CHILD CONSENT LAWS: CONSTITUTIONAL?
No, and Here’s Why
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When bills are introduced to give children the right to consent to vaccines, we should be concerned for many reasons. California and North Carolina already have laws that give minor children the ability to consent to vaccines and other medical treatments. Here’s an overview of the main issues.
California’s Family Code 6926 allows minors 12 and older to consent to medical care “related to the prevention of a related sexually transmitted disease.” Disturbingly, North Carolina has an even broader law: “Any minor may give effective consent . . . for medical health services for the prevention . . . of venereal disease and other [reportable] diseases…” These “Stealth Vaccine Laws” give children the right to consent to vaccines without using the word “vaccine” or “immunization,” thus evading electronic searches for laws using those terms.
There are serious legal, moral and health problems with these laws. First, laws are considered to be constitutional and thus enforceable unless a court says otherwise. If all we had to do was declare a law to be unconstitutional to make it so, there would be no constitutional laws. Furthermore, you can’t challenge a law’s constitutionality in court unless you’re directly affected by it. Courts don’t address hypothetical matters; there has to be a real conflict with someone adversely affected before a court can address the concern. Finally, if you get into court, you have to overcome a corrupt legal system that will rule in favor of pharma regardless of the real science and law if they don’t support pharma. Like it or not, real science and law don’t apply to the elite. All of these things must be addressed to successfully deal with these laws. As legislatures are also corrupt or corruptible-on-demand by pharma elite, preventing passage of unconstitutional child consent bills is equally challenging.
Meanwhile, back to the law, these statutes violate parents’ fundamental Constitutional right to parent their children. According to the U.S. Supreme Court: “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.” Under the 14th Amendment’s due process clause, parents are deemed to be fit absent a showing that they are unfit. This is similar to the “innocent until proven guilty” principle we apply to people accused of a crime. So, if a state legislature enacts a statute giving away parental authority, it is essentially saying that all parents in the state are unfit without the Constitutionally-required “showing” of unfitness, in violation of their 14th Amendment Constitutional rights. Parental authority can only be lawfully delegated to a non-parent in an emergency or with a hearing presenting evidence that a particular parent is unfit; and even then, the person to whom an unfit parent’s authority is transferred must be a qualified adult—not a minor child.
Proponents of child consent laws disingenuously argue that children need the ability to consent to medical care in emergencies or when their parents fail to see to their medical needs. But other laws already allow doctors to treat children in emergencies without parental consent, and give Child Protective Services (CPS) agencies authority to take custody of abused or neglected children and authorize any necessary medical care. In non-emergency situations where parents are accused of being unfit, their fitness can be challenged in court and, when necessary and appropriate, courts can give parental authority to other qualified adults. If inconsistent enforcement of those laws results in some children slipping through the cracks, then the enforcement of those laws needs to be revised, not new laws created that violate all parents’ Constitutional rights. However, if legislators are seeking a convenient way for healthcare officials to bypass parental authority to administer vaccines and other treatments directly to children, thereby avoiding those pesky “anti-vaxxer” parents, perhaps such illegal laws are a “solution.” But they don’t solve any legitimate problems.
Giving medical decisions to children gives those dispensing the medical care an opportunity to manipulate the children. Due to their relative lack of maturity and experience, children are vulnerable to pressure from adults generally, healthcare professionals even more so. This extreme imbalance weighs heavily against the child, as medical professionals won’t inform a child about the possibility of injury or death from a vaccine, nor the fact that such risk occurs from the moment of vaccination, while the risk of infectious disease is only a hypothetical future risk with only a very minimal risk of permanent injury or death if a disease is contracted. Healthcare professionals have a strong, dangerous bias and a powerful unfair advantage over children. Child consent laws are seriously flawed.
There are other Constitutional concerns. 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 the parents’ First Amendment "free exercise" of religion rights to refuse vaccines for their children on religious grounds, when parents hold qualifying religious beliefs. Parents also have a Constitutional right to exercise a medical exemption for their children where a child has a qualifying medical condition. With both religious and medical exemptions, the federal Constitutional right supersedes or “trumps” the conflicting state child-consent laws. This means anyone administering a vaccine based on a minor child’s consent only, when a parent would exercise a religious or medical exemption, is violating the parents’ Constitutional rights. That would constitute a state license violation for any licensed healthcare professional involved in the administration of the vaccine, as licensure requires adherence to state ethical requirements that prohibit violating state and federal laws.
Finally, child consent laws fail the commonsense test. Children are developmentally immature and thus legally incompetent by definition. They can’t enter into legal contracts, join the armed services, smoke cigarettes, or drink alcohol, for example. Children don’t even own their own possessions—technically, their parents do. Older minor children can requests emancipation on a case-by-case basis, and if a court finds a child to possess a sufficient level of maturity and circumstances warranting the need, a court can emancipate a minor child, which means they may exercise most adult rights. Otherwise, children can’t legally make important decisions for themselves—except in these insane child consent laws.
I am not opposed to legislative activism, but I respectfully point out that past decades or ever-greater activism work has left us with fewer rights today than in years past. Our ever-greater activism work has always been met, overall, with an *accelerating* pharma agenda, a net gain for pharma despite the occasional win for us. We’re missing something fundamental, and not by accident. A real solution has been hidden from us. Stay tuned for more about this critical missing piece to our activism work.
A draft legal brief analyzing North Carolina’s child consent law in greater depth is available on request.
Alan Phillips, J.D.
Vaccine Rights Legal Expert
Have an exemption question? Contact Alan at email@example.com. Some questions may be addressed in future articles (with anonymity).
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Alan Phillips, J.D., is the nation’s leading vaccine exemption legal expert. Alan is the only person who’s ever worked fulltime as an attorney with exemptions, who’s worked in all three dozen different exemption contexts and sub-contexts in the U.S. (indeed, the only one who can name ½ of them), and who’s worked with clients, attorneys, legislators, and activists nationally concerning exemption rights for over two decades. For information about Alan’s products and services, see vaccinerights.com.
 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
 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
 Parham v. J.R., 442 U.S. 584, 603 (1979), https://caselaw.findlaw.com/us-supreme-court/442/584.html
 See, e.g., Troxel v. Granville, 530 U.S. 57 (2000), https://www.supremecourt.gov/opinions/boundvolumes/530bv.pdf, pdf p. 109, volume p 57.