On February 22, 2022, Kensey Dishman died. She was thirteen years old. Doctors believe Kensey, a high-risk patient, died of COVID-19-related causes. Kensey had asthma, a condition for which vaccination is recommended. Yet, despite her asthma, she wasn’t vaccinated and wasn’t masked. A week before her death, her school district removed mask mandates. Her choice was to refuse vaccination; her divorced parents were conflicted. Her mother and step-dad, vaccinated themselves, urged Kensey to get vaccinated. Her biological father agreed with her choice not to vaccinate. Normally thirteen-year-olds aren’t allowed to make significant health-related decisions for themselves. So, what happened here?
The case presents a panoply of legal and ethical issues – pitting divorced parents against each other, their child, the state, and the child’s doctors. These issues aren’t limited to this case but to other instances in which parental beliefs conflict with a child’s health and safety and/or governmental regulations. Laws are supposed to govern these kinds of cases- to safeguard the kids. Parental beliefs can’t interfere. So, how did Kensey fall through the cracks?
Parental Right to Direct their Children’s Upbringing
Normally minors – defined as those under 18- aren’t considered capable of making significant decisions for their health. However, some states have enacted exceptions regarding sexually-transmitted diseases, birth control, mental health, and substance abuse treatment. The right to make decisions regarding a minor’s health and upbringing is typically vested in the parents – and isn’t to be tampered with by the state, even if parental wishes or beliefs contradict “the norm.” Thus, Amish parents were allowed to stop schooling their children under the First Amendment guarantee of religious liberty. The Supreme Court ruled that state laws requiring that children attend school past eighth grade violate the parents' constitutional right to direct the religious upbringing of their children.
Kinsey’s biological father (unvaccinated himself) fully supported her decision to eschew vaccination, consistent with his sincerely held beliefs. Doesn’t that solve the problem – perhaps sadly, but nevertheless, legally for Kinsey?
The answer is no.
Parental rights are not absolute, and certainly not when it comes to the life or health of a child. Even religious convictions won’t override the state’s concern for the child’s health and medical welfare.
If a parent’s religious or personal views endangers the child's life or health, they are overruled. The state acts under the rubric of parens patriae (‘father of the country’), denoting the state’s role as sovereign guardian for persons under a disability. The doctrine allows the state to usurp parental control where the child’s best interest is at stake – even when the parental decision is vested in such hallowed a right as freedom of religion.
Where the child’s life or health is endangered, the Supreme Court has refused to allow parents’ beliefs to determine child-care, even where practice didn’t involve life and death, e.g., limiting childhood work activities and hours.
“[T]he family itself is not beyond regulation in the public interest,….And neither rights of religion nor rights of parenthood are beyond limitation... [T]he state has a wide range of power for limiting parental freedom and authority in things affecting the child's welfare….”
Prince v. Massachusetts
One might think this should decide things; the state steps in and overrides parental wishes.
Not so fast.
The Mature Minor Doctrine
Even parens patriae is not absolute. Seventeen states recognize the doctrine of the mature minor, where, if found sufficiently mature, the child may be allowed to refuse life-saving treatment and make health decisions for him or herself.
Kinsey was clear on her refusal to vaccinate and her reasons why. So, could she qualify to make her own choices under the mature minor doctrine, assuming her state of residence recognized the doctrine?
The youngest child allowed mature minor status was a 14-year-old Washington State Jehovah’s Witness who refused blood products, ultimately leading to his death, even though transfusions likely would have saved his life. The ages of fourteen or fifteen are generally the cut-off for mature minor status, although most cases concern 17-year-olds on the cusp of legal maturity. But even here, cases go both ways, with , with one court allowing the young petitioner her choice, even if it meant ending her life, and the other court declining the young woman’s choice, even as both cases involved refusing cancer treatments.
So, even if Kinsey’s state recognized the mature-minor doctrine, it would be far-fetched to believe the court would qualify her to make her own decisions. Her age doesn’t meet the mature minor threshold, and her reasons for rejecting vaccination, at least according to her stepfather, seem tethered to unsubstantiated anti-vax philosophy pervading the neighborhood, as reportedly some 60 percent of the surrounding counties remained unvaccinated.
“People I think are afraid of [vaccination]. And there’s a lot of people in this area, they kind of think that [if] the government says that you need to do it, then we ain’t gonna do it.”
Brett Gibson, Kinsey’s stepfather
The impasse poses a conundrum. Under the circumstances, if the parent can’t agree, the onus falls on Kinsey’s mother to seek court intervention to compel her to be vaccinated. Given her history of asthma, vaccination seems to have been medically appropriate.
What is a court to do?
How would a court weigh the decision to require vaccination in a child such as Kensey when no vaccine mandate existed in her state?
When called upon, the court, under parens patriae powers, focuses on preserving the life of the vulnerable. But case law expanded this to include protecting the wellbeing of the child, not just the life, including non-emergency surgery. “This power is "not limit[ed] to drastic or mortal circumstances, and exists ‘even in the absence of risk to the physical health or life of the subject or to the public,’ i.e., the power exists even where the child's life or general health is not in immediate danger.”
Vaccination benefits not only the child- but others, and health care professionals base recommendations on at least two crucial yet distinct justifications: the benefit to the individual and the benefit to the public. That benefit to third parties is also a consideration in invoking the parens patriae doctrine.
“Acting to guard the general interest in youth's wellbeing, the state, as parens patriae, may restrict the parent's control ….Its authority is not nullified merely because the parent grounds his claim to control the child's course of conduct on religion or conscience. Thus, he cannot claim freedom from compulsory vaccination for the child more than for himself on religious grounds. The right to practice religion freely does not include liberty to expose the community or the child….”
Prince v. Mass.
The ancillary benefits of vaccination to the public are not to be ignored, especially when vaccination is mandated, a situation that didn’t exist in Kinsey’s case.
The court acts upon the best interests of the child
A Massachusetts court couched the matter of parens patriae as weighing three competing interests:
- the child’s interests and the natural rights of the parents
- the state’s interests,
ruling that the coinciding interests of the child and state supersede those of the parents. The same ruling exists when divorced parents are at odds- the child’s best interest governs. (3)
In the absence of a state mandate to vaccinate, would a court be likely to compel vaccination? After all, at least early in the epidemic, COVID in young folks was commonly (although falsely, as I have written) believed to be harmless and certainly not-life threatening. Nevertheless, while vaccine safety may not have the greatest track record in teenaged boys, there is no similar concern for teenage girls – and the balance of probabilities would seem to favor vaccination. Given that she was a high-risk candidate, the case would turn into a battle of the experts. You, dear reader, can guess which experts would appear more convincing to the court.
Lessons Learned: Maternal Liability, Anyone?
Besides the guilt I suppose Kensey’s mother must feel, does her failure to seek court intervention cast her as a “bad” mother in the court of public opinion (at least in the pro-vaccine camp)? Worse still, some states hold parents criminally liable for negligence when they fail to take medical action on behalf of their children. Generally speaking, a parent’s religious convictions shields them from criminal liability, but not always. But, here, that rationale for failing to seek court intervention doesn’t exist.
Given that the nation is conflicted about the merits of vaccination – it likely that Kensey’s mom won’t be put in the criminal dock. But, parents should be wary:
“Adults are free to choose martyrdom. Children cannot have it thrust on them.”
The prosecutor in the case of Charles and Merilee Myers
 In In re. E.G., the petitioner, rejected blood transfusions to cure her leukemia on religious grounds – which was acceptable to the Illinois Court. By comparison, in re Cassandra C.316 Conn. 476 (1986), the petitioner rejected chemotherapy to treat her Hodgkin’s Lymphoma, condemning it as a poison; the Connecticut court refused to sanction this view.
 Perhaps similar to Cassandra’s case (above), where the court found that the “child's views” were “overshadowed by the mother’s negative views of chemotherapy.’
 Curran v. Bosze 163566 N.E.2d 1319 (Ill. 1990)