, this given But, F ConstitutionalFamilyJustPrivacyand the see see also ON ON J.

. This cultural shift broughtabout a wave oflabor, education, and HILDREN EO C . Until relatively recently, in both the United States and elsewhere, elsewhere, and States United the both in recently, relatively Until at 1456. 1456. at . This Part briefly surveys of the evolution historical this right, which at 1457–58; 1457–58; at , 5 G 5 , Id. id. at 1459.at Anne C. Dailey, at 1459. 1459. at the state began to a play greater role in of welfare the supervising children See Rosenbury, & Dailey Id. See Rosenbury, & Dailey Id. Slaughter-House Cases, 83 U.S. (16 Wall.) 36, 105 (1873) (Field, J., dissenting). In the Anne Anne C. Dailey & A. Laura Rosenbury, question foundational “the on resting as law child describe similarly Rosenbury and Dailey RAGEDY OF American American law generally involves a relationship based in rights and obligations This This cultural shift was soon by followed a legal shift: the dawn of the T 25 26 27 28 29 30 31 23 24 parens patriae parens HE is helpful to understanding the legal treatment of childhood vaccination. vaccination. childhood of treatment legal the understanding to helpful is child States, United the in But state. sovereign a and person right-holding a between law involves not two but 1470–72 (2018). 1470–72 (2018). era and the emergence of substantive due process. At the turn of the century, the Supreme Court began interpreting the Fourteenth Amendment to give “practical the of gift the are which rights rights, inalienable of 1776 of declaration the to effect Creator, which the law does not confer, but only recognizes.” Yet, “[s]omewhat paradoxically, law prior to the late nineteenth century viewed chil- viewed century nineteenth late the to prior law paradoxically, “[s]omewhat Yet, dren as autonomous beings, still under the control of their parents but not signifi- adults.” from different cantly children children under American law requires understanding the parental right to control this how and children one’s of the upbringing parens patriae and the state.

T Barbara Bennett Woodhouse, Parents’ Rights dren different began beings dependent “innocent, to as instead but shift. property-like, and autonomous The law no longer and care.” protection from of adults and need in special viewed children as simultaneously 214 214 of children themselves. REVIEW LAW CLARK & LEWIS 25.1 [Vol. LCB_25_1_Art_5_Feldman (Do Not Delete) 3/3/2021 8:26 PM property-like ownership their over ownership children that was virtually without constraint. property-like this was not the case. Children had no rights in the common law, and fathers had a a had fathers and law, common the in rights no had Children case. the not was this criminal justice reforms that reflected children’s changed cultural status. cultural changed children’s reflected that reforms justice criminal 72 (1993). as as of of who has authority over children’s themselves.” lives—parents, the state, or (less frequently) children other paradoxical development: as the family became an increasingly private sphere sphere private an increasingly became family the as development: paradoxical other of life, 43059-lcb_25-1 Sheet No. 115 Side B 03/17/2021 10:17:28 B 03/17/2021 115 Side Sheet No. 43059-lcb_25-1 43059-lcb_25-1 Sheet No. 116 Side A 03/17/2021 10:17:28

] Lochner Meyer MERICA MERICA IN era); Laura A

: Slaughter-House , the Supremethe , Although the the Although , in which the Lochner ISCONTENT D S , in which the Supreme Court ’

’s fundamental right to contract, contract, to right fundamental ’s Meyer v. Nebraska tion to his businesstion to his is part of the liberty uisiana law granting a monopoly on the EMOCRACY L.J. 2165, 2169–70 the2165,(1999) (discussing L.J. Pierce v. Society of Sisters of Society v. Pierce D

, Lochner ALE In -era fundamental -era right fundamental to contract that the .” Lochner Lochner v. New York ANDEL S , 108 Y 108 , Institutional Gardening: The Supreme Court in Economic Economic in Court Supreme The Gardening: Institutional

. 685, 695–98 (2017) (discussing the (discussing (2017) 695–98 685, . J. EV Lochner R As Anne Dailey explains, “[a]lthough the [ the “[a]lthough explains, Dailey Anne As

as parents as L. 40 (1996). ICHAEL ICHAEL LARK C

to strike down a statute requiring parents to send their chil- their send to parents requiring statute a down strike to & note 31, at 42. HILOSOPHY note 28, at971–72. note 28, at971. , Supreme the Court held that a Lo P EWIS EWIS Meyer supra supra The first parental-rights case was was case parental-rights first The , supra supra supra UBLIC at 105. Although the Court rejected Field’s interpretation in the the in interpretation Field’s rejected Court the Although 105. at , 21 L 21 , Court’s conception of substantive due process “would outlive the eco- the outlive “would process due substantive of conception Court’s P Id. ANDEL Law, Politics, and the New Deal(s) Noam Gidron & Yotam Kaplan, Yotam & Gidron Noam S Dailey, Meyer 401 v. 390,262 Nebraska, (1923). U.S. Dailey, Pierce v. Soc’y Sisters,of 268U.S.510, 534–35 (1925). The The most notable of these was cases In fact, it was through the See , “[b]y the turn of the century, American constitutional law began to unfold as Field had 33 34 35 36 37 32 Lochner at 78. Writing in dissent, Justice Stephen J. Field proposed the interpretation cited above: that above: cited interpretation the proposed Field J. Stephen Justice dissent, in Writing 78. at M K EARCH OFEARCH A dren to public schools for “unreasonably to . . . ents direct the interfer[ing] and upbringing education of children under their control.” with the liberty of par- Court relied Court on relied the occasion.” first its provided that orthodoxy nomic recognized that a “general right to make a contract in rela Amendment.” LochnerFourteenth 45, 198 by v. NewU.S.the of protected individual York, the the education of their own.” Supreme Court struck down a state statute prohibiting schools from teaching in any any in teaching from schools prohibiting statute state a down struck Court Supreme language other than English for interfering with “the power of parents to control The Court explained: explained: Court The constitute this court a perpetual censor upon all legislation of the States, on the civil rights of their their of rights civil the on States, the of legislation all upon censor perpetual a court this constitute own citizens, with authority to nullify such as it did not approve as consistent with those rights.” Id. S Slaughter-House Cases slaughtering business did not violate the rights of the Amendment. plaintiff-butchers under To the Fourteenth hold otherwise, Justice Samuel F. Miller wrote for the majority, “would 2021] 2021] economic state down strike to review process” due “substantive used primarily Court contract. freely to individuals right of the restricted that regulations FUTURE OPEN AN & VACCINATION 215 LCB_25_1_Art_5_Feldman (Do Not Delete) 3/3/2021 8:27 PM

the Fourteenth Amendment was intended to protect the fundamental and unenumerated rights of citizens. proverbial “switch in time”). Supreme Court would eventually repudiate repudiate eventually would Court Supreme fundamental right of privacy underlying parental-rights jurisprudence first right gained jurisprudence fundamental of parental-rights privacy underlying this doctrine. In 1937, the Court would repudiate the fundamental right to contract in W. Coast in contractright fundamental to the repudiate would 1937,Court In doctrine.the this Hotel Co. v. Parrish, 300 U.S. 379, 391–92 (1937), drawing to a close the so-called era.” “ Liberalization Kalman, 45 (1905). The Supreme Court’s recognition of such a right would stifle hundreds of state and until federalFranklin reconsider to regulations the threat Roosevelt’s forced Court court-packing Court clarified that parents have the right to enter into this educational contract, possessed they right a was this Cases hoped and Miller feared.” M recognition. C Y 43059-lcb_25-1 Sheet No. 116 Side A 03/17/2021 10:17:28 A 03/17/2021 116 Side Sheet No. 43059-lcb_25-1 43059-lcb_25-1 Sheet No. 116 Side B 03/17/2021 10:17:28 M K C Y . 881, 908– 881, . EV R

L.

. UFF , 63 B 63 , The Court reaffirmed the power power the reaffirmed Court The . 1, 29–30 (2020) (“A careful academic academic careful (“A (2020) 29–30 1, . Homeschooling: Parent Rights Absolutism may restrict the parent’s con- parent’s the restrict may EV R

involved a First Amendment Free Ex- Free Amendment a First involved Responding to the ChildhoodVaccinationCrisis: the Respondingto L. ng child welfare by treating it as a com- by treating ng child welfare

. RIZ Yoder

. parens patriae , 62 A 62 , , the Supreme Court further limited the scope of Elizabeth Bartholet, Bartholet, Elizabeth

See Prince if itappears that parental decisions will jeopardize the health

, the Court acknowledged that, despite the fundamental right right fundamental the despite that, acknowledged Court the , Wisconsin v. Yoder v. Wisconsin era ended, it began to delineate the boundaries of this right. In Prince

Lochner at 212–13 (citing one Dr. John Hostetler, who testified that compulsory school school compulsory that testified who Hostetler, John Dr. one (citing 212–13 at at 535. 535. at Wisconsin v. Yoder, Wisconsin 207 205, 406(1972). U.S. Id. Id. Princeomitted).(1944) (citation 166 158, v. Massachusetts, 321 U.S. It should be noted, however, that the Court does not expressly treat child wellbeing as a Dorit Rubinstein Reiss & Lois A. Weithorn, [T]he family itself is not beyond regulation in the public interest, as against a against as interest, public the in regulation beyond not is itself family [T]he claim of religious liberty. parenthood And are beyond neither limitation. Acting rights to guard of theyouth’s well religion general being, interestthe state nor in as rights of The fundamental theory of liberty upon which all governments in this Union Union this in governments all which upon liberty of theory fundamental The repose excludes any general power of the State to standardize its children by instructionacceptthem forcingtopublic notfrom teachers ischildonly. The the mere creature of the State; those who nurture him and direct his destiny with and the prepare have to coupled duty, recognize high the for right, him obligations. additional family the of privacy the to recognize continued Court the Supreme Although Nearly 30 years after trol . . . . 41 42 38 39 40 vs. Child Rights to Education & Protection & Education to Rights Child vs. parental rights in rights parental intermediate scrutiny standard. attendance would “ultimately result in community as the it States”). United exists in the destruction of the Old Order Amish church compelling compelling state interest, even though the rights at issue are considered fundamental and would otherwise receive strict scrutiny review. In practice, the Supreme Court has applied an Mennonites, who asserted that mandatory high school education anposed school high mandatory education existen- that asserted who Mennonites, way of and life. tial religion to threat Amish the ercise Clause challenge to a Wisconsin compulsory school attendance law by Amish Amish by law attendance school compulsory Wisconsin a to challenge Clause ercise

analysis of all the Court’s cases involving conflicting parent and child interests concludes that the Court regularly balances the interests, effectively applying an intermediate scrutiny standard.”); also see Refusal Vaccine Parental of Context the in Tools and Frameworks Legal 09 (2015). This was the first time that the Supreme Court had curtailed the exercise of parental parental of exercise the curtailed had Court Supreme the that time first the was This protecti welfare, child of rights in the name interest. state pelling 216 216 REVIEW LAW CLARK & LEWIS 25.1 [Vol. LCB_25_1_Art_5_Feldman (Do Not Delete) 3/3/2021 8:26 PM after after the Massachusetts v. Prince privacy: to familial of states to curtail fundamental liberty interests in the name of child welfare, writing writing welfare, child of name the in interests liberty fundamental curtail to states of that parental power, “even when linked to a free exercise claim, may be subject to under limitation 43059-lcb_25-1 Sheet No. 116 Side B 03/17/2021 10:17:28 B 03/17/2021 116 Side Sheet No. 43059-lcb_25-1 43059-lcb_25-1 Sheet No. 117 Side A 03/17/2021 10:17:28

. OLUM Prince at 224. 224. at Id. Although Following Following This ambi- This , 102 C 102 , another land- ,

at 212–13. 212–13. at the right of mature minors minors mature of right the but in the very same year year same very the in but Id. the Court broadened broadened Court the . 1335, 1348 (2019). involved a Washington statute statute Washington a involved § 26.10.160(3) (2019)). § 26.10.160(3) (2019)). Troxel v. Granville v. Troxel EV R

ODE . 635, 639 (2002) (citations omitted).. 639635, (2002) (citations L. C Troxel

EV .

note 22note and accompanying text. R

Bellotti v. Baird v. Bellotti EV L. R

. . OFSTRA A supra supra ASH which allowed parents to commit their children children their commit to parents allowed which , 88 V , 88 , 47 H , 47 Court upheld the mother’s parental rights against against rights parental mother’s the upheld Court , the applicable constitutional standard has remained remained has standard constitutional applicable the , Troxel note note 40, at 32 (“However, the Supreme Court has not made the ’s Legacy ’s Troxel The Constitution as Family Arbiter: A Moral in the Mess? the in Moral A Arbiter: Family as Constitution The note 28, at1026; supra supra Parham Parham v. J.R. note 48, at 369. “Parental” Rights “Parental” supra supra supra supra , 530 U.S. at 60 (citing W at 53060 (citing U.S. , left an ambiguous legacy that resulted in inconsistent treatment of pa- of treatment inconsistent in resulted that legacy ambiguous an left Dailey, Dailey, Troxel53057 (2000). U.S.v. Granville,

Although the the Although Janet L. Dolgin, Bartholet, at 233–34. 233–34. at See Mark Strasser, Yoder 443 Bellotti U.S.v. Baird, (1979). 643–44 622, See See Dolgin, Troxel Buss, Emily See Id. The Court reasoned that the petitioners failed to show “that upon leaving the Amish . 337, 369 n.150 (2002) (citing Parham v. J.R., .620 422(1979)). 337, U.S.n.150 (citing 369 (2002) 584, , the Supreme Court recognized in recognized Court Supreme the , Yoder 45 46 47 48 49 50 51 52 53 43 44 EV R M K

authorizing non-parent visitation rights whenever “visitation may serve the best in- the may best serve “visitation whenever rights visitation non-parent authorizing terest of the child,” under which the petitioner-grandparents had sought to secure visitation rights with their grandchildren against the wishes mother. of the respondent- mark case “illustrat[ing] the confused state of the Court’s constitutional jurispru- dence respecting children in families.” In the two decades since since decades two the In unclear. the Supreme Court ruled in favor of the Amish after determining that exempting to cur- interests to state harmful was insufficiently from the statute Amish children parents, Amish of rights parental and religious the tail L. 2021] 2021] burdens.” social significant for potential a have or child, the of safety or FUTURE OPEN AN & VACCINATION 217 LCB_25_1_Art_5_Feldman (Do Not Delete) 3/3/2021 8:27 PM

by empowering states to curtail parental liberties where they either “hinder a child’s child’s a “hinder either they where liberties parental curtail to states empowering by eventual participation in the broader political community” or “interfere with com- ideals.” political broader our with consistent traditions munity guity persisted into the twenty-first century with century twenty-first the into persisted guity as law-abiding and generally self-sufficient members of society.” law-abidingas and of members society.” generally self-sufficient community[,] Amish children, with their practical agricultural training and habits of industry and industry of habits and trainingagricultural practical their with children, Amish community[,] because self-reliance,society educational on become would burdens of shortcomings.” The Court seemed to give particular weight to the fact that Amish ha[d] “the an excellent record the visitation statute, it “scrupulously avoid[ed] any strong endorsement of parental parental of endorsement strong any avoid[ed] “scrupulously it statute, visitation the about decisions parents’ entitled Clause Process Due the that “concluded and rights” weight.” special some least “at merely to activities” and associations children’s their Yoder upheld a in statute a hearing. to a right them affording without hospital mental a state to rental rights in future cases, where “[s]ometimes, parental rights are characterized as as characterized are rights parental “[s]ometimes, where cases, future in rights rental robust, but at other times are characterized as readily overridden.” to make medical decisions without parental consent, C Y 43059-lcb_25-1 Sheet No. 117 Side A 03/17/2021 10:17:28 A 03/17/2021 117 Side Sheet No. 43059-lcb_25-1 43059-lcb_25-1 Sheet No. 117 Side B 03/17/2021 10:17:28

M K It L.J. C Y

. Y ASTINGS , 90 K The state’s vaccination , 69 H 69 , parens parens patriae And And fourth, the Id. childhood common-law sources: sources: common-law McCarthy v. Boozman, 212 The state’s state’s The , , 197 U.S. 11, 28 (1905), the James G. Hodge, Jr. & Lawrence Lawrence & Jr. Hodge, G. James see also See ; Compulsory Vaccination Laws Are Id. tious diseases. This is the issue this to mandate childhood vaccination, and this ity of states to mandate vaccination is broad but not not Jacobson Jacobson v. Massachusetts . 589, 595 (2016) (“There is no doubt that compulsory EV compellingstateinterest protectingof society against thespread note 1, at 797–802. R

The authority of states to mandate L.

authority and its police power. police its and authority supra supra A Constitutional Jurisprudence of Children’s Vulnerability Children’s of Jurisprudence Constitutional A U.

. W , 110 N parens parens patriae School Vaccination Requirements: Historical, Social, and Legal Perspectives at 797–98.at 797.at Lois A. Weithorn,A. Lois Weithorn & Reiss, Id. Id. Erwin Erwin Chemerinsky & Michele Goodwin, Unclear Unclear as the general constitutional standard for reviewing curtailments of It is well-settled law that states may mandate for constitutionally vaccination 55 56 57 58 54 F. Supp. 2d 945, 948 (W.D. Ark. 2002) (noting that, “[i]t has long been settled that individual the to subordinated be must rights of disease”). 831, 831, 856–57 (2001–02). Third, the police power must be exerted in proportion to the public health threat and can be if unconstitutional gratuitously onerous or unfair. its risk subject. to a health itself measure pose should not in in particular springs from two “inextricably intertwined” Constitutional authority is its paternalistic authority to regulate the lives of children and other vul- other and children of lives the regulate to authority paternalistic its is authority welfare. their of promotion the and protection their for groups nerable the state’s power, police on the other hand, is a “to regulatebroader authority the conduct of whole.” a as society . . [of] . welfare general the promote to order in individuals

L.J. 179, 218–19 (2017). L.J. (2017). 218–19 179, applicable constitutional standard entirely clear.”). 218 218 Crisis Hesitancy Vaccine the and Vaccination B. quite is vaccination childhood compulsory of status legal the be, may rights parental against children of vaccination mandate to power the have indisputably states clear: REVIEW LAW CLARK & LEWIS objections grounded in both religious freedom and parental rights. This Part will explain how constitutional objections to mandatory childhood vaccination have been altogether rejected, empowering states to mandate immunization as they see choose also may states However, fit. 25.1 [Vol. LCB_25_1_Art_5_Feldman (Do Not Delete) 3/3/2021 8:26 PM exposing the children of vaccine-hesitant parents to whatever health risks may come come may risks health whatever to parents vaccine-hesitant of children the exposing infec to immunization without up growing from addressing. with concerned primarily is Article alike. adults and children greater power includes the lesser power to grant non-medical exemptions from those those from exemptions non-medical grant to power lesser the includes power greater vaccination is constitutional.”). The author totally free of constitutional limits. In Supreme Court recognized that this authority is subject to four constraints: first, police powers must be based on the necessity of the case and must extend intervention health public the between only relationship be a must reasonable there Second, required. to the extent it is reasonably objective. health public legitimate the of achievement the and O. Gostin, vaccine vaccine mandates they do impose. States that grant non-medical exemptions risk 43059-lcb_25-1 Sheet No. 117 Side B 03/17/2021 10:17:28 B 03/17/2021 117 Side Sheet No. 43059-lcb_25-1 43059-lcb_25-1 Sheet No. 118 Side A 03/17/2021 10:17:28 , at at Par- Id. because the Mandatory Mandatory

Jacobson , in in , Jacobson Jacobson v. Massachusetts as a paradigmatic example example paradigmatic a as authorities. Prince the child’s and parents’ concerns.” concerns.” parents’ and child’s the parens patriae parens The SupremeCourt established in parens patriae parens has since played a more prominent role in in role prominent more a played since has note 40,at 907. s. The right to practice religions freely does not include not include does freely religions practice The right to s. But, by the time the Court had begun developing its sub- its developing begun had Court the time the by But, parens patriae supra supra , 197 U.S. at 26 (citing Crowley v. Christensen, 137 U.S. 86, 89 (1890)). that fundamental parental rights include a right to make medical deci- medical make to right a include rights parental fundamental that The Court usedpolice power, not Nevertheless, Nevertheless, at 907, 928. 928. 907, at

. MeyerNebraska, U.S. (1923). v. 262 396–98 390, Cf make to empowered are parents decisions, medical of nature intimate highly the Despite Jacobson Reiss & Weithorn, Id. Id. As As discussed in Part II.A, weighing against these powers are parents’ First 63 64 59 60 61 62 at 25. 25. at M K Id. petitioner petitioner was a competent adult and the state’s justification for its authority mandate a to smallpox vaccination was grounded exclusively in its communal welfare interest. their relevance to both police power and and power police to both their relevance childhood childhood vaccination policies are thus unique among health care regulations in these decisions for their immature children because the law presumes that they are both fit make to important decisions and to act in their child’s best interests. Regarding parent fitness, the Supreme Court explains that the law’s conception of the family for capacityrequired judgmentand“rests experience, for maturity, in lackschild what a possess parents on a presumption that making life’s difficult decisions.” Parham v. J.R., 422 U.S. 584, 602 (1979). And regarding the identity of interests between parent and child, the Court wrote that the child’s interest “is Elsewhere in the opinion, the Court expressly recognizes the State exercise of police power, writing writing power, police of exercise State the recognizes expressly Court the opinion, the in Elsewhere “[t]he police power of a safety.” public the State and health public must the protect will be as enactment legislative held by directly established to embrace, at least, such reasonable regulations inextricably linked with the parents’ interest in and obligation for the welfare and health of the child, the private interest at stake is a combination of 600. ham v. J.R. children.one’ssionsfor

justifications for mandatory vaccination policies affecting children. Amendment right of free religious exercise and their Fourteenth Amendment right right Amendment and exercise Fourteenth Amendment right of their free religious children. their of upbringing the direct to 2021] 2021] constitution- the upheld first Court Supreme the that ofwas power in police terms in ality vaccination of mandating a ordinance municipal FUTURE OPEN AN & VACCINATION munity.” 219 LCB_25_1_Art_5_Feldman (Do Not Delete) 3/3/2021 8:27 PM himself on religious ground religious on himself or disease the latter or to the child the to expose communicable community liberty stantive due process jurisprudence, the state’s interest in immunizing its population population its immunizing in interest state’s the jurisprudence, process due stantive substantial a as Court the by recognized been long had diseases communicable from one. In fact, the Court pointed to vaccination in of an interest that may allow a state to override fundamental liberties: “[a parent] cannot claim freedom from compulsory vaccination for the child more than for reasoning that “all rights [including liberty] are subject to such reasonable condi- . . . tions essential to the safety, health, peace, good order and morals of the com- C Y 43059-lcb_25-1 Sheet No. 118 Side A 03/17/2021 10:17:28 A 03/17/2021 118 Side Sheet No. 43059-lcb_25-1 43059-lcb_25-1 Sheet No. 118 Side B 03/17/2021 10:17:28

, M K L.J. C Y

. powers. NTERDISC I

. AL C

parens patriae parens , 21 S. children from communi- , it held that state police power Some states also require that Vaccinations Vaccinations Among Homeschooled other

. 171, 184 (2010) (“A litigant seeking EV Jacobson R

The rationale behind these require- these behind rationale The L. “herd immunity,” which allows eradica- allows which immunity,” “herd Needles and Notebooks: The Limits of Requiring Off the Grid: note note 54, at 604 (stating that people who believe 645, 645 (2001). AMLINE through its police and and police its through . 765, 784 (2011) . (“While 765, 784 Supreme the (2011) has Court never supra supra Processes for Obtaining Nonmedical Exemptions to State EALTH EV H , 33 H

R

. where, relying on on relying where, 471, 473–75 (2007). (June (June 26, 2020), https://www.ncsl.org/research/health/school- note 40,at 912. L. UB P

ALL J.

Although the Supreme Court has not expressly disaffirmed THICS . supra supra H Protecting the Herd: A Public Health, Economics,ArgumentHealth,forLegal Public and A Protecting Herd: the E M

&

. note 67, at 176. 176. at 67, note Zucht v. King ETON ETON EGISLATURES ED , 91 A 91 , Reforming New Jersey’s Vaccination Policy: The Case for the Conscientious L

M .

T supra , 41 S S

Herd immunity is particularly important for children who are too too are who children for important particularly is immunity Herd . , Donya Khalili & Arthur Caplan, Jennifer S. Rota et al., al., et Rota S. Jennifer Chemerinsky & Goodwin, & Chemerinsky ONF , 35 J.L. 35 , Second, the state hasan interest in protecting E.g. See Jacobs, Parkins,Christine States with ReligiouswithStates andPhilosophical Exemptions fromImmunizationSchool Requirements Prince v. Massachusetts, 321 U.S. 158, 321 v. Massachusetts, 166–67Prince (1944). U.S. Reiss & Weithorn, See C Exercising these powers, all 50 states have enacted legislation requiring speci- L 69 70 71 72 68 ’ 65 66 67 AT cable diseases through the of through maintenance cable diseases tion of a disease from a ifpopulation most, but not all, members are vaccinated. a right to a belief-based exemption from vaccination, it is the wide consensus of legal legal of consensus wide the is it vaccination, from exemption belief-based a to right a in protect- interest such parents scholars have right no that given the government’s to authority broad “breathtakingly its and diseases communicable from children ing decisionmaking” parental override such regulations in Taxing Parents Who Opt-Out of Mandatory Childhood Vaccinations 437, (2011). 446 N immunization-exemption-state-laws.aspx. The Supreme Court upheld the constitutionality of young to be vaccinated and children young to who are and children to they be be unable because vaccinated vaccinated parents parents vaccinate home-schooled children. To To achieve herd immunity for most diseases, vaccination rates of 85% to 95% are necessary. fied vaccines for children who attend public schools. public attend who children for vaccines fied exemptions exemptions from a compulsory vaccination requirement on the Establishment basis Clause of the likely Free will Exercise lose. or These issues have been extensively . . . .”); adjudicated indicates that it would find no such right.”). school has historically proven successful at ensuring that parents vaccinate their chil- their vaccinate parents that ensuring at successfulproven historically has school dren. 220 220 death.” or health ill to REVIEW LAW CLARK & LEWIS 25.1 [Vol. vaccine- of children the protecting in interest an has state the first, twofold: is ments hesitant parents from communicable diseases, and the penalty of exclusion from LCB_25_1_Art_5_Feldman (Do Not Delete) 3/3/2021 8:26 PM

permitted a state to make vaccination a condition of attending public or private school. Zucht v. 260King, U.S.176–77 (1922). 174, Children Laws Immunization ruled explicitly on the right to a belief-based exemption from vaccination, its case law strongly parents have a constitutional right to refuse to vaccinate constitutional right theirexists. In fact, children every court to “are consider challenges wrong. to compulsory No vaccination such laws has upheld the statutes.”); Allan J. Jacobs, Michael Poreda, Exemption Bill Immunization for Immunization School Attendance 43059-lcb_25-1 Sheet No. 118 Side B 03/17/2021 10:17:28 B 03/17/2021 118 Side Sheet No. 43059-lcb_25-1 43059-lcb_25-1 Sheet No. 119 Side A 03/17/2021 10:17:28

, , See . 749, —15 —15 EV R

L. 277, 284 However, However, L.

. A V

EALTH H websites examined examined websites all , 119 W. NNALS note 68. However, just five states— , 12 A supra supra , In contrast, contrast, In note 68. supra supra , States with Religious and Philosophical Exemptions

To ensure the safety of these children, states states children, these of safety the ensure To note 40,at 918–19. note 72, at 448). 72, 448). at note No More Kidding Around: Restructuring Non-Medical Childhood supra supra supra Taking Taking One for the Herd: Eliminating Non-Medical Exemptions to A Anti-Vaccination Misinformation on PostmodernBox:the Pandora’s Internet Forty-five states and Washington D.C. grant religious exemptions as as exemptions religious grant D.C. Washington and states Forty-five This may be in part due to the fact that philosophical exemptions gen- exemptions philosophical that fact the to due part in be may This

1709, 1713 (2010). 1709, (2010). 1713 States with Religious and Philosophical Exemptions

Reiss & Weithorn, The states that allow both religious and secular objections include: Arizona, Arkansas, Ross D. Silverman, See id. Kata, Anna Kylie Kylie Barnhart, See See id. Hawaii, Florida, Georgia, Delaware, Connecticut, Alaska, Alabama, include: states These As for “philosophical” exemptions—which are sought by those who object object who those by sought are exemptions—which “philosophical” for As note 68. Although states may lawfully mandate childhood vaccination, they are not vaccination, re- Although mandate states childhood may lawfully In states that provide both philosophical and religious exemptions, there are far far are there exemptions, religious and philosophical both provide that states In ACCINE 77 78 79 80 81 73 74 75 76 M K states also provide these exemptions. these provide also states Colorado, Idaho, Louisiana, Michigan, Minnesota, North Dakota, Ohio, Oklahoma, Pennsylvania,Oregon, Texas, Utah, and Wisconsin. supra Immunization Exemptions to Ensure Public Health Protection (2003). V 28 Compulsory Vaccination Laws to Protect Immunocompromised Children Illinois, Indiana, Iowa, Kansas, Nebraska, Nevada, New Hampshire, New Jersey, New Mexico, North Carolina, Rhode Island, Kentucky, Maryland, Massachusetts, and South South Washington, Wyoming. Dakota, Tennessee, Carolina, Vermont, Virginia, Missouri, Montana, States with Religious and Philosophical Exemptions well.

to immunizations to immunizations because of personal, moral, or other beliefs non-religious 2021] 2021] “tend to be ‘more susceptible to the complications of infectious diseases than the general population of children.’” lev- immunization keep to vaccinated be can who forchildren vaccination mandate FUTURE OPEN AN & VACCINATION threshold. immunity herd the above els require- to these exemptions of three kinds states grant to do At present, so. quired ments: medical exemptions, religious exemptions, and philosophical 221 exemptions. constitution- are exemptions medical whether clarified not has Court Supreme The ally required, but all 50 states already grant them. LCB_25_1_Art_5_Feldman (Do Not Delete) 3/3/2021 8:27 PM more philosophical exemptions granted than religious combined. and medical exemptions erally require a lower burden of proof than do religious exemptions. 759 Parkins, (2016) (citing Maine, New York, Mississippi, West Virginia, and California—allow only medical only medical and California—allow Virginia, West Mississippi, New York, Maine, argued against vaccination on religious tenets. on religious vaccination against argued numerous studies have found that, when explaining their vaccine hesitancy, parents parents hesitancy, vaccine their explaining when that, found have studies numerous cite much more frequently to secular reasons than religious reasons. For example, one study surveyed websites anti-vaccination and found that only 25% of websites exemptions. C Y 43059-lcb_25-1 Sheet No. 119 Side A 03/17/2021 10:17:28 A 03/17/2021 119 Side Sheet No. 43059-lcb_25-1 43059-lcb_25-1 Sheet No. 119 Side B 03/17/2021 10:17:28

M K C Y May May

and and , PEN Another O

70 (2016). , BMJ note 73, at 753–54 753–54 at 73, note ACCINES V supra EJECT EJECT R ARENTS ARENTS P . 527, 549–50 (2016) (“Allowing religious HY HY EV W note 54, note 595 at (“In other words, there should

R :

L. HOTS supra supra S OUISVILLE constitutionalprotections. States can repeal religious L

Understanding Understanding Non-Vaccinating Parents’ Views to Inform and Others warn of a risk that this coercion will trigger a a trigger will coercion this that risk a of warn Others —that vaccine-skeptical parents commonly appeal to in- ALLING THE C

, which contrasts with the conclusion Jennifer Reich drew in in drew Reich which Jennifer contrasts the with conclusion , 54 U. mpulsory vaccination requirement on account of the parents’ religion or religion parents’ the of account on requirement vaccination mpulsory EICH R note 84, at 10. 10. at 84, note

A. , Chemerinsky & Goodwin, , Chemerinsky supra

This study only found that a minority were guided by an intuitive deci- intuitive an by guided were minority a that found only study This Calling the Shots at 1711.at 1712.at But Helps, like Reich, found that vaccine-skeptical parents “saw them- at 10. 10. at ENNIFER ENNIFER Helps, See id. See, e.g. Id. Id. Catherine Helps et al., Id. J Considering Considering the purely philosophical nature of most vaccine hesitancy, one 87 88 89 82 83 84 85 86 be no exception to the co the to exception no be conscience or for any reason other than medical necessity.”); Barnhart, (“This Note argues that states compulsory vaccination should laws to . . . protect eliminate immunocompromised children.”); religious Megan Gibson, and philosophical exemptions to sion-making process, sion-making study, conducted by Catherine Helps, interviewed vaccine-skeptical parents and also also and parents vaccine-skeptical interviewed Helps, Catherine by conducted study, These predominated. objections to found conformed objections that philosophical com- vaccines of skepticism a developed who parents specifically, themes: particular monly perceived “that health in general is deteriorating in western societies,” and commonly reported either a concrete personal experience that introduced doubt inter- medical minimal with lifestyle a for preference general a or vaccination about vention. Overall, Overall, these studies suggest that parents reject these of vaccines for particulars the various for reasons, As but ones. religious over predominate reasons philosophical professionals medical of distrust a exhibit consistently parents reasons, philosophical and Western medicine generally, and instead defer to their own independent re- judgment. and search

2019, 1,3 (2019). at her book tuition. 222 222 in are and this poisonous illnesses,” studycause “claimed idiopathic vaccines well. as theories conspiracy and medicine alternative both promoted most REVIEW LAW CLARK & LEWIS 25.1 [Vol. LCB_25_1_Art_5_Feldman (Do Not Delete) 3/3/2021 8:26 PM selves as the central expert and the person most qualified to make decisions and take take anddecisions make to qualifiedpersonmost the and expertcentralthe asselves responsibility for their child’s health, including decisions regarding vaccination.” exemptions toexemptions state mandated vaccination matriculationfor policies into public school systems is health . inherently. a from public . standpoint .”). problematic crisis while having virtually no virtually having while crisis at and objections philosophical any and moment, many have scholars urged them to do that without delay. may may wonder how vaccine hesitancy could have ever brought about a public health Improve Improve Clinical Encounters: A Study Qualitative in an Australian Community Competing Concerns: Can Religious Exemptions to Mandatory Childhood Vaccinations Health and Successfully PublicCoexist? 43059-lcb_25-1 Sheet No. 119 Side B 03/17/2021 10:17:28 B 03/17/2021 119 Side Sheet No. 43059-lcb_25-1 43059-lcb_25-1 Sheet No. 120 Side A 03/17/2021 10:17:28

Nov. Nov.

, Experiences with EDIATRICS , P ht to an open future,” open an to ht 1101, 1106–07 (2005). (2005). 1106–07 1101,

and spur non-compli- spur and L.

. ONST C

J. Salini Mohanty et al., al., et Mohanty Salini

. A See P

g anti-vaccination g anti-vaccination sentiments among ions ions of this right and settling on the erest in protecting children’s health and and health children’s protecting in erest right of this kind may be a logical exten- , 7 U. troduce Feinberg’s “rig Feinberg’s troduce The Religious and Philosophical Exemptions to State-Compelled note 67, at 780. 780. at 67, note supra III. THE CHILD’S RIGHT TO AN OPEN FUTURE FUTURE OPEN TO AN RIGHT CHILD’S THE III. Alicia Novak, Novak, Alicia Scholars have also argued that these exemptions are valuable in their own See For example, when California revoked all non-medical exemptions, the state saw an Poreda, Although the law defers to the state int state the to defers law the Although The question this Article asks is this: should children have some affirmative 90 91 92 M K Vaccination: Constitutional and Other Challenges Other and Constitutional Vaccination: increase in medicalthe number of sought. exemptions 1, 2018, at 1, 2 (2018) (suggesting that parents who previously exploited medical exemptions whennon-medical had ones were repealed). non-medical exemptions wellbeing, wellbeing, children remain at risk of going unvaccinated and suffering heightened ex- non-medical grant that states in diseases preventable and dangerous to exposure of political will to override parental or religious liberties. But it cannot be forgotten forgotten be cannot it But liberties. religious or parental override to will political of population the of segment a children, on falls choice political this of burden the that whatsoever. voice political with no vaccination to access existing of protection greater to least at or vaccination, to right A possible objections? in of parental spite Joel by philosopher the conceptualized future” open an to “right sion of child’s the right in conceptual This Feinberg. this Partintroduce will Article III and argue for IV. in Part vaccination to childhood extension its Avoiding these issues and ensuring that children are vaccinated to the greatest extent extent greatest the to vaccinated are children that ensuring and issues these Avoiding possible may require addressing distrust of medical institutions and the spread of misinformation online that seem to be fuelin parents. Nevertheless, the fact remains that vaccine hesitancy poses a serious and growing threat that places children at an increasingly greater risk once on the diseases communicable verge To the of eradication. extent allow states of contracting vaccination rates to decline, it is not because of any legal obstacle but rather a lack

2021] 2021] backlash that could mobilize anti-vaccination advocacy FUTURE OPEN AN & VACCINATION 223 LCB_25_1_Art_5_Feldman (Do Not Delete) 3/3/2021 8:27 PM right as “an important part of the balance of public health and personal liberty.” Medical Medical After Exemptions a in Change in Vaccine Policy Exemption California ance. arguing arguing that Feinberg’s theory is necessarily correct, but it concludes by discussing emptions. This Article proposes that if one accepts Joel Feinberg’s theory that chil- theory Joel Feinberg’s one if that accepts proposes Article This emptions. dren have a right to an future,” “open one must children understand as to entitled greater access vaccination than they have in such states. explaining Before why this in will Article this IV, Part in case the is examining the different potential interpretat that only requires future open an to right the that interpretation: “moderate” right’s Article This plans. life of range a reasonable among choose to able be adult future a than rather future open an to right a has child a that purposes its for assumes merely C Y 43059-lcb_25-1 Sheet No. 120 Side A 03/17/2021 10:17:28 A 03/17/2021 120 Side Sheet No. 43059-lcb_25-1 43059-lcb_25-1 Sheet No. 120 Side B 03/17/2021 10:17:28

M K HE HE C Y T Sec- in , including including

the single ‘right to an open future,’

, Joel Feinberg conceives of three broad broad of three conceives Feinberg Joel , The other is “rights-in-trust,” which are are which “rights-in-trust,” is other The Indeed, it is unclear whether this right is even a pos- a even is right this whether unclear is it Indeed, simply describes the form of the particular rights in question and ar are entitled to immunization by virtue of their right to an open an to righttheir immunizationvirtue byof entitledto arear 95–123 (2019); Alexandria Shinaut, The Moral Obligation We Have Fairness, Compulsory Vaccination, and Conscientious Objection , note 10, at 97. 97. at 10, note supra IUBILINI G ACCINATION V at 97–98. 97–98. at 98. at as up besummed can “rights-in-trust that (writing

The Child’s Right to an Open Right Future Open to The an Child’s Feinberg, Id. Id. Id. Id. Id. This is not the first article that has argued that vaccination is required by liberal principles. principles. liberal by required is vaccination that argued has that article first the not is This guarantee now that when the child is an autonomous adult, certain key op- tions will already be closed to him. While he is still a child, he has the right to have these future options kept open until he is a fully formed self-deter- Feinberg expressly leaves unspecified those derivative rights that this right to When sophisticated autonomy rights are attributed to children who are clearly clearly are who children to attributed are rights autonomy sophisticated When not yet capable of exercising them, their names refer to rights that are to be advance, in violated be can which but adult, an is he until child the for saved them. Violations exercise to even is a in position child the before speak, to so In mining agent capable of deciding among them. LBERTO 94 95 96 97 98 99 93 A THICS OF species of rights that can be held by people as adults or children: first, there are rights are there first, children: or adults as people by held be can that rights of species that both adults and children enjoy in equal measure (“A-C–rights”), to to Our Community to Be Vaccinated 1, 31–36 (Apr. 29, 2016) (unpublished undergraduate formula vague that course of but See And third, there are rights that are generally characteristic only of children (and are are (and children of only characteristic are generally that are rights there third, And “C–rights.” calls Feinberg which circumstances), unusual in only adults by possessed There are two kinds of C–rights: one kind is which “dependency-rights,” children derive from their dependence upon others for the basic instrumental goods of life (such as food, shelter, and protection). itive itive or a negative right. Daniela right Cutas Feinberg’s characterizes as definitively E 224 224 the extent to which the right is consistent with both constitutional jurisprudence it. underlies thatof rights conception liberal and the REVIEW LAW CLARK & LEWIS 25.1 [Vol. LCB_25_1_Art_5_Feldman (Do Not Delete) 3/3/2021 8:26 PM similar to adult autonomy rights except that children are not yet capable of exercis- of yet capable are not that children except rights autonomy adult to similar explains: Feinberg them. ing an open future might entail. might future an open those negative rights people by have to people those rights be not people. other negative harmed directly ond, there are rights that belong only to adults (“A–rights”), which include both legal rights (such as voting or drinking alcohol) and autonomy rights that cannot apply to small children (such as the right of free exercise of one’s religion, “which in that or one presupposes preferences the has convictions first place”). religious thesis, thesis, Carroll College) (on file with Carroll College). This Article makes a different particul childrenin thatarguing claim in future. 43059-lcb_25-1 Sheet No. 120 Side B 03/17/2021 10:17:28 B 03/17/2021 120 Side Sheet No. 43059-lcb_25-1 43059-lcb_25-1 Sheet No. 121 Side A 03/17/2021 10:17:28

. in , HIL P

. USTICE J OC . 537, 547 547 537, . S 189, 195 195 189,

HIL conditions by conditions future only in in only future P

. , 45 J. OC ENETICS S

G ENETICS AND AND ENETICS G

: This Article will also also will Article This , 37 J. agent-internal HOICE C a a right to an open

EUROSCIENCE AND HANCE HANCE TO N C ROM F

., ONTEXT OF g and subsequent literature, Millum articulates C Joseph Millum, in contrast, says the right can be un- be can right the says contrast, in Millum, Joseph The “moderate interpretation” of the right requires only only requires right the of interpretation” “moderate The UCHANAN ET AL ET UCHANAN The Foundation of the Child’s Right to an Right of Open the Future Child’s The Foundation B Should Parents Take Active Steps to Preserve Their Children’s Fertility? The nature of the right as negative or positive is critical for for critical is positive or negative as right the of nature The And lastly, the “weak interpretation” of the right simply protects protects right simply the of interpretation” “weak the lastly, And LLEN LLEN to their children, rather than what they should do to them for the the for them to do should they what than rather children, their to , A (“Parents must foster and leave the child with a ofrange opportunities for choice

Feinberg, Mills, and the Child’s Right to an Open Future ESPONSIBILITY ESPONSIBILITY IN THE R at 525. 525. at

Id. Id. See, e.g. Daniela Cutas, Cutas, Daniela Joseph Millum, Id. not to do As Millum notes, philosophers who cite Feinberg’s theory generally adopt the adopt the generally who theory cite Feinberg’s As philosophers notes, Millum Surveying Surveying Feinberg’s writin 103 104 105 100 101 102 M K ARENTAL adopt the moderate interpretation because it honors the strength lan- it of the because Feinberg’s honors strength interpretation the adopt moderate 170–75 170–75 (2000) 522, 524 (2014) (“First, the right to an open future could be a negative or a positive right, or, aspects toand positive it . . . .”). negative plausibly, both be could there of his or herlife,withown plan ofhisof the orabilities skills and reasonable a necessarypursue to range of judgmentand reasoning practical for capacities alternatives,the withand and opportunities those that enable the individual to engage in reasoned and critical deliberation about those choices.”); Mianna Lotz, P not not their specific content. It is plausible to ascribe to children some, not all respects, and the simple formula leaves those respects unspecified.”). “that the future adult be able to choose among some, perhaps particularly important, important, particularly perhaps some, among choose to able be adult future the “that options.” of set 2021] 2021] “negative in nature, rather than positive, and concern[ing] mostly what ought parents sake FUTURE OPEN ofAN & VACCINATION their own future.” derstood as either negative or positive, and may even embody both negative and positive elements. 225 LCB_25_1_Art_5_Feldman (Do Not Delete) 3/3/2021 8:27 PM the child’s development of her capabilities, but only insofar as validating children’s but insofar as ofonly capabilities, validating her children’s the child’s development obliga- what about nothing saying while agents autonomous into develop to claims autonomy. this realize help to have others tions

defining defining the right’s exact scope because it determines whether children have an af- firmative right to receive vaccines, or just a right not to be interfered with in their obligations those of scope and nature the determines turn, in This, them. of receipt well. as children toward have parents and state the moderate moderate interpretation for the right to an open future. (2006) (arguing that parents have “a duty to provide for their child’s their child’s for provide to “a have duty that parents (arguing (2006) (Kristien Hens et (Kristien Hens al. 2017). eds., three possible of interpretations the right’s scope: first, the “strong interpretation” of the right requires that “all the options that might permissibly be chosen by the adult a autonomous that child could into grow must the within be protected, con- straints of feasibility.” seeking to develop in their child the skills and capacities for information seeking, critical reflection, reflection, critical seeking, information for capacities and skills the child their in develop to seeking deliberative independence, and the like”). C Y 43059-lcb_25-1 Sheet No. 121 Side A 03/17/2021 10:17:28 A 03/17/2021 121 Side Sheet No. 43059-lcb_25-1 43059-lcb_25-1 Sheet No. 121 Side B 03/17/2021 10:17:28

. M K C Y HIL but but , 9 P However, there there However, HILOSOPHICAL AND HILOSOPHICAL P

: 97, 107 (David Archard HILDREN C HILDREN C But the issue goes deeper than than But deeper goes the issue AVING AVING Special Agents: Children’s Autonomy and a public sidewalk as a child’s right- a child’s as sidewalk public a H

in TATUS OF TATUS , In reality, he explains, the child has his S 271, 275 (2008) (“[P]arents have only limited RACTICE OLITICAL P P 254, 256 (Onora O’Neill & William Ruddick eds., 1979) 1979) eds., Ruddick William & O’Neill (Onora 256 254, Robert Noggle, Noggle, Robert

& see see also HEORY HEORY Children, Paternalism, and Education: A Liberal Argument Not Not Good Enough What’s Parenting: Wrong with the Child’s Right to ORAL AND ORAL T

TheAuthority to Educate M . ARENTHOOD P note 10, at 118. 118. at 10, note note 10, at 99. 99. at 10, note OC HE T note 107, at 106). 106). at 107, note in supra supra , , 34 S supra the right to an open future tempts one to adopt a broad interpretation interpretation broad a adopt to one tempts future open an to right the Feinberg also acknowledges this “paradox of self-determination,” “paradox this acknowledges also Feinberg . 338, 341 (1980); Amy Gutmann, Gutmann, Amy at 120–21. 120–21. at FF Bernard G. Prusak, Henley, Kenneth Feinberg, Id. Feinberg, See EFLECTIONS ON EFLECTIONS A

. R In the continuous development of the relative-adult out of the relative-child there is no point before which the child himself has no part in his own shap- ing,and after which isthehe sole responsible maker hisof characterown and life . plan. . . I think we can avoid or at least weaken the paradoxes if we re- memberthatthe child cancontribute towards makingthe hisofownself and degree. ever-increasing in circumstances 108 109 110 111 106 107 UB P

EGAL there there will be inevitably some life plans that are closed to the child. For a example, he if but, skills of range wide a develop to opportunities abundant receive may child promote, for who knows what projects, values, and commitments he or she will come to have[?]”) have[?]”) to come will she or hecommitments and values,projects,what knows who for promote, Noggle, (citing information information about the future self of the child whose interests they are charged to protect and L problem facing parents in trying to anticipate which of their child’s skills and talents talents and skills child’s their of which anticipate to trying in parents facing problem as obligations their fulfill to cultivating resources toward limited allocate they must sport, language, every master cannot child A rights. autonomy child’s the of trustees and adulthood, reach they time the by activity possible other every and instrument, & AuthorityParental answers answers that this is an over-simplification. degree increasing an to character this developing always is and character innate own Thus: ages. he as Feinberg qualifies his position slightly here but does not fully solve the practical 226 226 guage while avoiding some of the strong pitfalls. interpretation’s Given how Fein- down like walking activities even identifies berg in-trust, REVIEW LAW CLARK & LEWIS 25.1 [Vol. LCB_25_1_Art_5_Feldman (Do Not Delete) 3/3/2021 8:26 PM requiring “the greatest range of reasonable choice . . . as adults.” . . . “the ofrequiring greatest choice range reasonable are problems are problems raised by such a As conception. Robert Noggle argues, parents have limited information about a child’s future self and cannot know which interests to interests. possible all among and promote protect & Colin M. Macleod eds., 2002).M. Macleod Colin & (emphasis omitted). parents. this, for it is not as though a child is born with a set number of predetermined future future predetermined of number set a with born is child a though as not is it for this, interests histhat a of sort are merely “[w]hether of; certain parents rather, ignorant life would please a child often depends upon how he has been socialized” by his an “Open Future” 43059-lcb_25-1 Sheet No. 121 Side B 03/17/2021 10:17:28 B 03/17/2021 121 Side Sheet No. 43059-lcb_25-1 43059-lcb_25-1 Sheet No. 122 Side A 03/17/2021 10:17:28 , , HE HE T N THE in O ,

: REATISE OF bat mitzvah 682 (2014). (2014). 682 (“The (“The public T

or or bar HEORY , have correlative T

ONSTRAINT ECOND . S C

OL , note 31, at 5 in rem Rawls and Liberalism , 42 P 42 , OCKE L or or supra supra , As Bernard Prusak explains, defines liberalism is a deceptively deceptively a is liberalism defines OHN ASSIONS AND P what

ANDEL , stify imposing additional obligations obligations additional imposing stify , S Feinbergintended to eschew this theo- in personam writes this interpretation off almost im- writes this interpretation OLMES What is Liberalism? is What H See, e.g. but to the author’s knowledge none have ar- have none knowledge author’s the to but Fundamental Legal Conceptions As Applied in Judicial TEPHEN The Relationship Between Obligations and Rights of Citizens S 62, 62 (Samuel Freeman ed., 2003) (“It is a significant fact fact significant a is (“It 2003) ed., Freeman (Samuel 62 62, corresponding obligations. Fundamental to Ameri- to Fundamental obligations. corresponding does liberal theory.”). theory.”). liberal does

15 wrote(1995). thatLocke John “a state of perfect freedom” no Duncan Bell, AWLS R note 101, at 525–26. 525–26. at 101, note EMOCRACY See generally See . 1721, 1722 (2001) (“Individual rights, without more, are a thin way to supra D L.J. 710, 717–18 (1917). L.J. 717–18 710, (1917). EV R

ALE and this Article will do the same. the same. do will Article and this 8 (C.B. Macpherson ed., Hackett Publishing Co. 1980) (1690). Although Although (1690). 1980) Co. Publishing Hackett ed., Macpherson (C.B. 8 OMPANION TO L. IBERAL IBERAL C L William N. Eskridge, Jr., Jr., Eskridge, N. William Millum, Wesley Newcomb Hohfeld, Scholars have argued that one can ju one can that argued have Scholars , 26 Y 26 , See See Liberalism is widely regarded as the philosophy underlying political thought in the See As for the weak interpretation, it is implausible that Feinberg envisioned chil- envisioned that Feinberg it is As implausible for interpretation, the weak The moderate interpretation also The makes the moderate interpretation most sense when one views Fein- ORDHAM 113 114 115 112 persons. As Stephen Holmes has observed, “[t]he best place to begin, if we wish to cut to the the to cut to we if wish begin, to best place “[t]he observed, has Holmes Stephen As persons. M K OVERNMENT AMBRIDGE HEORY OF HEORY dren having some right with with right some having dren can law is the notion that rights, whether gued the converse. It is highly doubtful that doubtful highly is It converse. the gued retical convention for his right to an open future, and his theory makes little sense anyway. under Millum that interpretation mediately, about about our age that most political argument in the Western world now goes on between different branches of [the liberal] tradition.”). And yet, exactly question.challenging duties.

C T and equality are the natural conditions of persons, and people may order their lives as they see fit so long as they do G not violate the rights of others. J Reasoning 69 F United States and across the Western world. berg’s berg’s theory in its liberal philosophical context. 2021] 2021] discovers a love of ice hockey too late, he will never have enough time to become skilled enough to play inwould it right; the positive a as National future open an Hockey to right the League. interprets one This if problematic issue FUTURE OPEN AN & VACCINATION is particularly entail, to return to the example, previous that a haschild to entitlement some play some to honor failed have his parents and that if so hockey he wishes, professional of danger the illustrates objection This outcome. that ensure to failing by obligation future. open an to right of Feinberg’s reading broad overly an taking 227 LCB_25_1_Art_5_Feldman (Do Not Delete) 3/3/2021 8:27 PM On a most basic level, liberalism involves a belief in the fundamental autonomy rights of persons persons of rights autonomy fundamental the in belief a involves liberalism level, basic most a On qua core of liberalism, is with Locke.” express express or normalize the of relationship the individual to the Jewish community. law a provides different focus. When the Jewish child moves into adulthood by becoming a andthought,liberal of tradition this of version a is politics American contemporary of philosophy most of our debates proceed within its terms.”); Thomas Nagel, without granting additional without rights, granting additional he he or she gains no greater rights than before but instead assumption of responsibility assumes is what separates more the full member of the obligations, community from the and child this or the outsider. This conception provides a richer understanding of the relationship between the individual and the community than C Y 43059-lcb_25-1 Sheet No. 122 Side A 03/17/2021 10:17:28 A 03/17/2021 122 Side Sheet No. 43059-lcb_25-1 43059-lcb_25-1 Sheet No. 122 Side B 03/17/2021 10:17:28

, , : M K C Y 401, 401, AWLS R USTICE J RACTICAL them- P OHN J

TILITARIANS justice relating to to relating justice U HADOW HADOW OF S x (2019). Thus, this RITIQUE OF HE social C

T , at 4. Opposing Rawls was was Rawls Opposing 4. at N THE , and it is within the Kantian note 107, at 341). 341). at 107, note I ANT

Id. , id. K 149–231 theory (1974). Rawls’ redistribution of the kind Rawls Rawls kind the of redistribution HILOSOPHY supra 1 (1982). Modern liberal thought P reprinted reprinted in TOPIA

U ORRESTER USTICE J F MMANUEL , a moral category given prior to the good good the to prior given category moral a , I AND AND OLITICAL , (1863), P cause of their crucial contribution to the social See right of social justice. And second, John Rawls can be ATRINA TATE which conceives the concept of the right as as right the of concept the conceives which IMITS IMITS OF S

L , dens of social cooperation. Human Dignity and Judicial Interpretation of Human Rights EMAKING OF TILITARIANISM NARCHY R A

, rights could be squared with squared be could rights , U ILL M OZICK N 3–4 (1971). Yet Rawls conceives of justice more broadly than merely IBERALISM IBERALISM AND THE note 108, at 275–76 (citing Gutmann, Gutmann, (citing 275–76 at 108, note L

, TUART S L. 655, 659–60 (2008). The precise nature of these rights is the subject of the supra OBERT USTICE L J ’ R ANDEL S IBERALISM IBERALISM AND THE NT

OHN See I L

J. presuppose any particular conception of the good; what justifies these regulative prin- regulative these justifies what good; the of conception particular any presuppose J J. Prusak,

65 (Lewis White Beck trans., Liberal Arts Press 1956) (1788). The core thesis of Kantian Kantian of thesis core The (1788). 1956) Press Arts Liberal trans., Beck White (Lewis 65 . See but rather that they conform to the concept of concept the to conform they that rather but and independent of it. of it. independent and conceptions of the good, is best arranged when it is governed by principles that do not not do that principles by governed is it when arranged best is good, the ofconceptions selves ciples above all is not that they maximize the social orwelfare otherwise promote the good, [S]ociety, being composed of of a being each with composed his own persons, and plurality [S]ociety, aims, interests, UR 116 HEORY HEORY OF T ICHAEL ICHAEL EASON

OSTWAR constituting Lockean natural rights, offering a comprehensive theory of be independently derived from those of goodness, such that rights are justified in a way that does does that way a in justified are rights that such goodness, of those from derived independently be not depend on any particular vision of the good. conception of dignity most associated closely is Kant theof idea with autonomy dignity as . . . to promoted. promoted. the assignment of rights and duties in distribution of the the basic benefits institutions and bur of society and Robert Nozick, who the also held a Kantian appropriateconception of fundamental Lockean rights but did not believe that a respect for those is is “indebted to Kant for much of its philosophical foundation,” framework that a second great ideological rift in libertarian liberal liberals philosophy between emerged. egalitarian and Kant’s conception philosophy of John Rawls, who wrote of that “[e]ach person possesses an inviolability rights founded on clearly justice underlies that even the welfare the of society as a whole egalitarian cannot override. . . . [T]he rights secured by liberalism is that: that: is liberalism good. P M A first great ideological rift in liberal philosophy, dividing utilitarian liberals and Kantian liberals (or (or liberals Kantian and liberals utilitarian dividing philosophy, liberal in rift ideological great first rather, between consequentialist and deontologistunderstood rights as foundational to liberals).morality be John Stuart Mill, a to utilitarian, justice of principles the understood Kant Immanuel contrast, In 1973). Press (Anchor 459–60 R 228 228 Feinberg’s theory of children’s rights is just one manifestation of what Amy Gut- mann terms the “liberal argument,” REVIEW LAW CLARK & LEWIS Immanuel Kant later placed dignity at the heart of his own theory of human rights, “the 25.1 [Vol. LCB_25_1_Art_5_Feldman (Do Not Delete) 3/3/2021 8:26 PM

Article can fairly make two generalizations about modern liberalism: first, theoretically speaking, speaking, theoretically first, liberalism: modern about two generalizations make fairly can Article liberalismbegeneralizedmodern Kantianhavingunderstandingacan as ofLockeanfundamental as wellrights, human conception as a Rawlsian generalized as the paradigmatic modern liberal philosopher, and this Article him byas points such. treating will make certain has proven the more influential of the two, for in recent decades “[p]hilosophical liberalism treat people with dignity is to treat them as autonomous individuals able to destiny.” Christopher choose McCrudden, their own 19 E justice justice are not subject to political bargaining or to the calculus of social interests.” became synonymous with Rawls . . . . By the late twentieth century, Anglophone political theorists theorists political Anglophone century, twentieth late the By . . . . Rawls with synonymous became operated in the shadow of justice theory.” K 43059-lcb_25-1 Sheet No. 122 Side B 03/17/2021 10:17:28 B 03/17/2021 122 Side Sheet No. 43059-lcb_25-1 43059-lcb_25-1 Sheet No. 123 Side A 03/17/2021 10:17:28 174 174 open open IBERALISM IBERALISM On the other other the On L maximally which conceives OLITICAL P

, AWLS R OHN 280, 281–82 (2011) (interpreting the “open “open the (interpreting (2011) 281–82 280, Consistent with the moderateinterpre- , and the most sensible interpretation of of interpretation sensible most the and , THICS ed by the individual’s own settled prefer- settled the individual’sown by ed E

. is to provide them with Rawlsian primary primary Rawlsian with them provide to is ED Inparticular, Gutmann argues, Feinberg’s “open M Parental Procreative Obligation and the Categorisation of

, 37 J. 37 ,

note 107, at 340–41. 340–41. at 107, note note 10, at 98. 98. at 10, note note 101, at 525. 525. at 101, note note 108, at 272 (quoting J (quoting 272 at 108, note note 115, at 62. 62. at 115, note 249. at 115, note supra supra supra supra supra supra , Gabriel T. Bosslet, , , Indeed, solving the problem described above involving the limited at 277 (“For Gutmann, what is really at stake is justice to children; her basic theory theory basic her children; to justice is stake at really is what Gutmann, (“For 277 at Theseparallels do notseem coincidental giventhe strongly liberal charac- AWLS AWLS Id. R See, e.g. R Feinberg, Gutmann, Millum, Prusak, But the question still is remains: the right to an open future positive or nega- Paternalistic decisions are to be guid be to are decisions Paternalistic of knowledge a failing or irrational, not are they as insofar interests and ences person,a about lessand less know we Asprimarygoods. of theory the bythese, we [should] act for ashim act forwould we the ourselves from of standpoint the original position. 118 119 120 121 122 123 124 117 M K tive? The moderate interpretation, Millum explains, is susceptible to both interpre- both to is susceptible explains, Millum interpretation, The moderate tive? tations. If the right were negative, it “might require allowing the child to acquire foreclosed. are not that options” certain and ensuring certain skills Feinberg’s right to an open future is as a liberal theory of child rights. rights. child of theory liberal as a is future an open right to Feinberg’s ter of Feinberg’s philosophy more generally more philosophy Feinberg’s of ter future” as one where individuals can pursue “a reasonable range of life options (regarding family, family, (regarding options life of range reasonable “a can pursue where individuals one as future” plan’”). ‘life overall their forming in etc.) career, future” largely derives from John Rawls’ liberal theory of justice, of theory liberal Rawls’ John from derives largely future” goods. of justice is Rawls’s.”). FibrosisCystic of Case TheDisease: hand, if the right reasonable were a among positive, choose it to resources “would the require with her [actively] providing helping and the skills key child develop to (1996)) (“In justice as fairness the priority of right means that the principles of political justice impose limits on permissible of life; ways and hence the claims citizens make to pursue ends that transgress those limits have no weight.”). Thus, ensuring that children enjoy “certain key options” upon reaching adulthood, adulthood, reaching upon options” key “certain enjoy children that ensuring Thus, as required by Feinberg’s theory, 2021] 2021] good. the of concept the to prior FUTURE OPEN AN & VACCINATION tation, a to Rawlsian primary entitlement goods does not ensure a future, but rather a future open sufficiently to allow for a range reasonable of op- portunities. Although Feinberg does not couch his theory in Rawlsian terms, phi- 229 losophers who have interpreted Feinberg’s right to an open future have frequently done so. LCB_25_1_Art_5_Feldman (Do Not Delete) 3/3/2021 8:27 PM primary goods. As Rawls writes: writes: Rawls As goods. primary of a moral entitlement people have to “primary goods” that “normally have a use life.” in plan rational person’s a whatever knowledge of parents about their children’s future interests is precisely the aim of C Y 43059-lcb_25-1 Sheet No. 123 Side A 03/17/2021 10:17:28 A 03/17/2021 123 Side Sheet No. 43059-lcb_25-1 43059-lcb_25-1 Sheet No. 123 Side B 03/17/2021 10:17:28 M K C Y , which articu- which , Yoder Feinberg writes that, To support this claim, he points points he this claim, To support : . and maythis character inconsistent be Yoder parental rights cases. note 23, at 1453 (“In a direct departure from existing from departure direct a (“In 1453 at 23, note . . constitutional interpretations that convey positive . 25, 26 (2014) (“Negative liberty, as important as it is, it as important liberty, as (“Negative 25, .26(2014) supra supra parens patriae ROBS P

. recognizing the state’s interest not onlyin the “immediate ONTEMP As this Article will explain in Part IV, if children have a right right a have children if IV, Part in explain will Article this As note 10, at 100–02. 100–02. at 10, note C

Prince &

supra , Dailey & Rosenbury,& Dailey , , 77 L. 77 , at 102 (citing Prince v. Massachusetts,Prince 102158,321168 (citing U.S.(1944)). at Feinberg also echoes Justice White’s concurrence in concurrence White’s Justice echoes also Feinberg

Perhaps an even more supportive passage unquoted by Feinberg is found found is Feinberg by unquoted passage supportive more even an Perhaps Id. e.g. See, Feinberg, Id. v. Yoder, Wisconsin 240 J., (White, concurring). 205, (1972) 406 U.S. Neoliberalism in U.S. Family Law: Negative Liberty and Laissez-Faire Markets in the It is the future of the student . . . that is imperiled by today’s parent decision.keeps his child out If of school a beyond the grade school, then the child diversity of world amazing and new the into entry from barred forever be will thatwe have today.The child maydecide that that is the preferredcourse, or There There are, of course, objections one can raise against a liberal conception of 125 126 127 128 129 constitutional law, the new law of the children child to certain wouldgoods and recognizeservices essential children’s to furthering affirmative their broader rights interests.”); Anne as L.

230 230 range” of options. REVIEW LAW CLARK & LEWIS 25.1 [Vol. LCB_25_1_Art_5_Feldman (Do Not Delete) 3/3/2021 8:26 PM in Justice Douglas’ dissenting opinion in in opinion dissenting Douglas’ in Justice to an open future, they are entitled to greater access to vaccination the nature regardless or although whether understanding Thus, negative. this positive right is of its Article contours, this is crucial to delineating of or this as negative right positive need not resolve this question to show that children are entitled to at least some have. currently they than vaccination to access greater lates the state’s interest “not only in seeking to develop the latent talents of its talents chil- latent “not to develop only in the seeking interest lates state’s the choose, later may they that style life the for them prepare to seeking in also but dren or at least to provide them with an option other than the life they have led in the past.” health and welfare of children but also with ‘the healthy, well-rounded growth of to the language in language the to is insufficient for justice. We can imagine . For its limited purposes, this Article will merely assume that children have a right to an open future and consider whether this right requires greater assurance of im- hos- quite be actually could law constitutional American Nevertheless, munization. an to Feinberg’s right to future. pitable To start, areopen similar- interesting there ities between Feinberg’s theory and the views numerous Supreme Court justices of in opinions have expressed dissenting when C–rights-in-trust conflict with parental rights, the state must defend chil- with adopting a Rawlsian notion of primary goods in delineating children’s rights. rights. children’s in goods a delineating of notion with primary Rawlsian adopting Alstott, Alstott, State Minimal rights, and against Feinberg’s conception in particular. American constitutional law law constitutional American particular. in conception Feinberg’s against and rights, has it, ato character libertarian distinctly racy].’” young young people into full maturity as citizens with all that implies [in a democ- dren’s future autonomy rights as autonomy future dren’s rights.”). rights.”). 43059-lcb_25-1 Sheet No. 123 Side B 03/17/2021 10:17:28 B 03/17/2021 123 Side Sheet No. 43059-lcb_25-1 43059-lcb_25-1 Sheet No. 124 Side A 03/17/2021 10:17:28

See supra supra , To say say To Theliber- ANDEL 56–68 (1980). Slaughter-House EVIEW R , “[t]he version of liberalism UDICIAL but it is hard to deny that a J reading fundamental moral rights into

They leave unclear whether this this whether unclear leave They 149 (1977). Regarding Rawls, Dworkin Id. re autonomy rights as a fundamental HEORY OF OF HEORY T

A ERIOUSLY

the moral energies of a vital democratic life” and : S lly lly to judges IGHTS IGHTS ISTRUST R Democracy’s Democracy’s Discontent D AKING harm when limited in theirfuture abilities to, asDouglas T

, Unsurprisingly, the Fourteenth Amendment’s Due Process Process Due Amendment’s Fourteenth the Unsurprisingly, note 31, at 28–30.

present WORKIN EMOCRACY AND supra supra D D

, , LY E at 245 (Douglas, J., dissenting). dissenting). J., (Douglas, 245 at

ONALD ANDEL It is worth distinguishing between two different ways people commonly use the term Id. Id. S 83 Cases, dissenting). Slaughter-House U.S. J., 105 (16 Wall.) 36,(Field, (1872) R Michael J. Sandel laments the shift in constitutional law from a civic republicanism that ART ART H Nevertheless, a rights-based reading would not be wholly out-of-place in a con- a in out-of-place wholly be not would reading rights-based a Nevertheless, he may rebel. may he 136 130 131 132 133 134 135 M K OHN alization alization of law constitutional has its discontents, that puts the right before the good finds its clearest expression in constitutional law,” law,” constitutional in expression clearest its finds good the before right the puts that drafters. the that Constitution’s guided from the republicanism acivic deviation stitutional jurisprudence that has increasingly reflected a liberal conception of rights. rights. of conception liberal a reflected increasingly has that jurisprudence stitutional As Michael J. Sandel details in This evolution largely tracked the substantive due process revolution, following the the following revolution, process due substantive the tracked largely evolution This of ratification an which, amendment to again quote Field’s Justice not confer, the law does those moral rights “which protect to intended dissent, was recognizes.” only but character. liberal a with distinctly jurisprudence to a fundamental-rights Clause led as of justice Rawls’ theory invoke even far went as so to Dworkin expressly Ronald theory.” moral and law constitutional of “fusion the for guide fitting a note 31, at 24. John Hart Ely objects genera the Constitution, and more specifically to judges consulting moral philosophy to that end. J “interest” in this context, one Colloquially,interestpersonhasan somethinga in them.good for thatis Thisinclude can things pertinent to processduereceive goodness tointerest both my in is example, it For not. is one things andentitled tois one and the other pertinent of law to and to win the lottery; I have a right justice. to the former, but no right to the latter. However, in the legal context, the term “interest” is used to denote a claim of legal right. Lawyers will often nized the interest in equitable child’s her futu liberty protected by the Fourteenth Amendment’s Due Process Clause. writing not, does that republic” “procedural liberal a to good the of conception certain a embodies liberal conception of rights animates substantive due process jurisprudence. At least least At jurisprudence. process due substantive animates rights of conception liberal the recog- might that have court a is it far-fetched counterfactual not conceptually, 2021] 2021] The statements of both Justice White and Justice support Douglas the notion that FUTURE OPEN AN & VACCINATION a done are children phrases it, “be masters of their own destiny.” 231 LCB_25_1_Art_5_Feldman (Do Not Delete) 3/3/2021 8:27 PM

writes “Professor Rawls of Harvard . . . has published an abstract and complex book about justice justice about book complex and abstract an published has . . . Harvard of Rawls “Professor writes harm is due to a rights violation or merely an interests violation, though the latter language. such given likely more seems interpretation that “[a] procedural republic cannot contain S self-rule.”in share to citizens equip that character of qualities the cultivate to “fails which no constitutional lawyer will be able to ignore.” ignore.” to able be will lawyer constitutional no which C Y 43059-lcb_25-1 Sheet No. 124 Side A 03/17/2021 10:17:28 A 03/17/2021 124 Side Sheet No. 43059-lcb_25-1 43059-lcb_25-1 Sheet No. 124 Side B 03/17/2021 10:17:28

. M K A C Y L.J.1,

. , 81 V 81 , EV D

. 1,5 (2015). &

. EV TS R

R

. L. TS TS Third, that the law law the that Third, UM R

H . Parentsas Fiduciaries UM ALE H

hful guidance of a parent to . Article uses the colloquial meaning meaning colloquial the uses Article , 7 Y OLUM such as political ideology or reli- or ideology political as such interest to denote an interest’s rights-based parents quasi-property rights in other other in rights quasi-property parents , 47 C , 47

property As Tamar Ezer writes: writes: Ezer Tamar As note 55, note 226–27). at supra supra In truth, given the liberal focus on rational independ- rational on focus liberal the given truth, In note 1, at 792. interest or a a interestor any consent from the child herself. As Samantha Godwin Godwin As Samantha herself. child the from consent any Against Parental Rights Parental Against supra supra liberty the claim’s right-based nature. This nature. right-based claim’s the A Positive Right to Protection for Children for Protection to Right Positive A Second, that parental rights “may be viewed as a form of reciprocity reciprocity of form a as viewed be “may rights parental that Second, And fourth, that children need the watc the need children that fourth, And at 792–93 (citing Elizabeth S. Scott & Robert E. Scott, Scott, E. & Robert Scott Elizabeth S. 792–93(citing at 793–94. at Weithorn, (citing 794 at Weithorn & Reiss, Id. Id. Id. Godwin, Samantha Ezer, Tamar . 2401, 2440 (1995)). The second justification—parental rights as reciprocity for satisfying parental One also finds that a liberal theory of child rights is largely (though not en- 137 138 139 140 141 142 EV R

human beings in a manner “incompatible with liberal and egalitarian commitments commitments egalitarian and liberal with “incompatible manner a in beings human persons.” of equality the to argues, treatment of this kind essentially gives gives essentially kind this of treatment argues, duties—is admittedly hard to square with a liberal conception of human rights. The The rights. human of conception liberal a with square to hard admittedly duties—is state may well have an interest in incentivizing child-rearing, but granting parents powers over children to promote these ends is a two-way transaction between par- lacking state the ents and properly develop into functioning adults. functioning into develop properly

L. 2 (2004). Ezer writes that Locke, for example, believed that, “[a]s children were not rational specify that something is a is something thatspecify 232 232 this is not to say that right Feinberg’s to an open future is in fact protected by this applying that say to only is it rather, it; by protected be should it that even or clause, a of theory liberal does moral rights not of a require our law’s radical re-imagining underpinnings. conceptual REVIEW LAW CLARK & LEWIS 25.1 [Vol. LCB_25_1_Art_5_Feldman (Do Not Delete) 3/3/2021 8:26 PM for satisfying the legally enforceable duties of parenthood.” ent actors, the founders of liberal rights theory perceived children as altogether out- altogether as children perceived theory rights liberal of founders the actors, ent philosophies. of their scope side the presumes that parents act in their children’s best interests, and that there is an “iden- an is there that and interests, best children’s their in act parents that presumes deci- the render to parent the allows that child and parent between interests” of tity sion that the child would have made had the child been mature enough to decide for herself. interest in her future autonomy rights.” This usage aims to describe rights-in-trust as one would describe a beneficiary’s interest in entitlements. a legal trust, which is a legal right bestowing certain without needing to clarify clarify to needing without of “interest” to denote something that is good for somebody but not necessarily something she is entitled to, thus distinguishing it from a “right” that necessarily gives its “equitablechild’s holder a an as future entitlement. open an to right the describing text above the in is exception sole The nature, but not always. It is common, for example, to discuss present or future interests in property property in interests future or present discuss to example, for common, is It always. not but nature, tirely) consistent with the four policy justifications commonly offered in support of of support in offered commonly justifications policy four the with consistent tirely) the existence of parental rights: first, that vesting against discretion governmental overreaching in into parents family protects matters and fosters pluralism by guarding the free exercise of substantive liberties belief. gious 43059-lcb_25-1 Sheet No. 124 Side B 03/17/2021 10:17:28 B 03/17/2021 124 Side Sheet No. 43059-lcb_25-1 43059-lcb_25-1 Sheet No. 125 Side A 03/17/2021 10:17:28

. , WO WO NT T O

, ICHARD ICHARD EGAL EGAL AND L OCKE OODHOUSE L 85, 89 (Georg , 22 U.W. 22 , OHN 18–19 (1974); R 44–53 (2019). 44–53 (2019). Without exploring this this exploring Without (citing J IGNITY IGNITY IN THE D Id. The Concept of Human in Dignity ONSTITUTIONALISM C

HILDHOOD C EVELOPMENT US D , both autonomy and dignity are deemed See generally (Salman Khurshid et al. eds., 2018). Legal Legal 2018). eds., al. et Khurshid (Salman supra ued to play an important role in the human rights human the in role important an play to ued IGHT TO TO IGHT R SCAPE FROM S E ’ WORKIN

UROPEAN AND Human Dignity as a ConstitutionalValue a as DignityHuman , D E

at 305 (Peter Laslett ed., Cambridge Univ. Press 1988) in HILD

OLT , C H 57,

HE § ONALD ONALD . 1367, 1392that claim equalityoverarching is (“My must(2020) T R

OHN , EV J R my.”). How much dignity a non-autonomous person has is outsidethisnon-autonomous is a has persondignity muchHow my.”).

G.P. Fletcher, L. See ELEG 26–27 (1974). For a comprehensive discussion of the child liberation Children’s Equality Rights: Every Child’s Right to Develop to Their Full See P note 142, at 1. 1. at 142, note OAM OVERNMENT G N ARDOZO supra HILOSOPHY HILOSOPHY OF see P IRTHRIGHTS B To be fair to Godwin, there is something undeniably illiberal about the the about illiberal undeniably something is there Godwin, to fair be To

As As mentioned briefly in footnote 115, Ezer, Ezer, Child liberationists John Holt and Richard Farson both advocated for children having , 41 C 41 , , . 171, 174–78 (1984). Dignity has contin has Dignity (1984). 174–78 171, . Children Children are an anomaly in the liberal legal order. Conceptualizations that work in other areas of human rights break down in the context of children. Children defy the conventional view of rights as implying fully rational, au- tonomous individualswho can exercise free choice and require freedom from interference. governmental note 25, at 35 (“Recognition of human dignity calls on us to acknowledge that the child, child, the that acknowledge to us on calls dignity human of (“Recognition 35 at 25, note 145 143 144 EV Nancy E. Dowd, R M K

REATISES OF OLITICAL ARSON upra issue any further, it suffices to say that the liberality of this justification is question- is justification this of liberality the that say to suffices it further, issue any able. Nolte ed., 2005). Even more specifically, Kant understood moral rights as grounded in what is distinctly human, i.e. reason, which is essential to engaging in morally significant conduct; it is autonomoushimentitlesperson’s the discerns nature,Kant whichturn capacitythat in this from (1690)). offends offends the of dignity fundamental a person when “owned” by another in a prop- erty-like manner, rather than simply being “controlled.” state rewarding parents with rights over another human being for their performance performance their for being human another over rights with parents rewarding state it that is reason the illiberal, is treatment this if But, activity. important socially a of P scholars have also looked to dignity as a fundamental aspect of their own theories of child rights. See equal equal rights to adults. F movement, Giovanni As interrelated. are two but the rights, human of conception the fundamental liberal to respect deserves such as whobeing, autonomous morally “a as man viewed Kant explains,Bognetti endscontingent to means a only as law, the especiallyby and general in treated,be never must and but always (also) as an end unto himself.” Giovanni Bognetti, European and US Constitutionalism L. individuals who could freely give their consent to civil government, children could not be parties to the social contract or rights-holding citizens T of the state.” 2021] 2021] FUTURE OPEN AN & VACCINATION Despite the views of some child liberationists, it is generally uncontroversial that children are treated paternalistically on account of their immaturity and depend- 233 ency. LCB_25_1_Art_5_Feldman (Do Not Delete) 3/3/2021 8:27 PM

s rightsproperty in a human child, independent of the child’s actual autonomy. theories of contemporary liberal philosophers. to dignified treatment. dignified to Capacity be defined as including equality, equity, and dignity as W integral components.”); despite his or her lack of present autonomy, does have rights based on present humanity as well autono for potential the as Article’s scope. But, at a glance, there does seem to be a serious dignitary issue in giving quasi- C Y 43059-lcb_25-1 Sheet No. 125 Side A 03/17/2021 10:17:28 A 03/17/2021 125 Side Sheet No. 43059-lcb_25-1 43059-lcb_25-1 Sheet No. 125 Side B 03/17/2021 10:17:28 M K C Y Of note note ASTINGS supra 516, 521 521 516, 573, 573 573 573,

, , H THICS APERS AWLS P There exists an an exists There thus reflects, accord- , 105 E This, too, finds a corol- a finds too, This, OLLECTED Yoder ocess,” or to fulfill “the so- fulfill or to ocess,” C in , What

169, 169, 176 (2019) (citing R

, the Court ruled in favor of the Amish Amish the of favor in ruled Court the , . EV R

AsWilliam Galston explains, “the decision Yoder L. Two Two Concepts of Liberalism

.

IN C

Sticking Points: Epistemic Pluralism in Legal Challenges to igently in our democratic pr our democratic in igently asonable comprehensive doctrines that support “reason- support that doctrines comprehensive asonable ourth justifications—“identity of interests” and the need need the and interests” of justifications—“identity ourth , 88 U. Genetic Genetic Dilemmas and the Child’s Right to an Open Future The Idea of Public Reason Revisited note 28, at991. , AWLS supra supra R Theparadoxical consequence of this conflictis that, ifactively promot- (quoting William A. Galston, Galston, A. William (quoting 10–11. at Mar.–Apr. 1997, at7, 10.

OHN ., Id. Id. J James R. Steiner-Dillon, v. Yoder,Wisconsin 225 205, 406(1972). U.S. Dailey, Dena Dena S. Davis, EP As for the third and f and third the for As In contrast, the other three justifications are manifestly consistent with a liberal liberal a with consistent manifestly are justifications three other the contrast, In R

147 148 149 150 151 152 146 . TR course, there are limits to the pluralism of views a liberal society is willing to accept. accept. to willing is society liberal a views of pluralism the to limits are there course, To use Rawls again as the liberal paradigmatic theorist, Rawls maintained that “a basic feature of democracy is the fact of reasonable pluralism—the fact that a plu- rality of conflicting reasonable comprehensive doctrines, religious, philosophical, institutions.” free of culture its of result normal the is moral, and ing the greatest number of choices for the greatest number of individuals requires cease will Amish becoming Amish, the like communities” “narrow-choice repressing to be a possible choice and the overall number of choices will be limited.

C 2001). ed., Freeman (Samuel Mandatory Vaccination Policies 234 234 REVIEW LAW CLARK & LEWIS 25.1 [Vol. LCB_25_1_Art_5_Feldman (Do Not Delete) 3/3/2021 8:26 PM lary in constitutional jurisprudence. In jurisprudence. constitutional in lary “par- to education school high a need not did Amish the that observing after parents intell and effectively ticipate citizenship.” of responsibilities political and cial overlapping consensus of re of consensus overlapping mat- and essentials” “constitutional those involve all that justice of conceptions able” democracy. liberal to fundamental justice” ters “basic of for parental supervision to help children develop properly—both empower parents parents empower properly—both develop children help to supervision parental for (1995)). 227). 214, at 117, conception conception of children as right-holders. Although the first justification—that pa- ing to Anne Dailey, is how the doctrine of family privacy “serves a political function function political a “serves privacy family of doctrine the how is Dailey, Anne to ing and of liberty individuals in developing in the sustaining constitutional furthering itself.” state democratic liberal the to throw state power behind the promotion of individual autonomy can weaken or or weaken can autonomy individual of promotion the behind power to throw state undermine individuals and groups that do not and cannot organize their affairs in accordance with that principle without undermining the deepest sources of their identity.” rental rights promote pluralism—may be vulnerable to the same criticisms as the second justification, pluralism holds a privileged com- dual position its between liberalism as in conflict” an“deep a is There importantright. own its in value liberal diversity. and autonomy to mitments 43059-lcb_25-1 Sheet No. 125 Side B 03/17/2021 10:17:28 B 03/17/2021 125 Side Sheet No. 43059-lcb_25-1 43059-lcb_25-1 Sheet No. 126 Side A 03/17/2021 10:17:28 This This that the the that Parham note55, at226–28). supra supra The point of this discussion discussion this of point The ental ental control the falters, State must play its part sm. But one could also interpret this justifica- to the end that this protects the autonomy rights of of rights autonomy the protects this that end the to When the interests of thechild and the parents note 141, at 26. 26. at 141, note note 1, at 905 (citing Weithorn, Weithorn, (citing 9051, at note note 1, at 794. However, Samantha Godwin has argued that uld interpret this as a purely utilitarian consideration, consideration, utilitarian purely a as this interpret uld note note 1, at 794. The Supreme Court noted in . It is in this way that Feinberg justifies allowing parents parents allowing justifies Feinberg that way this in is It . supra supra supra to ensure the child’s best interests are protected. are interests best child’s the ensure to supra supra supra supra Thus, “to the extent that there is evidence that the interests note 115, at 209. 209. at 115, note supra

”). , , 431119 U.S.(1977)). parens patriae Schall v. Martin, 467 U.S. 253, 265 (1984) (noting that children are “assumed to be be to children“assumed that are (noting 253, 265 (1984) 467 U.S. v. Schall Martin, Weithorn & Reiss, AWLS Weithorn & Reiss, See R See Weithorn & Reiss, vacated With respect to the proper-development justification, its liberality depends on on depends liberality its justification, proper-development the to respect With 154 155 156 157 153 parens patriae parens M K law law only presumes that parents act in their children’s best interests and recognized that parents’ some interests “may at times be acting against the interests of their children.” Parham v. J.R., 422 U.S. 584, 602 (1979) (citing Bartley v. Kremens, 402 F. Supp. 1039, 1047–48 (E.D. Pa. 1975), of a parent and minor are not aligned, the of appropriateness relying on parental questionable.” is decisionmaking how one interprets it. One co it. interprets how one an of justification inthis cite to support they do seem Reiss when and as Weithorn development cognitive undergoing as children discusses that article Weithorn earlier that is and to highly exposures. sensitive influences “highly questionable.” Godwin, the notion that parents have a privileged understanding of their children’s individual interest is kind of paternalism is exactly what liberal theory calls for; as Rawls writes, parents have the right and responsibility to “choose for others as we have reason to believe they would choose for themselves if they were at the age of reason and deciding rationally.” 2021] 2021] to make decisions for their children only insofar as the children are incapable of making informed decisions on their own and both place the interests and rights of the child FUTURE in OPEN AN a & privileged VACCINATION position relative to those of the parents. As Weithorn and Reiss explain, “[e]mbedded in the presumption that parents act in their children’s best interests is the notion that the interests of parents and children typically align or are coextensive.” 235 LCB_25_1_Art_5_Feldman (Do Not Delete) 3/3/2021 8:27 PM sounds in “best-interests” utilitariani seems to be that both children and society are better off when children are exposed exposed are children are better when off seems to be that society both and children to healthy influences and guarded from unhealthy ones as they develop, which diverge diverge and the parents threaten to act against the child’s best interests, the state steps in as

as subject to the control of their parents, and if par tion as Feinberg does: parents may control the upbringing of their children because because children their of upbringing the control may parents does: Feinberg as tion development healthy promotes this adults future as children these he state, the and parents both by paternalism paternalistically: children their treat to explains, is wholly proper where a child “cannot know his own [and] . . . interest C Y 43059-lcb_25-1 Sheet No. 126 Side A 03/17/2021 10:17:28 A 03/17/2021 126 Side Sheet No. 43059-lcb_25-1 43059-lcb_25-1 Sheet No. 126 Side B 03/17/2021 10:17:28 M K C Y itdoes For Fein-

law; it is commonplace for legislative legislative for commonplace is it law; that children havean affirmative right to the constitutional

note 10, at 113. 113. at 10, note note 145, at 1371–72. 1371–72. at 145, note supra supra at 97–98,at 107. Children’s Equality Rights Equality Children’s See id. Dowd, rights: equality child recognizing for reasons discrete four identifies Dowd Feinberg, Lastly, Lastly, it is worth noting that this Article’s application of a liberal theory of necessary necessary to maximize their developmental capacity and opportunity. The averagereach supportto adequate of levelminimumor a to not is rightchild’s capacity, but rather to a fair opportunity to reach their potential.full developmentalThis is an individualized right . . . to an equal chance in thresh- the life:to capacity developmental maximize to childhood during full support old of adulthood. Analyzing a potential entitlement of children to greater access to vaccines need need vaccines to access greater to children of entitlement potential a Analyzing First, [children] are unique because they are dependent on developmental their adults ensure to resources social for on claim affirmative an them their give needs Their development. success. Second, they are vulnerable because of their lack of development, vulnerability that changesover timeand must balancedbe with their evolving capacities. Itan essentialis pos- evolu- their for and being their for foundation the is that development of itive characteristic tion. Third, they are valued and valuable because they are children. Their perspectives and understandings are unique; our they are are they not Finally, simply valuable. becoming and precious adults, is or humanity mini Their adults; right. own they their are in themselves, 159 160 161 158 bodies, both state and federal, to create positive statutory rights. In this light, a legal legal a light, this In rights. statutory positive create to federal, and state both bodies, pos- of realm the within well is future an open to right a child’s recognizing reform sibility. rights to the area of child law is more consistent with contemporary child-rights scholarship than one might initially believe. Much of this scholarship is even more conception a only not embodies it that sense the in theory Feinberg’s than Rawlsian of human autonomy-based inviolable rights but also those reciprocity-based rights that Rawls understands as stemming from a fair system of cooperation. Nancy berg, the “best interests” of a child are not justified on their own, but by the child’s child’s the by but own, their on justified not are child a of interests” “best the berg, adult. future and person a dependent rights as

Although Dowd’s conception of child rights is far from Lockean in nature, in Lockean from far is rights child of conception Dowd’s Although 236 236 judgment.” uninformed and immature own his from protected be must REVIEW LAW CLARK & LEWIS 25.1 [Vol. LCB_25_1_Art_5_Feldman (Do Not Delete) 3/3/2021 8:26 PM She writes in writes She support Dowd, Dowd, for example, maintains that children are extent. potential entitled fullest not the to just develop to to entitled are a rather but reasonable options, life of range not necessarily be done in terms of Feinberg’s right to an open future, but doing so so doing but future, open an to right of Feinberg’s terms in done be necessarily not is fitting because there is a meaningful degree of between compatibility Feinberg’s theory and how children’s rights are currently understood under the law. Indeed, having a possible negative interpretation makes the right to an open future more compatible with a libertarian jurisprudence than many liberal theories, and this is just with respect to American 43059-lcb_25-1 Sheet No. 126 Side B 03/17/2021 10:17:28 B 03/17/2021 126 Side Sheet No. 43059-lcb_25-1 43059-lcb_25-1 Sheet No. 127 Side A 03/17/2021 10:17:28 Thus, Thus, social

20 (2016). 20 (2016). Dowd’s concern concern Dowd’s system system of EFORM R 68–101 (1993), than to a AND AND , OMINION ISSENT D D

S , ’ rpretations.thirdHer isreasonchildrenthat , or to Ronald Dworkin’s similar notion of IFE to reach their full developmental poten- developmental full their reach to can can be as characterized and, utilitarian more L

, supra NJUSTICE I

: WORKIN between persons who regard each other as as other each regard who persons between D HETTOS G bare necessities for bare survival but necessities also, more a generally, successful ONALD adulthood. adulthood. Their future role makes their development and their ARK reciprocity and took an impartial view of what the distribution of of distribution the what of view impartial an took and D

, HELBY S

at 36 (“[O]ne should be able to expect that one’s income and wealth, over a lifetime, lifetime, a wealth, over and income one’s that expect to be able should (“[O]ne 36 at

OMMIE T Id. Id. tice is a matter of equals. cooperation cooperation over time benefits and burdens of in participating this scheme ought to be, we could arrive at conclusions about what social justice requires that warrant our ra- tional assent. The idea of society as a fair system of cooperation jus- Social to be notion arrangements. used in of the institutional evaluation is a moral tice is constituted by the legitimate jus- way, this in about Thought claims arrangement. social overall fair a within have and responsibilities individuals With respect to what children, social justice is requires distinct from what the Rawls has suggested that if we were to conceive of society as a future; they join society and democracy, their neighborhoods and communities, as full social social full as communities, and neighborhoods their democracy, and society join they future; citizens when they reach equality socially essential. 162 163 164 at 1416. Her first reason is similar to the “dependency rights” Feinberg identifies but broader broader but identifies Feinberg rights” “dependency the to is similar reason first Her 1416. at M K sanctity, see, for example, R children have to exist and develop. The force underlying this reason notion is of more dignitysimilar to discussed Kant’s in footnote 145, egalitarian concept of justice as fairness. Her second reason could be read similarly to the right to to right the to similarly be read could reason second Her fairness. as justice of concept egalitarian an open future, identifying the fact that successful development in the future requires adequate support in the present to extend the child’s claim of the former to the latter as well. But this is susceptibleLockean,to utilitarian, egalitarian or inte are intrinsically valuable, and their development is intrinsically good, independent of any rights development into adulthood. As explained above, this reason is better understoodbetterthroughis Rawls’reason above, this explained adulthood.developmentAs into in scope, covering not just the within liberal-egalitarian thought, two children and moti- of two ability same the same children thought, liberal-egalitarian within vation should expect to accumulate roughly the same amount of wealth over their into. or social born class they race were of what lives, regardless

Lockean autonomy right. Dowd’s fourth reason specifically, civic republican: child equality makes for better citizens who can better ensure republic. democratic the American the of welfare Id. 2021] 2021] embody the interest in fairness fundamental to Rawls’ liberal-egalitarian political explains: Shelby Tommie As philosophy. FUTURE OPEN AN & VACCINATION 237 LCB_25_1_Art_5_Feldman (Do Not Delete) 3/3/2021 8:27 PM individual autonomy autonomy individual rights of a children require: basic structure that ensures that even- might they that so know to need they what taught and for cared are “children tually become equal participants in the system of social cooperation.” opportunity “fair a children providing with tial” makes far more sense when understood as a Rawlsian right to fair equality of will be similar to that of anyone else who has similar abilities and the same willingness to develop develop to willingness same the and abilities similar has who else anyone of that to similar be will and use them, regardless of the social class one has beenborn into.”). C Y 43059-lcb_25-1 Sheet No. 127 Side A 03/17/2021 10:17:28 A 03/17/2021 127 Side Sheet No. 43059-lcb_25-1 43059-lcb_25-1 Sheet No. 127 Side B 03/17/2021 10:17:28

M K C Y The The and and USTAINABLE S as a matter of of matter a as r capacities for at 148–49; Arjun Arjun 148–49; at Id. Arjun Sengupta, Sengupta, Arjun AW AND L See

at 144–85. As he details, the 1986 1986 the details, he As 144–85. at en’s en’s needs and thei Although it is unclear whether whether it is unclear Although id.

, Peleg provides a comprehensive survey survey comprehensive a provides Peleg , NTERNATIONAL See . 179, 183 (2004). I in , TUD S

e idea of equality of opportunity. This principle . EV 341, 342–43 (Nico Schrijver & Friedl Weiss eds., D XFORD RACTICE P note 25, at 30, 35 (“Recognition of human dignity calls on us to to us on calls dignity human of (“Recognition 35 30, at 25, note , 32 O , 32 The Child’s Right to Development to Right Child’s The supra

, note 145, at 1371–72. 1371–72. at 145, note note 144, at 196. 196. at 144, note (citing G.A. Res 41/128, Declaration on the Right to Development, art. art. Development, to Right the on Declaration 41/128, Res G.A. (citing Id. RINCIPLES AND P and one can understand Peleg as doing the same. Although these these Although same. the doing as Peleg understand can one and supra supra

: , Noam Peleg offers a model of child rights that is not quite liberal but is but is of a model child rights liberal is quite that offers not Noam Peleg at 195. 195. at at 39 (“One facet of equality is th is equality of facet (“One 39 at OODHOUSE Implementing Implementing the Right to Development ELEG Id. P Id. ChapterIn of4 Dowd, Dowd, W Other scholars similarly view children’s rights as moral rights, liberal or other- or liberal rights, moral as rights children’s view similarly scholars Other 168 169 170 165 166 167 EVELOPMENT 1(2) (Dec. 4, 1986) (proclaiming that development “also implies the full realization of the right fulloversovereigntyself-determination, inalienableto peoples to which.includes oftheir. right . autonomy to equality rights for children would refocus our sights on creating an environment for for environment an creating on sights our refocus childrenwould for rights equality to autonomy of their natural achievement potential.”). children their and capacities growth for that supports seems especially important in the lives of children, who inherit at birth the inequalities that shaped that inequalities the birth at inherit who children, of lives the in important especiallyseems their parents’ lives. Applying the twin measures of childr fairness. 2004). Arjun Sengupta, the former UN independent expert on the right to development, suggests suggests development, to right the on expert independent UN former the Sengupta, Arjun 2004). that the right to development derives its moral strength from a human right to autonomy and self-actualization. Peleg appeals to international human rights law as the origin of that moral claim: the on “Under [UN Convention the Rights of already the rights Child], children’s them.” to interpret how is question the and exist, ready have or whether it merely purports to identify fundamental human interests and legally enshrine them as “human rights,” commentators clearly seem to favor the former, the UNCRC is making a metaphysical claim about moral rights that children al-

D of how the UNCRC has been interpreted over time. Declaration “defines the terms ‘human development’ and inalienable human the right by ‘right virtue of which to every human development’ person and as all peoples ‘an are participate entitled in, contribute to to, and enjoy economic, social, cultural and political development, in which all human and rights can freedoms fundamental be fully realized.’” Sengupta, acknowledge that the child, despite his or her lack of present autonomy, does have rights based on present humanityas well as thepotential for autonomy.”). 238 238 right. autonomy-based Lockean as a than opportunity REVIEW LAW CLARK & LEWIS and human rights.” children to regard claim with a moral on “based nonetheless 25.1 [Vol. LCB_25_1_Art_5_Feldman (Do Not Delete) 3/3/2021 8:26 PM moral accounts have no clear corollary in liberal philosophy, they have humans similarlythat rights fundamental make those about claims metaphysical wise. wise. Barbara Bennett Woodhouse offers an “ecogenerism” model of rights that, like Dowd’s finds model, a liberal in both grounding autonomy children’s all their natural wealth and resources”)). This has an undeniably Lockean ring to it, but the right than rights moral fundamental of picture complex more a is what on rest also may development to be understood could to development right the that claims also Sengupta envisioned. Locke what as a vector by which humans can enjoy all of their other natural rights. Human Right to Development 43059-lcb_25-1 Sheet No. 127 Side B 03/17/2021 10:17:28 B 03/17/2021 127 Side Sheet No. 43059-lcb_25-1 43059-lcb_25-1 Sheet No. 128 Side A 03/17/2021 10:17:28 at1392–94. autonomy, , rather than id. , One couldalso of children and and children of Thus, Dowd’s, Dowd’s, Thus, present ex ante See,e.g. Conceptualizing Legal at 1388–90. 1388–90. at moral moral rights Conceptualizing Legal Childhood in Id. But specifics aside, applying a Indeed, Dailey and Rosenbury Rosenbury and Dailey Indeed, aditional “best interests” approach, in inbecoming futureadults”) (emphasis an moral rights. rights. moral an interest (2020). To the extent the authors discuss child discuss authors the extent the To (2020).

, Clare Huntington and Elizabeth S. Scott 1371

ch from the tr . EV R al rights rather th rather rights al

note 23, at 1478. The authors identify five interests as as interests five identify authors The 1478. at 23, note L.

. In this way, Feinberg’s right to an open future is at ICH supra sts in (1) parental and nonparental relationships; (2) exposure to as Peleg has independently recognized. independently has Peleg as , 118 M 118 , note 144, at 195 (“Dailey and Rosenbury identify children’s interests and and interests children’s identify Rosenbury and (“Dailey 195 at 144, note Clare Huntington & Elizabeth S. Scott, at 1481 (discussing children’s “ of children and arguing that the law should promote those interests interests those promote should law the that arguing and children of id.

supra ,

, id.

. generally at 51. 51. at

. at 50–52. 50–52. at . See ELEG interests Dailey Dailey & Rosenbury, e.g.See, P Id Id. See Despite Despite its substantial similarities to liberal philosophy and the rights-based To be sure, not all scholars have embraced a liberal conception of child rights, of rights, child a conception liberal embraced scholars have all not sure, be To 172 173 174 175 176 171 M K that the former aims to promote child wellbeing through regulation offer a “Child Wellbeing” framework for developing child law that relies on welfare welfare on relies that law child developing for framework Wellbeing” “Child a offer interests. children’s advance to rights human than rather concerns intervening in family disputes once issues have already arisen. added). characterize Anne Dailey and Laura Rosenbury’s “new law of the child” in a similar similar a in child” the of law “new Rosenbury’s Laura and Dailey Anne characterize cap- “best that interests” “fundamental non-right on focus proposal’s the given way, interests.”). rights, it is only regarding children’sregarding only leg is rights,it However, they also distinguish their approa either either as an important interest or fully by right. actors. As Peleg points out, Feinberg’s paternalistic attitude towards children makes makes children towards attitude paternalistic Feinberg’s out, points Peleg As actors. his theory more of a manifestation of the “human becomings” approach than the “human beings” approach. ing the ing the rights. legal with the from deviates also scholarship legal contemporary it, characterizes that approach independent rational, in interest liberal traditional the eschewing by tradition liberal view autonomy as not being a right at all but merely one interest (albeit an important important an (albeit interest one merely but all at right a being not as autonomy view odds with contemporary theories that emphasize children having having children emphasize that theories contemporary with odds

fundamental: “children’s intere new ideas; (3) expressions of identity; (4) personal integrity and privacy; and (5) participation in life.” civic 2021] 2021] fact (moral) FUTURE OPEN AN & or VACCINATION even a moral-rights-based conception of child welfare. In Childhood in the Twenty-First Century 239 LCB_25_1_Art_5_Feldman (Do Not Delete) 3/3/2021 8:27 PM the Twenty-First Century Twenty-First the ture children’s in experience the here and now.” needs and translate those into a claim for rights, which are nonetheless ‘rooted’ in children’s one) among others, Woodhouse’s, and Peleg’s models stand apart from those of Dailey, Rosenbury, Huntington, and Scott in this significant way: Dowd, Woodhouse, and Peleg ap- the in part) least by rights (at identifying child proach other the on rights; legal with rights moral those enforce should law the that arguing identify- by rights child approach Scott and Huntington, Rosenbury, Dailey, hand, C Y 43059-lcb_25-1 Sheet No. 128 Side A 03/17/2021 10:17:28 A 03/17/2021 128 Side Sheet No. 43059-lcb_25-1 43059-lcb_25-1 Sheet No. 128 Side B 03/17/2021 10:17:28 M K C Y teristic this Article shares with with shares Article this teristic dential dential foundations and should be re- permanent disability, both of which threaten threaten which of both disability, permanent mewhat out-of-step with the current debate in child rights ees of children’s Lockean autonomy rights. Furthermore, the the Furthermore, rights. autonomy Lockean children’s of ees At the same time, moral-rights-based accounts are very much much very are accounts moral-rights-based time, same the At IV. A CHILD’S RIGHT TO VACCINATION VACCINATION TO RIGHT CHILD’S A IV.

Id. All of this background is collateral to the question of whether a Feinbergian In Part III, this Article introduced Joel Feinberg’s right of a child to an open 177

240 240 charac an is essential law child to theory moral-rights scholarship. rights child today’s of much it but accessright this Article situate helps anto to future entails vaccination, open schol- rights child and law, REVIEW LAW American CLARK & LEWIS philosophy, liberal of landscape greater the in arship. This is Article so scholarship, assuming the correctness of Feinberg’s account without defending it attitude becomings” “human against fault in find those who paternalistic its would 25.1 [Vol. toward children. LCB_25_1_Art_5_Feldman (Do Not Delete) 3/3/2021 8:26 PM Rawlsian Rawlsian fairness rights. of Outside law the constitutional also academy, American of a in but human rights, negative- libertarian, more conception a liberal embodies right Feinberg’s for Although by form a account. Rawlsian rights-based called than still in vogue, especially a liberal recognition of both Lockean autonomy rights and and rights autonomy of Lockean both a liberal recognition especially still in vogue, with the liberal philosophy underlying current constitutional jurisprudence than the the than jurisprudence constitutional current underlying philosophy liberal the with Rawlsian accounts favored by some child-rights scholars. Thus, while this Article of a child to an open future, at least as interpreted by subsequent scholars, embodies embodies scholars, subsequent by interpreted as least at future, open an to child a of the of liberal notion a right human to a enjoy of range reasonable life plans which is theory Feinberg’s of justice, famous theory Rawls’ in role anplays important also at heart more libertarian than Rawlsian. To Feinberg, although children have af- firmative claims on those others claims assistance, to act developmental only upon trust other and parents right to a reasonable range of life plans may be a more limited right than the right to fair of equality In opportunity. these ways, is theory Feinberg’s more consistent offers offers a theoretical position contrary to existing constitutional law, this position is consistent with the American law’s jurispru garded as a serious critique of the law’s existing tolerance of non-medical vaccine exemptions. that this a right implies ofright access for to greater vaccination In truth, children. established is it once For obstacle. greatest its away assumed has Article this however, follows it it), interpreted has Article this (as future open an to right a has child a that that a child also has at most a positive right to vaccination, and at least a negative right not to have her parents exempt her from state-mandated vaccination. This is because of the overwhelming evidence indicating that failure to vaccinate children or death of risk high a to them exposes future. Although it provided reasons for why this theory of child rights is an attrac- an is rights child of theory this for why reasons provided it Although future. arguing of sake the for right a such have does child a that assumed merely it one, tive 43059-lcb_25-1 Sheet No. 128 Side B 03/17/2021 10:17:28 B 03/17/2021 128 Side Sheet No. 43059-lcb_25-1 43059-lcb_25-1 Sheet No. 129 Side A 03/17/2021 10:17:28

/en/. , WHO Regard- AEDIATRIC most vac- most P vaccinations - , WHO (Apr. 22, , WHO 22, (Apr. , WHO (July 17, note 2. 29 (2008). ANADIAN Are Are You at Risk?: Who and a narrow version blindness, and deaf- AIRLY , C supra supra F , ., https://www.meningitis. ., https://www.meningitis. worldwide - EEDS OUND N F

. infants ES , https://www.cedars-sinai.org/health- (“In general, young children are at the

R EALTH /2017/ INAI H S and an additional 1.5 million deaths per per deaths million 1.5 additional an and releases ENINGITIS ENINGITIS / EETING EETING EDARS EDARS M

, M : , C note 1, at 807. news /

(“Babies and veryyoung children are greatestat risk from

supra EALTH H Together We Can Close the Immunization Gap Immunization the Close We Can Together UST J mediacentre

, This immunization schedule reflects the fact that children of of children that fact the reflects schedule immunization This .int/ https://www.caringforkids.cps.ca/handouts/when-parents-choose-not-to- Mumps Mumps in Children

ANIELS More More than 140,000 Die from Measles as Cases Surge Worldwide D , , Weithorn & Reiss, www.who Recommended Child and Adolescent Immunization Schedule ://

at 810. 810. at ORMAN N 1 in 10 Infants Worldwide Did Not Receive Any Vaccinations in 2016 Okwo-Bele, Jean-Marie Risks and Not Vaccinate: to Responsibilities When Choose Parents See See, e.g. Id. See, e.g. (Aug. (Aug. 2016), Although scholarsare understandably troubled whenparents prevent mature (“Mumps usually occurs in childhood, but can occur at any age.”);

It is to appropriate apply right Feinberg’s to an open future in the childhood Norman Daniels Norman Daniels has argued that is generally health a primary good Rawlsian Y 182 183 184 185 178 179 180 181 ’ M K OC 2015), https://www.who.int/mediacentre/commentaries/vaccine-preventable-diseases/en/. https://www.who.int/mediacentre/commentaries/vaccine-preventable-diseases/en/. 2015), from-measles-as-cases-surge-worldwide vaccinate-risks-and-responsibilities. this this age are significantly more vulnerable to contracting many communicable dis- older. are who people than eases of this argument could be applied to childhood vaccination. Inability to receive vac- receive to Inability vaccination. childhood to applied be could argument this of cines limits a child’s future by subjecting her to a significant risk of death and per- manent disability. As mentioned in the Introduction, “prevents immunization be- tween 2–3 million deaths every year,” ing disability: ing disability: measles can cause permanent brain damage,

2017), https 2017), S (Dec. 5, 2019), https://www.who.int/news-room/detail/05-12-2019-more-than-140-000-die- measles infections.”); year would be prevented if all children who could receive vaccines did so. did vaccines receive could who children all if prevented be would year 2021] 2021] autonomy future child’s that with inconsistent future child’s a on limitations serious rights. If imposing a significant threat against future autonomy rights is enough to rights. those violates clearly vaccination access to inhibiting then them, violate FUTURE OPEN AN & VACCINATION vaccination context because childhood immunization generally occurs medical own their at make to incompetent therefore an and young too are age children when decisions. A look at the CDC’s 2020 recommended child immunization months schedule 18 is child a time 241 the by given be to meant are vaccines all nearly that reveals old. LCB_25_1_Art_5_Feldman (Do Not Delete) 3/3/2021 8:27 PM adolescents from receiving vaccinations against their informed desires, informed against their vaccinations from receiving adolescents org/meningitis/are-you-at-risk (last visited Feb. 23, 2021) septicaemia.”). and meningitis bacterial getting of risk highest library/diseases-and-conditions—-pediatrics/m/mumps-in-children.html (last library/diseases-and-conditions—-pediatrics/m/mumps-in-children.html visited Feb. 23, cination decisions must be made when the child is many years away from being even even being from away years many is child the when made be must decisions cination a “mature minor.” plans, life rational her realize to person a for necessary is that 2021) Is Is at Risk from and Meningitis Septicaemia? C Y 43059-lcb_25-1 Sheet No. 129 Side A 03/17/2021 10:17:28 A 03/17/2021 129 Side Sheet No. 43059-lcb_25-1 43059-lcb_25-1 Sheet No. 129 Side B 03/17/2021 10:17:28 M K C Y and and (Aug. Because chil- OALITION C note 186. , WHO (Dec. 5, 2019), 2019), 5, (Dec. WHO , supra supra CTION , A meningitis can lead to both per- both to lead can meningitis es, it is children who constitute the choose choose among a reasonable range of MMUNIZATION note 185. 185. note , I th vaccines that the child could accept if if accept could child the that th vaccines supra tonomy is undoubtedly impaired by death , polio can cause permanent paralysis, permanent cause can polio of of a rights violations; (2) parental pref- that overriding risk Whateverit means toensure that a child hasa reasonablerange of More than 140,000 Die from Measles as Cases Surge Worldwide Surge Cases as Measles from Die 140,000 than More

mumps can cause permanent deafness; See Vaccinate to Not Choose When Parents Id. Id. What If You Don’t Vaccinate Your Child? Worldwide Surge Cases as Measles from Die 140,000 than More

There are three possible objections one could raise against extending Feinberg’s Feinberg’s extending against raise could one objections possible three are There The The right to forof an open access future calls regardless to greater vaccination 186 187 188 189 190 191 erences erences undermines pluralism in a way that is itself illiberal; and (3) that it is rea- sonable to assume that children would follow even the idiosyncratic preferences of their parents if parents influence the preferences of their children. The first offers dren are particularly vulnerable to these diseas majority of those suffering from this death under children were most and worldwide, 2018 in measles of died who people 140,000 disability. For example, of the five. of age the 2020), https://www.immunize.org/catg.d/p4017.pdf. 2020),https://www.immunize.org/catg.d/p4017.pdf. pertussis (“whooping cough”) can lead to permanent brain damage. brain permanent to lead can cough”) (“whooping pertussis

cases-surge-worldwide. 242 242 ness; REVIEW LAW CLARK & LEWIS 25.1 [Vol. LCB_25_1_Art_5_Feldman (Do Not Delete) 3/3/2021 8:26 PM only some greater provision of vaccines to those children of vaccine-hesitant parents parents vaccine-hesitant of children those to vaccines of provision greater some only wi children provide to seeks state when the preclude would right negative the least, very the at But, so. do to competent were she vaccine mandates. to exemptions non-medical an to right the that (1) exemptions: non-medical prohibit to future open an to right open future does not include vaccination because it is not meant to include things one to that only expose whether or not the law recognizes positive rights. If there were a positive right to an an to right positive a were there If rights. positive recognizes law the not or whether open future that required affirmatively helping children develop their skills and providing them with the resources needed to life plans, this right would certainly entail an affirmative right to vaccination. But forbid- be would parents future, an open right to a negative only even there if were den from preventing from children receiving vaccines, and states would be forbid- differ- the effect, In exemption. an of means by so do to parents allowing from den ence between the positive and negative interpretations is that if the state does not would vaccines oppose who parents with vaccines, children provide to seek actively this why is That independently. children their vaccinate to duty affirmative no have entails future open an to right the exist, rights negative only where that claims Article future future options to pursue, this future au paralysis. or blindness, deafness, like disability permanent a by or manent manent deafness and brain damage; https://www.who.int/news-room/detail/05-12-2019-more-than-140-000-die-from-measles-as- 43059-lcb_25-1 Sheet No. 129 Side B 03/17/2021 10:17:28 B 03/17/2021 129 Side Sheet No. 43059-lcb_25-1 43059-lcb_25-1 Sheet No. 130 Side A 03/17/2021 10:17:28 when a a when suffered “an “an suffered Yoder guaranteed tonomy right to walk down a side-

properly understood to a understood have properly require- it comes to the one marginal differences note 10, at 98. 98. at 10, note —a second look reveals that even cutting off a child’s leg does not not does leg a child’s off cutting that even reveals look —a second for cases where the harm is even more contingent. For example, example, For contingent. more even is harm the where cases for supra at 99. 99. at . at 109. 109. at . This poses an issue for the argument that vaccination is required for an an for required is vaccination that argument the for issue an poses This a fortiori Feinberg, Id. Id Feinberg himself seems aware that his philosophical conception of the right to to right of the conception philosophical that his aware seems himself Feinberg If Feinberg’s right to an If open is future Feinberg’s First, one might argue that the right to an open future is not meant to include include to meant not is future open an to right the that argue might one First, 192 193 194 M K kinds of opportunities and being unable to secure them because of the parental de- of the parental because to secure them unable being and of kinds opportunities high school. to the child send to cision not Feinberg maintains that the fourteen-year-old Amish child in invasion of his when rights-in-trust” his parents withdrew him from school, even though the harms of not having the opportunity to work as a outside professional those desiring both self future child’s the on dependent are community Amish the of open open future because the harms of going unvaccinated are contingent rather than necessary. The “harm” of not being vaccinated is having a greater chance of con- which diseases, may tracting or communicable may not into translate actual death or disability. Thus, violation of future autonomy rights is not exclude to seem would theory Feinberg’s terms, own its By unvaccinated. goes child kind. any of vaccination to a right necessarily deprive him of the ability to walk forever. One could say, for example, that the child may still to his be able exercise au walk if he is enough fortunate to have an limb. effective prosthetic This reasoning applies an open future a applies bit bluntly when 2021] 2021] the most potent challenge of the three because, if accurate, it highlights a serious conceptual issue plaguing Feinberg’s theory However, generally. none of these ob- jections ultimately FUTURE succeed OPEN AN in & VACCINATION defeating the claim that children have some right to greater protection of their access to vaccines through Feinberg’s right to an open theory. liberal similar a through or future 1 Objection A. 243 LCB_25_1_Art_5_Feldman (Do Not Delete) 3/3/2021 8:27 PM

in the paradigmatic case Feinberg provides to illustrate his right to an open future— open an to right his illustrate to provides Feinberg case paradigmatic the in ment ment of then certainty, his theory is In seriously underinclusive. many cases, if not Even foreclosed. be will future particular a that certainty with say cannot one most, actions actions that make such loss certain. Feinberg himself writes that of violations the right to an open future will “guarantee” that certain options will child. be closed to a actions actions that expose one to risk of losing future autonomy rights, but rather only where one violates a child’s future autonomy right to walk down a sidewalk by cut- by a sidewalk down walk to right autonomy future a child’s one violates where leg off his ting C Y 43059-lcb_25-1 Sheet No. 130 Side A 03/17/2021 10:17:28 A 03/17/2021 130 Side Sheet No. 43059-lcb_25-1 43059-lcb_25-1 Sheet No. 130 Side B 03/17/2021 10:17:28

M K C Y had his future auton- future his had Yoder tandingthe right opentoanfuture fromphil- a cessarily foreclose a certain possible future, but they cer- they but future, possible certain a foreclose cessarily

ticle’s scope, but it would need to center the right to an open at 119–20. 119–20. at

Id. Id. That That is not to say that is there no to merit the right to an open future. Every- The difference between a mere eight years of elementary education and a mere mere a and education elementary of years eight mere a between difference The ten years of mostly elementary education seems so trivial in the technologi- cally complex modern world, that it is hard to maintain that a child who has only the former is barred frommany possible careers while the child who has only the latter is not. The harm of refusing to immunize children makes a great deal more sense from from sense more deal great a makes children immunize to refusing of harm The 195 196 determination,” suggest determination,” that Feinberg is aware that raising a child while preserving that child’s open future is an endeavor that defies, in his words, “sharp line[s].” approach on-off binary, the with inconsistent is approach nuanced a for call this But unders when take to seems Feinberg occur- future a in right present a grounding with trouble The standpoint. osophical undetermined essentially and unknown is violated is right the whether that rence is occur. not does or does contingency the when time future the until entitled are children that belief the with consistent fully and true be can above thing reasonable of range a to access with adults into up grow to need they things those to This This statement, read alongside Feinberg’s statement about the “paradoxes of self- 244 244 in child Amish that the writes Feinberg in reality. finds a though from practical standpoint,” “[f]rom philosophical the omy violated rights REVIEW LAW CLARK & LEWIS 25.1 [Vol. LCB_25_1_Art_5_Feldman (Do Not Delete) 3/3/2021 8:26 PM

ter of degree, and, to the extent a child’s right to an open future has any intuitive resonance at all, it must allow for the right to be violated in situations where the but nonethe- slim are one-in-a-million, opportunities life of reasonable probability existent. less future on probability rather than certainty. In many cases even the most limiting of of limiting most the even cases many In certainty. than rather probability on future ne not does actions parental from child Amish an Preventing occur. to likely less futures possible make can tainly eventually will he that unlikely more significantly it make may school high attending become a marine biologist than would be the case under different that circumstances, actions Even impossible. altogether is outcome this that mean not does this but a that example, for future—suppose, open an to right a of violative clearly more are at raised his parent child her but taught home how never to read or write—makes prac- But, impossible. not still while likely less even plans life of range wide a having tically speaking, how meaningful of a difference is there between virtual certainty mat- a merely are outcomes future certain for Opportunities certainty? absolute and life life plans from which to choose. Exactly what a more nuanced theory might look like is beyond this Ar standpoint: 43059-lcb_25-1 Sheet No. 130 Side B 03/17/2021 10:17:28 B 03/17/2021 130 Side Sheet No. 43059-lcb_25-1 43059-lcb_25-1 Sheet No. 131 Side A 03/17/2021 10:17:28

, OX , V HRISTIAN HRISTIAN , C Although com- . (June 28, 2019), . 137, (2018). 142 TR do not presently advo- presently not do C -perspective-on-vaccination- and who played an im- an played who and TUD

S . ES R EGAL EGAL L

J. EW reasonable risk and the latter is not. not. is latter the and risk reasonable christian-science , P ALHOUSIE , 27 D 27 , w w much risk will violate such a right. After all, every com/press-room/a- Personal Belief Exemptions from School VaccinationRequirementsSchoolExemptions BelieffromPersonal Amid Measles Outbreak, New York Closes Religious Exemption Patient v. God: Determining the Standard of Care for Christian ScienceChristian for Care of Standard the Determining God: v. Patient 275,278–79 (2014). EALTH Religion and Vaccine Refusal Are Linked. We Have to Talk About It. H

. A Christian Science Perspective on Vaccination and Public Health .christianscience. UB P

. www Austen Metcalfe, Douglas S. Diekema, EV R See See Aleksandra Sandstrom, Julia Julia Belluz,

. https:// This does not answer ho The The second objection is whether refusing to vaccinate children because of a NN

198 199 200 197 ., M K CI portant role in establishing religious vaccine exemptions, vaccine religious in role establishing portant municable municable disease outbreaks are common in religious communities, “ostensibly (June (June 19, 2019, refusal. 10:40 AM), https://www.vox.com/2019/6/19/18681930/religion-vaccine- Even Christian Scientists, who believe illness is illusory Practitioners in Medical NegligenceCases A 35 for Vaccinations—but https://www.pewresearch.org/fact-tank/2019/06/28/nearly-all-states-allow-religious-exemptions- Most States Retain It S 2021] 2021] this frame of reference. It is not enough to say that the parent who refuses to vac- contracts actually child the once rights child’s the violated only has child her cinate polio and FUTURE OPEN AN & becomes VACCINATION paralyzed. If the right to an open future is a right that can be future, open an for chance of loss the be must harm the actions, present by violated not the necessary preclusion of it. Rather, the parent who refuses to vaccinate her disability, permanent or death of risk higher significantly a to child the exposes child injury. unjust the itself is loss-of-chance and this 245 LCB_25_1_Art_5_Feldman (Do Not Delete) 3/3/2021 8:27 PM

cate that church members refrain from vaccinating their children. their vaccinating from refrain members church that cate for-vaccinations/; for-vaccinations/; act of driving alone the theto violates practice child’s child soccer right to an open time a parent drives her child to soccer practice, the parent is creating a risk that the the that risk a creating is parent the practice, soccer to child her drives parent a time child will be killed or disabled in a car crash. Surely it is not the case that the very future. But how can one meaningfully distinguish between the risk of not vaccinat- not of risk the between distinguish meaningfully one can how But future. ing a child and the risk of driving the child to soccer practice? The answer is the a is formerthe questions: many to answer law’s This may be an because-I-say-so unsatisfying, answer, but the law is built on these distrust distrust of medical and professionals Western medicine must be tolerated out of a non- of majority vast the discussed, previously As pluralism. to commitment liberal medical exemptions sought by parents are philosophical, not religious or cultural, in nature. In fact, no in major religion the opposes vaccination. formally world kinds of judgments. There is empirical support for the notion that failing to vac- is risk much how but of risk, degree significant a to them exposes child one’s cinate is said thison to more be There subject but is quantifiable. not so easily reasonable afield. far too Article this take would so doing 2 Objection B. C Y 43059-lcb_25-1 Sheet No. 131 Side A 03/17/2021 10:17:28 A 03/17/2021 131 Side Sheet No. 43059-lcb_25-1 43059-lcb_25-1 Sheet No. 131 Side B 03/17/2021 10:17:28

M K C Y nor- This can be ob- be can This As Steiner-Dillon “principle of public rea- public of “principle reflect how the Court has To accommodate objections to to objections accommodate To epistemic Jacobson tive/epistemic tive/epistemic divide in the structure of This is precisely the kind of viewpoint viewpoint of kind the precisely is This consensus is to for allow conceptions of (Apr. 10, 2019, 1:22 PM), https://www.vox.com/science-and- OX What the World’s Religions Teach, Applied to Vaccines and Immune Immune and Vaccines to Applied Teach, Religions World’s the What note 150, at 176–79. 176–79. at 150, note , V , , James Steiner-Dillon provides a compelling argument for demonstrate how the Supreme Court accommodates objec- supra of the former gatekeepers.” former the of 2011, 2011 (2013). New York’s Orthodox Jewish Community Is Battling Measles Outbreaks. Yoder ACCINE at 228. 228. at 188. at norma the reinforced have (“[C]ourts 224 at Sticking Points , 31 V 31 , Julia Julia Belluz, Steiner-Dillon, Id. Id. Id. John D. Grabenstein, D. John Grabenstein, methodologies public reason within which different conceptions of the good should be tol- should be the good of conceptions different which within public reason In The The question would be more if complicated there were a group that opposed 202 203 204 205 206 201 explains, explains, there is an epistemic background culture committed to the notion that “[a]n epistemic viewpoint that rejects scientific empiricism is unreasonable” and therefore undeserving of state deference. While cases like like cases pluralism, normative in groundedtions childhood vaccination that vaccination scientific reject childhood decision-making. legal guide to knowledge empirical in grounded not are that truth served in the recent outbreaks of measles in ultra-orthodox Jewish communities. Although people in these communities frequently seek religious exemptions from vaccination, their objections are grounded not in religious doctrine but instead in “philosophical”underliescommonlyobjections. misinformationthatof kind the refused refused to similarly accommodate objections grounded in epistemic pluralism. Thus, Thus, the law objections to rejects philosophical that vaccines lie outside of Amer- plural- of name the in accommodated be not need and reason public epistemic ica’s ism. erated, erated, so have an democracies too should liberal why these objections should not be tolerated: just as liberal democracies need a need democracies liberal as just tolerated: be not should objections these why mative

Globulins Blame. to Are Deniers Vaccine health/2018/11/9/18068036/measles-new-york-orthodox-jewish-community-vaccines. statutory exemptions and further entrenched the law’s tacit commitment to accommodation of objections to generally applicable legal concomitant lack of accommodation objections to grounded in epistemic pluralism.”). requirements grounded in normative principle and and-public-health (last visited Feb. 23, 2021). that underlies vaccine hesitancy, a reflection of how “the circumvention of gatekeep- of circumvention “the how of reflection a hesitancy, vaccine underlies that ing institutions has contributed to an epistemic flattening, facilitating a culture of skepticism toward claims of epistemic authority, expertise, and even the epistemo- logical 246 246 religious reasons to decline immunization actually reflect[] concerns about vaccine faith a around organized people of socialnetwork amonga beliefs personal safetyor community, rather than theologically based objections per se.” REVIEW LAW CLARK & LEWIS 25.1 [Vol. LCB_25_1_Art_5_Feldman (Do Not Delete) 3/3/2021 8:26 PM vaccination on genuinely religious grounds. This is due to one significant drawback drawback significant one to due is This grounds. religious genuinely on vaccination son” that relates to how citizens disagree about empirical facts. empirical about disagree citizens how to relates that son” 43059-lcb_25-1 Sheet No. 131 Side B 03/17/2021 10:17:28 B 03/17/2021 131 Side Sheet No. 43059-lcb_25-1 43059-lcb_25-1 Sheet No. 132 Side A 03/17/2021 10:17:28 On On Ameri- . (Apr. 25, TR most C

. ES If this is the case, R EW , P It is for this reason that the Court, Court, the that reason this for is It h empirical analysis. Thus, a parental parental a Thus, analysis. empirical h , noting that “[t]here can be no assumption that Yoder , 393 U.S. at 449–51. 449–51. at U.S. 393 , Key Key Findings About Americans’ Belief in God amend. I. The first and most obvious explanation for this disparate treat-

. whereasadherence to non-religious philosophicalbelief is not con- ONST , 406 U.S. at 223–24. 223–24. at U.S. 406 , C

Presbyterian Church To do otherwise, theCourt hasfound, is stateinterference with religious Jones v. Wolf, 443 U.S. 595, 604 (1979); Presbyterian Church v. Mary Elizabeth , “[a], ofwaylife, however virtuous andadmirable, maynot beinterposed as Dalia Dalia Fahmy, v. Yoder, Wisconsin 215 205, 406(1972). U.S. U.S. See See Yoder As a matter of fact, the two are treated disparately. As the Supreme Court noted noted Court Supreme the As disparately. treated are two the fact, of matter a As 207 208 209 210 211 212 Yoder M K in in a barrier to state of reasonable regulation if education it is based on purely secular considerations.” it is inaccurate to say that American society tolerates only beliefs grounded in em- pluralistic a in accommodated be must viewpoints faith-based if Yet, reasons. pirical society, what principled basis is there for not accommodating viewpoints based in “junk intuition, or science,” for some reason belief that is neither empirical nor re- philosophical over privileged be objections religious should words, other In ligious? neither? or both accommodating of in favor this cut does not, if and, ones, Blue Hull Mem’l Prebyterian Church, 393 U.S. 440, 449 (1969). 2021] 2021] religious held deeply have Americans many argument: reason public epistemic the of or spiritual beliefs that are not grounded in Inempirical reasons. fact, power. higher other some or God in 90%—believe full cans—a FUTURE OPEN AN & VACCINATION 247 LCB_25_1_Art_5_Feldman (Do Not Delete) 3/3/2021 8:27 PM

the other hand, objections made on the basis of distrust in conventional medical rest they because evaluate to courts civil of competence the within fully are practice throug refuted or verified be can that claims on objection based on the belief that vaccines cause autism can be rejected by a court on the basis that this belief is beliefs that are factually Even philosophical baseless. not obviously refutable—for example, that even the smallest risk of harm from a though competent to say whether a particular religious practice is harmful or not, is is not, or harmful is practice religious particular a whether say to competent though to incompetent say that whether practice is or factually correct not. The Supreme Court suggested so much in is today’s majority ‘right’ and the Amish and others like them are ‘wrong.’” ment is that religious practice is protected by the Free Exercise Clause of the First Amendment, practice practice that violates the First Amendment. stitutionally stitutionally protected; in other words, it is just a matter of constitutional custom. A fuller explanation may be that a court of law is more competent to validity of a viewpoint than philosophical a judge religious one. The Supreme the Court has ap- to instead rule on the doctrine, unwilling basis long of been expressly religious of insti- law” principles to religious involving “neutral plying disputes legal resolve tutions. 2018), https://www.pewresearch.org/fact-tank/2018/04/25/key-findings-about-americans-belief- 2018), in-god/. C Y 43059-lcb_25-1 Sheet No. 132 Side A 03/17/2021 10:17:28 A 03/17/2021 132 Side Sheet No. 43059-lcb_25-1 43059-lcb_25-1 Sheet No. 132 Side B 03/17/2021 10:17:28 M K C Y , who risk losing their Yoder to eitherto give the child thecapacity to d of promoting pluralism. Ultimately, This deaf child may have no innate desire to be deaf, deaf, be to desire innate no have may child deaf This note 146, at 12. 12. at 146, note supra Davis, Davis, One may answer honestly, then, that there is a sensible argument for accom- A third possible objection is related to the “paradox of self-determination” dis- self-determination” of “paradox the to related is objection possible third A 213

248 248 vaccine is enough to reject vaccination altogether—need not receive the kind of deference courts will show to religious beliefs, for it is well within the competency religious Because unreasonable. as view baseless factually a such dismiss to court a of they be cannot be beliefs cannot similarly deemed to said unreasonable, lie outside reasons. REVIEW LAW public CLARK & LEWIS epistemic or normative society’s of 25.1 [Vol. LCB_25_1_Art_5_Feldman (Do Not Delete) 3/3/2021 8:26 PM and choosing to be deaf may fairly be characterized as idiosyncratic. But, by living by living But, as idiosyncratic. to be be fairly deaf characterized may and choosing with deaf parents or within a deaf community, she may come to appreciate being deaf because it enables her to relate to her parents or her community in a way that about pointsimilar amake could One deaf. werenot she if otherwisenotshe would children raised in Amish like communities, the one in connection to their families and communities by doing things that, for most non- every that say to not is This adulthood. into growing of aspects standard are Amish, child can commonly share. can commonly child eral theory. If vaccinations are necessary for are an eral necessary If open theory. future because not vaccinations being vac- cinated can cause death or serious and permanent disability, parents have no right parents positive, is right this if (and, vaccines of provision state’s the with interfere to have an to obligation affirmative vaccinate their Pluralism children). may be good, but where right is prior to good, pluralistic interests must give way to the rights of children. 3 C. Objection modating religious objections toward the en however, this disparate treatment between religious and philosophical objections is of no consequence as to whether the state can enforce a child’s lib- in right right the of primacy the of to because objection non-medical an any against future open practices practices of their parents? This position may have merit where a choice must be made at a time when a child is too young to express an preference individual and where certain idiosyncratic practices derive their appeal from connection to a par- ticular culture or in a tradition way that makes them within those con- reasonable texts. For example, deaf parents deciding whether to give their deaf child cochlear choice: difficult a with grapple must implants hear and all of the opportunity that entails over the course of heritage thecultural rich “a accesschild’s to develop- child the allow and deaf child the keep to or ment, built around the various residential schools, a growing body of drama, poetry, and other artistic traditions, American . . . and Sign Language” that the parents and cussed in Part III: if parents influence the preferences of their children, is reasonable to it assume not that children would follow even the idiosyncratic beliefs or 43059-lcb_25-1 Sheet No. 132 Side B 03/17/2021 10:17:28 B 03/17/2021 132 Side Sheet No. 43059-lcb_25-1 43059-lcb_25-1 Sheet No. 133 Side A 03/17/2021 10:17:28

J.

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. M pecific inquiry, and and inquiry, pecific , 8 A t this is a fact-s a is this t mative.It cannot be definitively proven indicates indicates no clear course of action, other V. CONCLUSION CONCLUSION V. is a challenging question is that, as with the first objec- first the with as that, is question challenging a is Limiting Limiting Parents’ Rights in Medical Decision Making Lee Black, 676, 679 (2006). Can the same be said for a child whose parents believe that vaccines cause death death cause vaccines that believe parents whose child a for said be same the Can This Article has argued that children are entitled to at least some greater degree degree greater some least at to entitled are children that argued has Article This 214 M K THICS Reasonableness is to a great extent an intuitive assessment, and there comes a point point a there comes and assessment, intuitive an extent a great to is Reasonableness infor be to ceases point the arguing which at generally are they but unreasonable, are vaccination to objections philosophical that any give to not enough reason is This States. United the in unreasonable considered provided examples other the in deference give might one way the them to deference

E how “reasonable” each of these choices seem may vary from reader to reader. As with with As reader. to reader from vary may seem choices these of each “reasonable” how about beliefs on rests position a where easier be may task the objection, previous the the world that are demonstrably incorrect. The overwhelming confidence medical compelling a as recognizes law the which vaccination, of wisdom the in have experts it claim, easiermakes to factual reason to believe truththe of a particular epistemic judge vaccine skepticism as unreasonable. Where strong reasons of this kind pre- contrast, In reasonable. be to perspectives dissenting find to difficult is it dominate, where the weight of epistemic authority kinds of considerations can have a place even in the medical decision-making con- 2021] 2021] deaf child will prioritize deaf culture over hearing, or that every Amish child will prioritize Amish family and culture over the of opportunities life. non-Amish But most in unreasonable seem may that decisions parental how illustrate examples these FUTURE OPEN AN & VACCINATION contexts. specific certain, in reasonable seem can contexts th makes What disability? or the To self-validating. is that determination reasonableness a in lies answer the tion, current the not but 249 examples previous the in parents the to sympathetic is one extent idiosyn- the choosing person reasonable a of conceive could one because is this one, Bu latter. the not but former the in options cratic LCB_25_1_Art_5_Feldman (Do Not Delete) 3/3/2021 8:27 PM that children have a Feinbergian right to an open future, which involves a child’s present in interest those future rights to autonomy necessary choose among a rea- sonable range of potential life plans. Parents who exempt their children from vac- unreasonable an to children their exposing by “rights-in-trust” these violate cination role parent’s the with inconsistent manner a in disability permanent or death of risk rights. autonomy future child’s of her aas trustee above. above. of access to vaccinations than they currently have in states that grant vaccine-hesi- tant parents non-medical exemptions. This conclusion is grounded in the premise text. In fact, courts will often defer to a parent’s religiously-based objection to stand- to objection religiously-based parent’s a to defer often will courts fact, In text. succeed.” to than fail likely is more treatment “the where treatment ard medical C Y 43059-lcb_25-1 Sheet No. 133 Side A 03/17/2021 10:17:28 A 03/17/2021 133 Side Sheet No. 43059-lcb_25-1 43059-lcb_25-1 Sheet No. 133 Side B 03/17/2021 10:17:28 M K C Y However, unlike unlike However, note 115, at 142–50, 433–46, 433–46, 142–50, at 115, note supra , door to a host of philosophical issues issues philosophical of host a to door right into a legal one. As this Article the purview of Feinberg’s right to an an to right Feinberg’s of purview the AWLS and young children are neither rational rational are neither young children and l of individual rights. Liberalism envisions envisions Liberalism rights. individual l of sential to the orderly pursuit of happiness t does exist in some form or another. or another. form in some exist does t Maturity, Maturity, Difference, and Mystery: Children’s Perspectives and 11, 23 (1994) (citing R

. EV R note 115, at 504–12(describing moral persons as being “capable of having

L.

. supra , RIZ AWLS Wendy Anton Fitzgerald, R , 36 A Child rights are challenging to analyze because they also fit imperfectly within within imperfectly fit also they because analyze to are challenging Child rights Although this Article uses liberal ideology as its moral lodestar, a large portion portion large a lodestar, moral its as ideology liberal uses Article this Although Children’s Children’s rights is a deceptively complicated subject. Some of the difficulty 215 216 nor autonomous. Young children may still have certain Lockean rights by virtue of of by rights virtue Lockean certain may still Young have children autonomous. nor sense. political the in “persons” not are they but humanity, their 513–20). of a time before Americans began viewing children as persons with essential human human essentialwith persons as children viewing began Americans before time aof the Law (and are assumed to have) a conception of their good (as expressed by a rational plan of life); and second they are capable of having (and are assumed to acquire) effective a desire to sense apply and of to act justice, upon the a principles of normally justice, at least to a certain minimum degree”). relatively near future. There is therefore a tension between viewing children as pre- children a therefore viewing tension is future. between There near relatively sent non-persons and recognizing that actions taken in the present will inevitably ends. unjust potentially toward persons future as children of prospects life the affect pre- the into children of right-interests future the brings helpfully theory Feinberg’s sent, but even his makes theory time struggles over to children of fully evolution flesh The out effects. the future mechanics and of causes how present to rights relate it difficult to child analyze within rights the of present-ori- framework liberalism’s rights. of conception ented con- to a right have parents Constitution, U.S. the Under jurisprudence. American trol their that upbringing children’s is es relic a is it law, common at recognized long right a is this Although persons. free by other political non-persons, children will predictably become political persons in the the in persons political become predictably will children non-persons, political other 250 250 REVIEW LAW CLARK & LEWIS 25.1 [Vol. LCB_25_1_Art_5_Feldman (Do Not Delete) 3/3/2021 8:26 PM to vaccination (negative or positive) or is within positive) (negative to vaccination theory other some for point starting a be also may theory Feinberg’s but future, open this Underlying effectively. more even rights children’s conceptualizes that rights of a righ such that intuition an Article is of the difficulty one encounters when discussing child rights stems from how chil- mode liberal the into imperfectly fit dren rights-holders, autonomous and rational one encounters when analyzing these rights is inherent to translating rights from the the from rights translating to inherent is rights these analyzing when encounters one realm of the ideal into that of the non-ideal. When basing legal policy arguments on moral rights, it is as much of a challenge context to the pin to down future the open nature an ofto right a Feinberg’s relevant applying In it. apply to is it as right the opens Article this vaccination, childhood of that complicate the translation of this moral suggests in Parts III and IV, Feinberg’s right to an open future is an effective con- ceptual model for understanding a child’s right to greater protection from that a right asserts Article one. This com- an imperfect it be but may diseases, municable 43059-lcb_25-1 Sheet No. 133 Side B 03/17/2021 10:17:28 B 03/17/2021 133 Side Sheet No. 43059-lcb_25-1 43059-lcb_25-1 Sheet No. 134 Side A 03/17/2021 10:17:28

. HI in in en- C

. 227, 240 treatment , 63 U. EV R

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. parens patriae illiberal OLUM

, 118 C The role of empiricism is is not The of role empiricism note 52, at 647. Other influential influential Other 647. at 52, note supra note 138, at 2414–18. 2414–18. at 138, note supra On Educating Children: A Parentalist Manifesto A On Parentalist Children: Educating The Empirical Turn in Family Law Stephen G. Gilles, Gilles, G. Stephen See at 229. 229. at Today, family law “regularly decisionmakers draw on sociology, psychol- Clare Huntington, Id. Inconsistency with a liberal conception of rights does not necessarily make for poor . 937,Scott, & (1996);1001–03 Scott todirect the upbringingof their children.The notion thatparents haveafun- Lastly, Lastly, analyzing children’s rights is challenging because of the difficulty an 218 219 217 EV R M K

deciding when a parent’s control over her children has faltered and the child requires requires child the and faltered has children her over control parent’s a when deciding ogy, neuroscience, data analytics, and related social and and hard social sciences and data analytics, to make crit- related ogy, neuroscience, of families.” ical about the legal choices regulation particular needs make parents the child-specific experts most qualified to assess and pursue their children’s best interests in most circumstances.” Buss, legal scholars who have endorsed robust parental rights are Stephen Gilles, Elizabeth Scott, and Robert Scott. L. (2018) (“[E]mpirical analysis in family law is now widespread. This trend is consistent with the of law demand to in it but family a law. also generally, responds empiricization particular In the last part of the twentieth century, the Supreme Court largely rejected traditional morality and dominant norms as acceptable justifications familyfor law.”). putes. argues example, for Buss, Emily defenders. notable their have do rights parental and jurisprudence, their of knowledge considerable and children their to attachment emotional strong “[p]arents’ that adjudicator faces in determining what an incompetent child would prefer if she were were she if prefer would child incompetent an what determining in faces adjudicator competent. The law considers the “best interests” of the child because it assumes do is will what people thatin Thethey best believe their competent interests. chal- to reasona- a commitment balancing from comes analysis interests” “best a of lenge the without function cannot law The idiosyncrasy. of possibility the against bleness capacity of an adjudicator to distinguish between truth and fiction, reasonableness ded- dogmatic a by served best are justice of interests the and unreasonableness, and are con- of children rights the where true particularly is This empiricism. to ication empirical law,” [the] of “empiricization general a seen have decades recent As cerned. analysis has assumed particular importance in the resolution of family law dis- 2021] 2021] rights. America was conceived by liberal thinkers and American law has since its founding embodied liberal ideals, so it is unsurprising that American law has also its is struggledchildren.sinlaw’s theofButpersonhoodthe with FUTURE OPEN AN & VACCINATION 251 LCB_25_1_Art_5_Feldman (Do Not Delete) 3/3/2021 8:27 PM

just limited to its functional value in ensuring positive outcomes for families. Rather, Rather, families. for outcomes positive ensuring in value functional its to limited just a state’s ability to determine factual truth is essential to its role as of children. Parental rights are more than just a delegation of responsibility by the state to care for and raise the incompetent into rather, parents competency; are titled damental another is right to human inconsistent the Lockean control concep- with tion of human rights that underlies liberal theory, even “political if persons.” The children unjust institution are of parental not rights is full an obstacle to any rights. of conception a liberal in scheme grounded legal C Y 43059-lcb_25-1 Sheet No. 134 Side A 03/17/2021 10:17:28 A 03/17/2021 134 Side Sheet No. 43059-lcb_25-1 43059-lcb_25-1 Sheet No. 134 Side B 03/17/2021 10:17:28 M K C Y ay parenting decisions, affecting to ental ental control the falters, State must play its part Justice thus requires a steadfast commitment to objective objective to commitment steadfast a requires thus Justice ”). Schall v. Martin, 467 U.S. 253, 265 (1984) (noting that children are “assumed to be However, verifiable truths are not the only guides of human behavior. A robust robust A behavior. human of guides only the not are truths verifiable However, Children are far too young to make reasoned medical decisions at the age when when age the at decisions medical reasoned make to young too far are Children

220 parens patriae parens

252 252 intervention. state’s the REVIEW LAW CLARK & LEWIS 25.1 [Vol. LCB_25_1_Art_5_Feldman (Do Not Delete) 3/3/2021 8:26 PM truth. to some allowing in lives their accord- conduct requires commitment to autonomy And, understand. or share not may others that values cultural or religious with ance because children’s beliefs and desires are largely shaped by the environments they pass and from do can to many may idiosyncratic that seem in, preferences grow up one generation to the next. Assessing when a child is reasonable “harmed” among variations is pluralistic of more inevitability) (indeed, difficult possibility the given people. as subject to the control of their parents, and if par they must receive most but vaccinations, the decisions made for them at that time have potentially life-long consequences. Of course, this is not dissimilar to many decisions that parents must make for children of this age. Parents will inevitably shape their children’s futures through everyd some extent who their children will be in adulthood. The right to an open future does not demand the impossible of parents. All it requires is that parents ensure children upon to have adulthood autonomy enough reaching choose among a rea- life. good of the conceptions own their fulfill and plans life of range sonable 43059-lcb_25-1 Sheet No. 134 Side B 03/17/2021 10:17:28 B 03/17/2021 134 Side Sheet No. 43059-lcb_25-1