Aníbal Rosario Lebrón (Rutgers Law School; New York University School of Law; University of Puerto Rico) has posted Opting Out of Subordination: Minors’ Right to Control Their Bodies and Futures (forthcoming 47 Cardozo Law Review __ (2026)) on SSRN. Here is the abstract:
Under the guise of immaturity and parental rights, the United States has largely silenced minors’ voices, particularly in decisions involving their bodies, identities, and futures. The legal system, structured around parental authority, consistently mediates and constrains children’s constitutional claims, leaving minors with limited bodily autonomy, diminished civic formation, and a quasi–property-like status within the family. This Article argues that this framework has produced an incoherent regulatory approach to minority and parenthood—one that not only deprives children of meaningful opportunities to practice citizenship but also deepens their inequality within families and society, while facilitating other subordinations, including SSOGIE (sex, sexual orientation, and gender identity/expression) inequality. The Article begins by contrasting the United States’ parental authority model with the parental responsibility model, situating U.S. exceptionalism in its weak commitment to children’s agency, rights, and civic apprenticeship. It then canvases Supreme Court jurisprudence on minors’ constitutional protections, showing that although minors are formally recognized as rights-holders, decisions addressing speech, searches, education, and reproductive autonomy consistently subordinate their liberties to parental authority and a narrow conception of civic education. Rather than constituting an independent body of children’s rights law, this jurisprudence is best understood as an extension of parental rights and parens patriae. Turning to parental rights doctrine, the Article demonstrates how the Court has reinforced children’s property-like status, impoverished their civic education by privatizing it within the family, and permitted the instrumentalization of children for parental and third-party ideological or economic agendas. The Article then examines how contemporary anti-SSOGIE movements have intensified these harms by weaponizing both parental rights and parens patriae against minors. Two parallel legal trends illustrate this shift. In the first, parents invoke child-rearing rights to challenge regulations such as mandatory vaccinations, inclusive sex education, or bans on conversion therapy, while the State retreats from its parens patriae role even when compelling public interests are at stake. In the second, the State deploys its parens patriae to override supportive parents, denying minors access to abortion or gender-affirming care despite parental consent. In both scenarios, minors are excluded from decisions that profoundly shape their bodies and futures. Engaging leading theories of minority and parenthood, the Article identifies persistent gaps: the absence of a fully triadic model encompassing parents, children, and the State; insufficient attention to relational distributions of responsibility; an underdeveloped account of the State as co-constitutive rather than merely facilitative; an unduly narrow catalog of minors’ rights; and weak procedural mechanisms for enforcing parental duties and child participation. Given existing constitutional and political constraints, the Article rejects calls for a wholly new theory of minority. Instead, it argues for capitalizing on the Supreme Court’s existing commitments to recognizing minors as constitutional rights-holders and civic learners, centering equality, and abandoning rigid maturity or brain-development thresholds in favor of evolving agency and procedural legitimacy. Finally, the Article introduces a convergence/divergence adjudicative framework designed to operationalize minors’ rights. The framework proceeds in four stages: analyzing posture permutations within the minor–parent–State triad; classifying cases by difficulty to calibrate judicial scrutiny; applying equality and procedural safeguards—including reliability and animus filters for parental and state claims; and establishing structured pathways for minors’ independent standing, representation, and voice, supported by transparent findings and multidisciplinary assessments. Together, this framework reconstitutes the triadic relationship, dismantles parental exceptionalism, pierces the privatized family veil, and advances a coherent constitutional approach to minority that affirms children’s rights, agency, and civic status beyond a coverture-like paradigm.
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