Eiber, J. (dissenting). As is by now well known, Acquired Immune Deficiency Syndrome (AIDS) results from infection with the Human Immunodeficiency Virus (HIV). The virus, which damages an infected person’s immune system by destroying white blood cells, is transmitted chiefly through the exchange of blood and blood products, and through sexual relations. Although sexual abstinence and refraining from certain high risk behavior will prevent the transmission of the AIDS virus, Dr. Margaret Hamburg, the Acting Commissioner of the New York City Department of Health, has noted that "the reality is that adolescents are engaging in sexual intercourse in large numbers”. Dr. Hamburg has further noted that while New York City adolescents comprise only 3% of the nation’s teenagers, they account for 20% of all reported cases of adolescent AIDS in the United States. Moreover, 29% of all AIDS cases in the United States are diagnosed in young adults between the ages of 20 to 29. Since the disease has an 8-to-10-year latency period, according to Dr. Hamburg, "this statistic suggests that the majority of those persons must have been infected as adolescents”.
In an effort to prevent the spread of the HIV virus and to protect this City’s youngsters, in September 1987, the Regulations of the New York State Commissioner of Education were amended to direct all elementary and secondary schools to provide appropriate AIDS instruction as part of the health education curriculum (see, 8 NYCRR 135.3 [b] [2]; [c] [2]). Following his appointment in late 1990, former Board of Education Chancellor Joseph Fernandez proposed expanding the existing HIV/AIDS curriculum to provide comprehensive education in the transmission and prevention of the disease. In addition, former Chancellor Fernandez proposed supplementing classroom instruction by making condoms available, on a voluntary basis, to high school students who requested them. Thereafter, on February 27, 1991, the New York City Board of Education voted to adopt a resolution authorizing the former Chancellor to make condoms available to those students who request them in New York City high schools as part of an over-all HIV/AIDS education program. Although the Board considered the possibility of allowing parents who disapprove of the distribution of condoms to opt out of the voluntary program, the Board concluded that an opt-out provision would be unwise because students whose parents disapprove of premarital sexual relations may especially "be in need of a place where they can obtain condoms without *62having to account for any expenditures of funds or having to identify themselves in order to get the condoms”. Moreover, the respondents were concerned that a parental opt-out provision, which would require students to identify themselves before they could be given a condom, "would so seriously limit participation in the program as to make it ineffective in reaching many of those students who most need it”.
By verified petition dated November 25, 1991, the petitioner parents commenced this proceeding seeking, inter alia, a declaration that the condom distribution program implemented by the former Chancellor violated their civil rights under the substantive Due Process Clause of the Fourteenth Amendment of the United States Constitution, and a declaration that Public Health Law § 2504 required the respondents to obtain the prior consent of the parents or guardians of unemancipated minor students before the respondents may dispense condoms and provide personal health guidance to and counseling regarding condoms to such students. Although the Supreme Court dismissed the petition, concluding that the condom distribution program did not violate the parents’ constitutional rights or the New York State Public Health Law, the majority would reverse and grant the petition. For the reasons which follow, I respectfully dissent.
The majority concludes, in essence, that the condom distribution component of the expanded HIV/AIDS curriculum is a "health service” within the meaning of Public Health Law § 2504, and that since the statute does not expressly dispense with the need for parental consent to distribute condoms to students under the age of 18, the program violates the common-law prohibition against providing health care to minors absent such consent.* However, I cannot agree with the majority’s conclusion that the condom distribution program constitutes a "health service” of the same nature as the invasive medical, dental, health and hospital treatment contemplated by the statute or the common law.
Public Health Law § 2504 authorizes individuals over the age of 18 to consent to medical, dental, health and hospital *63services. The statute, which was enacted in 1972, when the age of majority in this State was 21, represents a modification of the common-law rule that a minor is not legally competent to give binding consent to any medical services rendered to him or herself (see, Hughson v St. Francis Hosp., 92 AD2d 131, 135; see also, Skeels, In Re E. G.: The Right of Mature Minors in Illinois to Refuse Lifesaving Medical Treatment, 21 Loy U Chi LJ 1199-1200, 1209).
Prior to the enactment of Public Health Law § 2504, there were no statutory guidelines for physicians to follow in treating persons under 21 years of age, and legislative history indicates that this provision was enacted in order to "expedite the delivery of health care to those under 21” (Letter of Tarky Lombardi, Jr., Chairman of Sen Comm on Health, May 8, 1972, Bill Jacket, L 1972, ch 769). The creation of a statutory right enabling a minor over the age of 18 to consent to medical treatment was further noted to be consistent with "the recent movement towards enlargement of the political and legal responsibilities of persons in the 18 to 21 year age bracket” (Mem of NY State Dept of Social Servs, Bill Jacket, L 1972, ch 769). In keeping with the goal of expediting the provision of health care to minors, the statute additionally permits emergency medical treatment to be rendered to children under the age of 18 without parental consent where an attempt to secure such consent would delay treatment and thus increase the risk to the child’s life or health. Although the statute does not expressly codify the common-law rule that an infant is unable to consent to medical, dental, health or hospital services, “[a]n implicit corollary” of the provision is that a person under 18 years of age may not give effective consent for such services (Matter of Thomas B., 152 Misc 2d 96, 98).
Despite the fact that neither the statute nor the common law defines the phrase "health services”, the majority would construe the phrase so broadly that it encompasses the distribution of condoms, which are noninvasive devices which protect the body without affecting it. The majority cites no authority of any kind for its sweeping construction of the term "health services”, and instead points to various portions of the record in which the respondents acknowledge that the condom distribution program is intended to prevent the spread of HIV. However, the fact that the program may have the salutary effect of reducing a sexually active adolescent’s risk of being infected with HIV and AIDS does not render the *64condom distribution program a health service which can be provided to a child under the age of 18 only with parental consent.
While the condom distribution program is, as the Supreme Court recognized, clearly "health related”, neither Public Health Law § 2504, which was enacted to expand the ability of certain minors to consent to medical treatment, nor the common-law rule contemplated preventing high school students from participating in such a program. AIDS is a new threat which the common-law rule was not designed to meet, and nothing in the common law or legislative history of the statute suggests that it was intended to restrict an unemancipated minor’s access to nonprescriptive devices to prevent the spread of disease. Thus, it is anomalous to construe the phrase "health services” as a means of restricting the rights of minors of high school age to voluntarily request condoms, which minors in this State are permitted to purchase or obtain from a variety of other sources.
Moreover, contrary to the majority’s contention, to engraft a parental consent requirement onto the condom distribution program would run counter to the United States Supreme Court’s holding in Carey v Population Servs. Intl. (431 US 678). At issue in Carey was the constitutionality of a New York statute which made it a crime for any person to sell or distribute a contraceptive device to a minor under the age of 16. In concluding that the statute was invalid, the plurality opinion noted that minors, as well as adults, are protected by the Constitution and possess constitutional rights, including the right to privacy in connection with decisions affecting procreation (Carey v Population Servs. Intl., supra, at 692-693). The plurality opinion further reasoned that: "Since the State may not impose a blanket prohibition, or even a blanket requirement of parental consent, on the choice of a minor to terminate her pregnancy, the constitutionality of a blanket prohibition of the distribution of contraceptives is a fortiori foreclosed. The State’s interests in protection of the mental and physical health of the pregnant minor, and in protection of potential life are clearly more implicated by the abortion decision than by the decision to use a nonhazardous contraceptive” (Carey v Population Servs. Intl., supra, at 694).
Furthermore, the majority’s conclusion that the distribution of condoms is encompassed by the common-law prohibition against providing medical treatment without consent, is at odds with the fact that minors in this State are permitted to *65obtain abortions and treatment for sexually transmitted diseases without parental consent or notification (see, Public Health Law § 2305). Surely, if minors are permitted to obtain treatment for the consequences of unprotected sexual intercourse without parental consent or notification, it is inconsistent to restrict their access to the means by which they can prevent an unwanted pregnancy or protect themselves from sexually transmitted diseases, including the deadly HIV virus.
In addition, while the majority turns a blind eye to the potential ramifications of its interpretation of the common-law rule, the fact remains that if the distribution of condoms is a "health service” which cannot be undertaken without parental consent, then the many family planning clinics throughout this State which distribute condoms and other contraceptive devices to minors must also be deemed in violation of the common law and statute. Similarly, if condoms cannot be provided to minors in the absence of parental consent, then it logically follows that the commercial sale of condoms to minors violates the Public Health Law and is illegal. Thus, a broad interpretation of the the term "health services” to preclude distribution of condoms to minors without parental consent would have a significant impact upon the ability of minors to obtain condoms, and thus violate their constitutionally recognized right to make such decisions privately.
I further disagree with the majority’s conclusion that the condom distribution program unreasonably interferes with the petitioner parents’ liberty interest in directing the upbringing and education of their children. This right was first recognized by the United States Supreme Court in Meyer v Nebraska (262 US 390), where the Court considered the validity of a statute which prohibited the teaching of foreign languages to children who had not yet completed the eighth grade. The avowed purpose of the statute was that "the English language should be and become the mother tongue of all children reared in this state” (Meyer v Nebraska, supra, at 398). The Supreme Court concluded that the Nebraska statute unreasonably infringed upon the liberty guaranteed to the plaintiff under the Fourteenth Amendment, which provides that "[n]o State shall * * * deprive any person of life, liberty, or property, without due process of law”. In reaching this conclusion, the Court observed that while it had not "attempted to define with exactness the liberty” guaranteed by the Fourteenth Amendment, "[w]ithout doubt, it denotes not merely freedom from bodily restraint but also the right of the individual to con*66tract, to engage in any of the common occupations of life, to acquire useful knowledge, to marry, establish a home and bring up children, to worship God according to the dictates of his own conscience, and generally to enjoy those privileges long recognized at common law as essential to the orderly pursuit of happiness by free men” (Meyer v Nebraska, supra, at 399). The Court further noted that this liberty interest "may not be interfered with, under the guise of protecting the public interest, by legislative action which is arbitrary or without reasonable relation to some purpose within the competency of the State to effect” (Meyer v Nebraska, supra, at 399-400). The Court then found that although the Nebraska Legislature’s desire "to foster a homogeneous people with American ideals” was easy to appreciate, "the means adopted * * * exceed the limitations upon the power of the State and conflict with rights assured to plaintiff * * * [t]he interference is plain enough and no adequate reason therefor in time of peace and domestic tranquility has been shown” (Meyer v Nebraska, supra, at 402).
Following Meyer v Nebraska (262 US 390, supra), the Supreme Court again concluded, in Pierce v Society of Sisters (268 US 510), that an Oregon statute which required all children between the ages of 8 and 16 to attend public school unreasonably interfered with the liberty of parents and guardians to direct the upbringing and education of children under their control. In sustaining a parent’s authority to provide religious schooling to his or her children, the Court declared that "[t]he fundamental theory of liberty upon which all governments in this Union repose excludes any general power of the State to standardize its children by forcing them to accept instruction from public teachers only. The child is not the mere creature of the State; those who nurture him and direct his destiny have the right, coupled with the high duty, to recognize and prepare him for additional obligations” (Pierce v Society of Sisters, supra, at 535).
In contrast, in Prince v Massachusetts (321 US 158), the Supreme Court upheld the conviction of a Jehovah’s Witness who permitted her niece to sell copies of the Watchtower in violation of Massachusetts’ child labor laws. In reaching its conclusion that the Massachusetts statute which banned children from selling newspapers and magazines was not unconstitutional, the Court reasoned that although "[i]t is cardinal with us that the custody, care and nurture of the child reside first in the parents”, the "family itself is not beyond regula*67tion in the public interest, as against a claim of religious liberty * * * And neither rights of religion nor rights of parenthood are beyond limitation” (Prince v Massachusetts, supra, at 166). In this regard, the Court added that: "Acting to guard the general interest in youth’s well being, the state as parens patriae may restrict the parent’s control by requiring school attendance, regulating or prohibiting the child’s labor and in many other ways. 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 to communicable disease or the latter to ill health or death” (Prince v Massachusetts, supra, at 166-167).
Here, the majority attempts to bring this case within the ambit of Meyer v Nebraska (262 US 390, supra) and its progeny by reasoning that, despite the voluntary nature of the program, the petitioner parents are being forced to surrender their right to influence and guide the sexual activity of their children without State interference. However, the mere fact that parents are required to send their children to school does not vest the condom distribution program with the aura of "compulsion” necessary to make out a viable claim of deprivation of a fundamental constitutional right. Unlike Meyer v Nebraska (262 US 390, supra) where a State attempted to totally prohibit parents from permitting their children to study a foreign language until after completion of the eighth grade, or Pierce v Society of Sisters (268 US 510, supra) where a State attempted to prohibit parents from sending their children to private parochial schools, the element of compulsion is totally absent here. The petitioners are free to impart their religious and moral values to their children in the privacy of their own homes, and to instruct their children not to participate in the condom distribution program.
Similarly, in Doe v Irwin (615d 1162), the Sixth Circuit Court of Appeals rejected a claim that parental rights were violated by a publicly operated family planning clinic which provided teenagers with contraceptives without notice to their parents. Although the plaintiff parents in Doe v Irwin (supra), as in the case at bar, argued that the clinic’s practices violated their liberty interest in raising their children, the Sixth Circuit rejected this argument, noting that there was a fundamental difference between a birth control clinic which dis*68pensed contraceptive devices and family planning information only at the request of an interested individual, and the fact patterns of cases such as Meyer v Nebraska (262 US 390, supra) and Pierce v Society of Sisters (268 US 510, supra), where a State was either requiring or prohibiting some activity. In support of its holding, the court reasoned:
"The State of Michigan, acting through the Center and defendants, has imposed no compulsory requirements or prohibitions which affect the rights of the plaintiffs. It has merely established a voluntary birth control clinic. There is no requirement that the children of the plaintiffs avail themselves of the services offered by the Center and no prohibition against the plaintiffs’ participating in decisions of their minor children on issues of sexual activity and birth control. The plaintiffs remain free to exercise their traditional care, custody and control over their unemancipated children * * * "Since we find no unconstitutional interference with the plaintiffs’ rights as parents, there is no need to consider whether a 'compelling’ state interest was involved. For the same reason, it is not necessary to determine whether parental rights 'outweigh’ those of their minor children” (Doe v Irwin, 615d, supra, at 1168-1169). The majority’s assertion that Doe v Irwin (supra) is distinguishable because the petitioners at bar are compelled to send their children into an environment (i.e., the public high schools) where condoms are available is without legal merit. Although placing a health resource room in each high school where condoms and educational information about their use are available may make condoms more readily accessible to teenagers, the fact that students are in closer proximity to a potential source of contraceptive devices does not change the fundamentally voluntary nature of the program. While condom distribution programs are in place in the high schools that the petitioners’ children attend, nothing compels the petitioners’ children to participate in the program. Moreover, while the petitioners argue that to expose their children to an environment where condoms are available undermines their efforts to impart their religious and moral values to their children, it should be noted that the instructional component of the HIV/AIDS curriculum takes pains to stress, in accordance with State regulations, that abstinence is the most appropriate and effective premarital protection against AIDS (see, 8 NYCRR 135.3 [b] [2]; [c] [2] [i]), and that among the *69reasons for abstinence is adherence to the values of one’s parents and one’s religion.
The constitutionality of condom distribution to minors without parental consent has clearly been established by our highest courts (see, Carey v Population Servs. Intl., 431 US 678, supra; Doe v Irwin, 615d 1162, supra). State and Federally funded programs providing for condom distribution to minors without parental consent have been in effect for years. The significant issue in this case is whether voluntary condom distribution to minors in public schools so differs from accepted similar Federal- and State-funded programs as to be violative of constitutionally protected parental rights. Stated differently, do parents have constitutionally protected rights in regard to school condom programs which do not exist in regard to State and Federally funded clinics and in spite of a minor’s ability to purchase such devices readily at public vending machines? Since I do not view the distribution of condoms as a health service, but rather as a practical accessory to effectuate a health education program, I find no rational basis for discerning either statutory violations or a violation of constitutionally protected parental rights resulting from the distribution of these nonintrusive devices, merely because preventive health concerns affecting children are being addressed in public schools.
Although the majority correctly points out that children are compelled to attend school (as contrasted to health clinics), it fails to consider that they are not compelled either to seek or accept the distribution of condoms, as it remains a purely voluntary program. Moreover, the distribution of condoms in the public schools is entirely consistent with the accepted role schools have traditionally assumed in regard to health education, i.e., preventive health care. Clearly, it is not the proper role of the educational system to ignore reality. Despite the fact that teenagers are instructed that abstinence is the most effective method of preventing the transmission of the HIV virus, many teenagers are nevertheless sexually active, and must be advised that condom use is imperative. Public schools, with their unique ability to reach large numbers of teenagers, can play a significant role in urging the benefit of abstinence, in increasing AIDS awareness, and in alerting those students who are sexually active of the importance of using condoms in order to reduce the risk of disease. Moreover, the condom distribution component of the educational program makes condoms more readily accessible to those students who are *70already sexually active and might otherwise engage in unprotected intercourse. In view of the public policy interest in slowing the spread of the HIV virus, the condom distribution program is not inconsistent with the educational mission of the public schools.
It must also be recognized that at the heart of the petitioners’ argument that the condom distribution program violates their right to raise their children as they see fit is their belief that the program constitutes an endorsement of teenage sexual activity because it tells their children, "in actions far louder than words that they are free to disobey their parents’ express instructions”. However, this is but a variation upon an argument which was rejected by the Supreme Court in Carey v Population Servs. Intl. (431 US 678, supra). As previously noted, Carey involved the constitutionality of a New York statute which prohibited the sale or distribution of contraceptives to minors under the age of 16. The State of New York argued that significant State interests were served by restricting minors’ access to contraceptives because free availability to minors of contraceptives would lead to increased sexual activity among the young, in violation of the policy of New York to discourage such behavior. In rejecting this argument, the plurality opinion noted that the State’s argument was in essence that "minors’ sexual activity may be deterred by increasing the hazards attendant on it”, but that such an argument could not be taken seriously because " '[i]t would be plainly unreasonable to assume that [the State] has prescribed pregnancy and the birth of an unwanted child [or the physical and psychological dangers of an abortion] as punishment for fornication’ ” (Carey v Population Servs. Intl., 431 US 678, 694, 695, supra, quoting Eisenstadt v Baird, 405 US 438, 448).
Moreover, Justice Stevens, separately concurring in part in the plurality opinion in Carey, aptly observed:
"Common sense indicates that many young people will engage in sexual activity regardless of what the New York Legislature does; and further, that the incidence of venereal disease and premarital pregnancy is affected by the availability or unavailability of contraceptives. Although young persons theoretically may avoid those harms by practicing total abstention, inevitably many will not. The statutory prohibition denies them and their parents a choice which, if available, would reduce their exposure to disease or unwanted pregnancy. *71"The State’s asserted justification is a desire to inhibit sexual conduct by minors under 16. Appellants do not seriously contend that if contraceptives are available, significant numbers of minors who now abstain from sex will cease abstaining because they will no longer fear pregnancy or disease. Rather appellants’ central argument is that the statute has the important symbolic effect of communicating disapproval of sexual activity by minors. In essence, therefore, the statute is defended as a form of propaganda, rather than a regulation of behavior. "Although the State may properly perform a teaching function, it seems to me that an attempt to persuade by inflicting harm on the listener is an unacceptable means of conveying a message that is otherwise legitimate. The propaganda technique used in this case significantly increases the risk of unwanted pregnancy and venereal disease” (Carey v Population Servs. Intl., 431 US, supra, at 714-715). Similarly, at bar the petitioners seek to force the Board of Education to, at minimum, allow parents to "opt out” their children from participation in the program. If an opt-out feature is adopted, however, students will no longer be able to request condoms anonymously. The respondents have reasonably concluded that this loss of confidentiality would deter student participation in the condom distribution program, thus reducing its effectiveness. In the years following the Supreme Court’s decision in Carey v Population Servs. Intl. (431 US 678, supra), the spread of AIDS has reached alarming proportions giving rise to a compelling State interest to halt the growth of the epidemic. Clearly, many parents, such as the petitioners, are seeking to provide guidance to their children and to protect their health and morality. The majority overlooks the unfortunate reality that many children lack such interested parents. Many children have no parents to provide guidance and discipline or who are even available to consent to the child’s participation in the program should an "opt out” be mandated. Since the consequence of contracting AIDS is death, providing practical protection against the spread of the virus which causes it, to a high-risk population, in my view, outweighs the minimal intrusion into the parent/ child relationship of the more protected, more fortunate portion of the adolescent population of New York City.
Consequently, I would affirm the order and judgment appealed from.
While the majority seems to suggest that the dictates of the common-law rule could be satisfied by allowing parents to opt their children out of the voluntary program, this position is inconsistent. If the condom distribution program is indeed a health service as contemplated by Public Health Law § 2504 and the common law, students under the age of 18 may participate in the program only with parental consent. A parent or guardian’s failure to "opt out” is not the equivalent of consent.