the choices that positively impact health the default choices, particularly
where they do not infringe on individual autonomy. More commonly, this
approach applies to self-concerning behavioral choices with public health
implications (e.g., diet).
60 However, the message can also apply to individual decisions that impact the health of others, as is true of organ and tissue
Public health already takes this approach to some health care decisions
that impact the health of others, such as childhood immunization.
may forego vaccinating their children, but must take explicit action to do so
because the legal default is immunization.
62 While all states permit exemption for medical reasons, and nearly all do so for religious beliefs, less than
half allow exemption for reasons of conscience, generally.
63 Though such a
mandate undoubtedly infringes on individual autonomy, the serious threat
of communicable disease justifies the approach, and states have ample public health legal authority under their police powers.
64 A presumed consent
donation system is a far lighter touch that is also justified by prevailing public health interests.
With respect to issues of autonomy and parental rights, it should be noted
that presumed consent should not apply to minors. Minors lack legal capacity to make many medical decisions,
65 and their actual donation consent
60. Obesity Prevention Source: Making Healthy Choices Easy Choices, supra note 58.
61. James G. Hodge, Jr. & Lawrence O. Gostin, School Vaccination Requirements: Historical, Social, and Legal Perspectives, 90 KY. L.J. 831, 857-58 (2002) (“Despite the mandatory nature of compulsory school vaccination laws, the state’s power to require children to
be vaccinated as a condition of school entrance has been widely accepted and judicially
sanctioned.”). See, e.g., N.Y. PUB. HEALTH LAW § 2164 (McKinney, WestlawNext through
L.2014, chapters 1 to 22, 50 to 60).
62. See, e.g., 25 TEX. ADMIN. CODE § 97. 62 (West, WestlawNext through 39 Tex.Reg.
No. 3512, dated April 25, 2014, as effective on or before April 29, 2014) (“To claim an exclusion for reasons of conscience, including a religious belief, a signed affidavit must be presented by the child’s parent or legal guardian, stating that the child’s parent or legal guardian
declines vaccinations for reasons of conscience, including because of the person’s religious
63. Nat’l Conference of State Legislatures, States with Religious and Philosophical Exemptions from School Immunization Requirements (Dec. 2012), http://www.ncsl.org
64. See Jacobson v. Mass., 197 U.S. 11, 27 (1905) (finding that individual liberty interests do not outweigh the authority of states under their police powers to protect community
health against epidemic disease through mandatory vaccination).
65. Rhonda Gay Hartman, Adolescent Decisional Autonomy for Medical Care: Physician Perceptions and Practices, 8 U. CHI. L. SCH. ROUNDTABLE 87, 91 (2001) (“Legal treatment of adolescent autonomy for medical decision making is based on a presumption of decisional incapacity.”). Minors have at least some authority to make decisions in certain
medical matters, particularly related to testing and treatment for sexually transmitted diseases, but their consent authority is generally considered limited. See
B. Jessie Hill, Medical
Decision Making By and On Behalf of Adolescents: Reconsidering First Principles, 15 J.
HEALTH CARE L. & POL’Y 37, 41-43 (2012). However, the legal landscape regarding minors’
medical decision-making capacity is a complicated one, and even the common assumption