First, they violate parents’ fundamental Constitutional rights. The Court has stated: “Most children, even in adolescence, simply are not able to make sound judgments concerning many decisions, including their need for medical care or treatment. Parents can and must make those judgments.”[3] Under the 14^th Amendment’s due process clause, parents are deemed to be fit absent a showing that they are unfit—not unlike the “innocent until proven guilty” concept—so if a state gives away parental authority, it is deeming parents to be unfit for the authority given away, in violation of their Constitutional rights.[4] As a practical matter, there must be an emergency, a significant harm or risk of harm before someone may make decisions on behalf of a child without the parent’s consent, and even then, the person doing so must be another qualified adult, and not the child him or herself.

Proponents of these child consent laws argue that some children need the ability to consent to medical care, children whose parents abuse them or who won’t give them take proper care. But there are other laws in place to help children in these situations already. Doctors can already treat children in emergencies without parental consent. Child Protective Services (CPS) agencies can take custody of abused children immediately and authorize any necessary medical care. In non-emergency situations where parents are suspected of being unfit, their fitness can be challenged in court and their parental authority given to other persons or agencies that are capable of exercising proper care of the children when necessary. If current laws are letting some children slip through the cracks, then by all means let’s take steps to fix the problem, but enacting laws that violate the Constitutional rights of all parents is not a proper solution. It is, however, a convenient way for doctors and the pharmaceutical industry to bypass parental authority to administer vaccines and other therapies directly to children, to the financial benefit of that industry. And while parents may not all be able to afford payment for medical services, child consent laws ensure payment every time—from the state—the tax revenue from other parents and citizens.

There is a second, narrower Constitutional issue. For legal purposes, a child’s religious beliefs are deemed to be that of the parents. So, a law that would allow a child to consent to an immunization would violate parents’ First Amendment “free exercise” of religion rights in any state that offers a vaccine religious exemption (every state except MS and WV). These child consent laws also conflict with parents’ right to exercise a state philosophical exemption in states that have this such as California.

Finally, child consent laws also fail the common sense test. Children, by definition, lack capacity—the judgment and maturity—to make important decisions for themselves. For this reason, they can’t enter into binding legal contracts, can’t join the armed services, can’t smoke or drink, and don’t even own their possessions (technically, their parents do), unless they go through a judicial process in which they are judged to have adult maturity on a case-by-case basis. So, giving children authority for medical decision-making simply doesn’t make sense. Child medical consent laws put decision-making authority in the hands of those not able to responsibly exercising it by taking it away from the parents who can. This is irrational, a step that could make sense only from the viewpoint of those who stand to profit from it.

Folks, unless each one of us becomes legislatively active, more laws providing for the administration of vaccines and other unnecessary medical treatments will be enacted, because it is profitable for doctors and the pharmaceutical industry to do so. Health rights are not stagnant. We either act proactively to expand them, or we will be passively allowing them to diminish until they disappear completely. There is no safe middle ground! Join the  NVIC Advocacy Portal and the Pandemic Response Project to stay informed and be active in vaccine legislative issues. In the meantime, go to your state legislature’s website to see if there are any stealth vaccine bills or laws in your state. If there are, contact your state representatives with your objections, and alert others to do the same. If you live in CA, NC or any other state that has such a law, contact me to discuss how we can work together to change it! Meanwhile, I’m available to assist with other vaccine exemption and legislative issues around the U.S.

Alan Phillips, J.D. is a nationally recognized legal expert on vaccine rights issues. He helps clients, activists and other attorneys nationally with vaccine rights issues and legislative initiatives. Learn more at www.vaccinerights.com

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[1] California Family Code 6926, http://chili.ohii.ca.gov/content/family-code-6926

http://www.leginfo.ca.gov/pub/11-12/bill/asm/ab_0451-0500/ab_499_bill_20110215_introduced.pdf

[2] N.C.Gen.Stat. § 90-21.5. Minor’s consent sufficient for certain medical health services,

http://www.ncga.state.nc.us/EnactedLegislation/Statutes/HTML/BySection/Chapter_90/GS_90-21.5.html

[3] Parham v. J.R., 442 U.S. 584, 603 (1979)

[4] See, e.g., Troxel v. Granville, 530 U.S. 57 (2000),

http://www.law.cornell.edu/supct/html/99-138.ZS.html