The notion of “parental rights” is something of a misnomer. By saying so, as I have in a previous column, I attract angry responses from folks who presume I therefore advocate a brave new world of state-run child rearing facilities. But of course, that’s nonsense.
My argument is that the rights at stake are those of the child—their right to their education, their health care, their religious liberty. In most cases, we grant to parents the custody of those rights. We allow parents to make those decisions on behalf of their children, because usually they are the people best situated to make them. In most situations, they have both the information and motivation to act in the best interests of the child.
But that position as custodian of rights isn’t all-encompassing. Courts have certainly found it to be broad, including the ability to decide most educational matters. But children must be educated, even if parents may determine that education should end in their early teens, as was held to be part of Amish religious rights in Wisconsin v. Yoder, 406 U.S. 205 (1972). A parent cannot send a child to work in place of that education, nor may that parent grant permission for a child to work in a dangerous environment, such as down a coal mine or in a textile factory. While parents may consent to their children marrying below age eighteen, all states have a minimum age beneath which a parent may not consent on a child’s behalf to marriage.
We accept that in most cases a parent acts as guardian for the rights of a child and exercises those rights in the child’s best interests. But there are situations, in particular when it comes to the health and safety of the child, where parental choice is not supreme, and, instead, the state must act as the custodian of the child’s rights. In Prince v. Mass., 321 U.S. 158 (1944), the U.S. Supreme Court upheld a Massachusetts law that prohibited boys under twelve or girls under eighteen from selling literature in the public streets. A Jehovah’s Witness had brought a nine-year-old girl for whom she was the guardian with her to distribute literature. In ruling that the state had the right to restrict such child labor, even in the face of parental opposition, Justice Rutledge wrote “[p]arents may be free to become martyrs themselves. But it does not follow they are free, in identical circumstances, to make martyrs of their children before they have reached the age of full and legal discretion when they can make that choice for themselves.” Id. at 170.
Where a child’s health is at stake, there is also a strong argument that parental power to determine treatments is not without limits. A Jehovah’s Witness mother may refuse a blood transfusion for herself; she may not, however, require that decision for her minor daughter. Doctors can request court orders to act contrary to the parent’s wishes, even if the child expresses agreement with the parent. The wishes of the child will be considered, with a weight given to them based on the child’s level of maturity. However, the state retains the ability to order treatment in the child’s best interests.
Similarly, in abortion law, where many states require parental consent for minors to terminate a pregnancy, the Supreme Court has ruled that there is a constitutional right for that minor to be able to demonstrate competence to make the decision on her own, without requiring a parent to consent or indeed to even be notified. Bellotti v. Baird, 443 U.S. 622 (1979). This is the notion of the mature minor.
The idea is that development to adulthood is a process, not something that occurs instantaneously on one’s eighteenth birthday. Some decisions, such as whether to become a mother, are of such critical importance to a teenage girl’s future that so long as they demonstrate themselves capable of making the decision, the choice should be theirs, not that of their parents.
The Center for Inquiry (CFI) believes the same argument applies to vaccinations.
Every medical authority agrees that vaccination is a critical part of disease prevention, that it has saved millions of lives worldwide, and that the incredibly low risks of receiving a vaccine are dramatically outweighed by the benefits of immunity. As the Pfizer vaccine is approved for twelve-to-fifteen-year-olds, American teens are being given the chance to receive immunity to COVID-19, just as they can to a host of other diseases, from measles to whooping cough to polio.
The best solution possible is that parents take their children to be vaccinated, happily granting consent to this process. But that isn’t happening everywhere, especially as misinformation about the vaccines is spread both online and through media outlets such as Fox News. Teenagers may want to receive a vaccine but are unable to do so because of lack of parental consent. Those children suffer. They may unnecessarily contract COVID-19 or other vaccine-preventable diseases, or suffer worse symptoms, which may result in their long-term disability or even their death. Even putting all of that aside (as if one could put a risk to one’s life and well-being aside), by remaining unvaccinated they may not be able to attend school or may be prevented from fully participating in extracurricular activities.
If a child is mature enough to make that decision, we at CFI believe they should be able to do so. That’s why we are exploring the possibilities of bringing a lawsuit, representing a mature minor who wants to be vaccinated without his or her parents’ consent or representing a doctor who wants to provide such vaccinations. If you know of anyone in that position, please contact CFI’s legal department at [email protected]. We will treat every communication with the utmost confidentiality.