The doctrinal and conceptual incoherence of state action raises unique problems for
the partially-constitutionalized right of children to bodily integrity. The failure of courts
to recognize and address these problems directly accounts in part for their failure to
recognize a consistent and meaningful right of minors to bodily integrity.

Foucault’s theory of power, which appears to be particularly applicable in the
context of children’s bodily integrity rights, suggests the arbitrariness of the state-action
line drawn by cases such as DeShaney. It demonstrates that state power permeates and
structures the family relationship. It thus appears that state action should be understood
to be present whenever parents act on children’s bodies. If the state is acting as parent,
and parent as agent of the state, then it is not particularly meaningful to consider some
violations as purely private and others as perpetrated by public actors. Every parental
violation of a child’s bodily integrity would become a potential constitutional violation,
chargeable to the state.