Alan Phillips, J.D.
A current California bill, AB 499, would “allow a minor who is 12 years of age or older to consent to medical care related to the prevention of a sexually transmitted disease.” That is, children as young as 12 will be able to get a Gardasil or other STD vaccine without their parents’ knowledge or consent if this bill passes. Disturbingly, North Carolina has a much broader child consent law already on the books: “Any minor may give effective consent . . . for medical health services for the prevention . . . of venereal disease and other [reportable] diseases…” I call these laws “Stealth Vaccine Laws” because they provide for the administration of vaccines without the word “vaccine” or “immunization” appearing in the law. Thus, they may slip under the radar of anti-vaccine activists doing electronic searches forvaccine bills and laws using those terms.
There are serious legal and moral problems with stealth vaccine bills and laws. First, they violate parents’ fundamental Constitutional rights. In Troxel v. Granville, 430 U.S. 57 (2000), the U.S. Supreme Court held that “the Constitution permits a State to interfere with the right of parents to rear their children only to prevent harm or potential harm to a child.” Troxelrequires a “threshold showing of harm” that is lacking in the California bill and North Carolinalaw. Troxel also tells us that parents are presumed to be fit and to make decisions that are in their children’s best interests. So, giving the children of every parent in the state the ability to consent to medical treatment at any time amounts to the state declaring that all parents are unfit regarding those matters to which the children are given authority to consent.
Under Troxel, parents are presumed to be fit unless there is a showing of unfitness. So, child consent laws violate the due process clause of the 14th Amendment, unless they include the requisite “threshold showing of harm.” As a practical matter, this means that there must be an emergency, a significant harm or risk of harm before someone may make decisions on behalf of a child without a parent’s consent. Medical and other professionals already have this authority. Neither children nor parents have to consent to a child’s receiving treatment in a medical emergency where immediate intervention is needed to save the child’s life or avert serious harm.
Proponents of child consent laws argue that there are some children who need the ability to consent to medical care, children whose parents can’t or won’t take proper care of them. But there are already measures in place to help children in those situations. State workers in Child Protective Services (CPS) and Social Services may seize custody of children when necessary to protect them from severe physical and/or emotional harm. And where parents are unfit, theirfitness can be challenged and their parental authority given to other persons or agencies that are capable of exercising proper care of the children when they are not. 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 rather convenient way for the pharmaceutical industry to bypass parents to administer vaccines and other therapies directly to children (who are not likely to say ‘no’ to a doctor). And while parents may opt out of unnecessary medical treatments for their child that they can’t afford, child consent laws ensure payment for services every time–from the state.
There is a second, narrower Constitutional issue in states that offer a religious exemption to immunizations (every state but MS and WV). 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. It doesn’t matter that few parents may actually be affected or that some children may accurately report their parents’ religious objections to vaccines. The fact that the law creates a situation reasonably likely to result in a Constitutional violation is sufficient reason for a court to rule that the law is unconstitutional. (For that matter, in states that offer philosophical or medical exemptions, state exemption rights of the parents could be violated as well.)
Which brings us to an important point: A law is not officially “unconstitutional” merely because someone says so, or even if they present a compelling legal argument, as there is virtually always someone with an opposing view. Only a court may officially decide if a law is unconstitutional. Unfortunately, the practical consequence of this is that states can and sometimes do enact laws that turn out to be unconstitutional, and they can do that whether legislators know of that possibility in advance or not. Once a law is enacted, it is “good law”–fully enforceable–unless and until it is repealed by the legislature, or deemed unconstitutional or otherwise uneforceable by a court. This means that pro-vaccine lobbyists can support the passage of unconstitutional bills that are profitable to the pharmaceutical industry, and they may succeed–unless we remain vigilant and successfully oppose them. The same is true for any other industry, of course. Big business can roll right over the Constitution, and get away with it to the extent that the citizens and legislatures allow it. This is something that should cause every one of us great concern.
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 and don’t even truly own their possessions (technically, their parents do). So, giving children authority for medical decision-making simply doesn’t make sense. Child medical consent laws not only put decision-making authority in the hands of those not able to exercising it responsibly, they do so by taking that authority away from the mature adult parents who are much more capable of exercising it responsibly. These laws are intrusive, an example of overreaching by the state into private family lives, a violation and interference with parents’ fundamental right to raise their children. If present laws leave some children’s medical needs unaddressed, let’s fix those laws. But taking authority away from all mature adult parents and giving it to immature children is irrational–a step that could only make sense only from the narrow perspective of those who stand to profit from it.
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 the pharmaceutical industry (among others) supports legislation to further its own bottom line–that’s the business of business. Health rights are not stagnant. We are either acting proactively to expand them, or we are passively allowing them to disappear. 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. Meanwhile, I’m available to assist with U.S. vaccine rights and legislative issues.
Sources for this story include
 California Assembly Bill No. 499,
 N.C.Gen.Stat. § 90-21.5. Minor’s consent sufficient for certain medical health services,
 Troxel v. Granville, 530 U.S. 57 (2000),