Parental Rights Bills Forgot Children Have Rights, Too

And if parental rights are fundamental, they should not stop being fundamental the moment other parents disagree with the parental rights movement leaders.

Three Houston mothers just handed us a model that those of us who believe in both parental and children’s rights should adopt.

Emily Roth, Audrey Rosa Nath, and Sanjam Kaur Sohal sued Texas over the Ten Commandments posters state law now requires in every public classroom, and they didn’t reach for a First Amendment claim that’s already lost twice in the Fifth Circuit. They sued under the Texas Religious Freedom Restoration Act and, more pointedly, under Proposition 15, the “Parental Rights Amendment” Texas voters approved last year, which guarantees parents “the fundamental right to exercise care, custody, and control” of their own children, including “the right to make decisions concerning the child’s upbringing.”

Although a judge declined to block the posters before school started, a hearing on a longer injunction is set for today, August 17. Win or lose, the lawsuit makes a point that should outlive the case: the same language conservative legislatures wrote to give parents veto power over vaccines, books, and health care also gives parents standing to say no to actions that states take, such as a state-mandated religious display that imposes one religious belief on all children.

In a matter of a few years, state laws are being proposed and cases are being taken to the Supreme Court built on the premise that “parental rights” are sacrosanct, non-negotiable, and immune from anything short of strict scrutiny.

As a child advocate, I don’t accept that premise. Children are rights-bearing people, not appendages of whatever their parents or the state decides for them, and their own interests shouldn’t disappear into an absolutist veto held by either one.

However, if legislators and this Supreme Court are going to build law on that premise and to treat children with legislative and judicial “blindness,” it doesn’t get to apply parental rights selectively. If it’s a foundational tenet, then the rule should apply to all parents. Otherwise, parental rights are nothing more than what legislators want them to be.

A useful principle should be simple: parental rights do not give one group of parents authority over everybody else’s children, and parental authority cannot mean that children themselves have no rights at all.

To protect all parents and children themselves, the Houston parents have hit upon a strategy that we should consider.

The Clause the Parental Rights Crowd Has Decided to Suddenly Drop

Here's what is most stunning about the "close to absolute" and sweeping nature of some of the “parental rights” bills being introduced.

For over a decade, the federal Parental Rights Constitutional Amendment carried, at the very least, an explicit protection of children’s lives. Rep. Trent Franks’s (R-AZ) 2012 version, H.J.Res. 110, and Rep. Debbie Lesko’s (R-AZ) 2022 version, H.J.Res. 99 each closed with the same line:

This article shall not be construed to apply to a parental action or decision that would end life.

That would seem to be the bare minimum, but at least it was included in these filed constitutional amendments.

Then, in September 2025, Rep. Mary Miller (R-IL) introduced the latest version, H.J. Res. 127. It kept the sweeping parental rights language, the school-choice section, and the strict scrutiny standard – all problematic for reasons I have highlighted in previous blogs.

However, even worse is what is now missing. Miller’s bill dropped the language protecting children from parental actions or decisions that would end their lives.

So much for the parental movement claiming to be “pro-life.”

The amendment’s supporters include stalwarts of the parental rights movement, such as the Alliance Defending Freedom, Family Research Council, and Moms for Liberty. These groups apparently also support a deliberate decision to no longer even protect the lives of children.

Legal scholar Samantha Godwin explained exactly why absolutist parental rights frameworks are so dangerous — not because parents do not matter, but because law cannot be built around idealized parents:

When evaluating the extent of parents’ legal rights, we should not merely consider how ideal parents exercise their power to provide the effective care and guidance children need. The extent of what the law enables imperfect parents to do to their children must also be taken into account... Thinking only in terms of how the best parents conduct themselves is a mistake; it is also necessary to account for what the worst parents can get away with.

The Fight Is Also Over the Default

Every one of these fights must also address the underlying design questions: how sweeping is the language? When the state builds in an accommodation, does it default to inclusion with an opt-out, or exclusion with an opt-in? That choice determines who actually gets hurt, and it is a fundamental decision that often goes unnoticed.

When Texas’s SB 12 took effect this past September, the statute made clear that health care services for a child require parental consent, with an exception only when “necessary to further a compelling state interest, such as providing life-saving care.” School nurses across the state’s more than 1,200 districts didn’t know if that covered a Band-Aid, since that isn’t “life-saving care.”

The Texas Education Agency had to issue emergency guidance about a week later clarifying that general caretaking — Band-Aids, ice packs, checking a forehead for fever — doesn’t require a signed form. That guidance still didn’t touch other circumstances: for example, a broken bone or a serious injury isn’t “general caretaking,” and it isn’t obviously “life-saving” either — at least not until it’s too late for that distinction to matter.

Idaho’s own version of the law produced the same story, with a face attached to it.

“We ended up with a young man whose femur had been broken, and they couldn’t get ahold of the young man’s parents, so they didn’t treat him,” Idaho Republican State Rep. Barbara Ehardt — the law’s original sponsor — told reporters this spring, describing exactly the kind of case her own bill was never supposed to create.

Idaho’s law also meant that counselors on suicide hotlines could not serve teenagers without parental consent — until this spring, when Idaho passed an emergency patch (more on that, and its limits, below).

Without exceptions to sweeping parental rights laws, a parent who sexually or physically abuses their child can retain the right to make medical decisions and access the medical records of that child. That’s the sharpest version of the default problem this whole piece is about: institutions built to defer to parents first and verify only later.

In April 2025, Dr. Eithan Haim — a pediatrician who worked at Texas Children’s Hospital, testifying as a majority witness at a House Judiciary Subcommittee hearing on parental rights — told the committee that in his trauma experience, he treated dozens of children who’d suffered intentional starvation, cigarette burns, and finger amputations, and would find their abusers in the child’s hospital room the very next day.

Dr. Haim said he stopped reporting those cases to Child Protective Services (CPS} because he never saw evidence it actually protected children. Although Haim went to that hearing to defend parental authority, what he actually described was what a default of deference to parental rights costs the children who need protection from their parents the most.

As for other defaults, in Montgomery County, Maryland – the school district at the center of the Supreme Court’s decision in Mahmoud and where my children attended school – the district was ordered to notify parents before using specific storybooks and let them excuse their kids on request. This decision has had a chilling effect on teaching kids about acceptance and inclusion.

But, after the decision, the district reported in October that out of roughly 160,000 students, 43 families had filed 58 opt-out requests. That’s under 0.03%.

The lesson isn’t just that the sky didn’t fall. It’s that an inclusive default matters and serves almost everyone, while still “protecting” the handful of families who demanded something different. The default is a real win for kids — the curriculum stayed intact for the 99.97% of children who wanted the books, and the families who desired an accommodation got one without a fight over every book, every kid, every year.

As Harvard professor Cass Sunstein, pointed out in his book, Nudge, defaults aren’t neutral. Most people stick with whatever the system hands them, which means whoever sets the default is effectively guiding the choice for most people. These parental rights bills understand that lesson perfectly. They repeatedly apply it selectively, and in a manner that leads to restrictions on children’s access to things like books or health care services.

What these parental rights bills also get repeatedly wrong is that parental disagreement is normal, but they fail to take that disagreement seriously. Legislatures often treat parental rights as grounds to tear down a shared institution for every other family’s kid, instead of building an accommodation for the one family that wants something different.

Rather than banning books, closing libraries, gutting curriculum, abolishing school-based health services, denying teenagers access to suicide hotlines, reducing immunization rates, and defaulting to no services, legislatures should take a different approach.

Use Mahmoud to Take Down the Ten Commandments, Not Just State RFRAs

The point is not that inclusion is automatically the right default. It’s that a default only counts as fair if a real opt-out exists for a family and a child that wants or needs something different. A library book can be declined by one family or student while everyone else keeps access – that’s what makes Montgomery County’s 0.03% work.

In contrast, even if you completely ignore the fact that this violates the Constitution’s separation of church and state and the forcing of one religion on all children, the requirement that the Ten Commandments poster be in every Texas classroom cannot be declined by families and children. There’s no mechanism to exempt children from classrooms for an entire school year.

It’s the same failure mode Idaho’s original 2024 parental rights law produced, before its legislature was forced to spend two years patching it — denying kids access to the suicide hotline and other barriers to health care with no genuine way to protect kids from harm.

Here’s the application nobody’s tested yet. Mahmoud didn’t establish a blanket rule that any unavoidable exposure to objectionable content triggers strict scrutiny — the case turned on young children, an explicit curriculum, and a district that didn’t offer an opt-out.

But that same fact pattern should be applied to a permanent classroom display. There’s no notice, no workaround, and no opt-out at all, for an entire school year, for the parents of children who can’t opt-out of having their children subjected to the Ten Commandments in all classrooms.

Every state that copied Texas’s SB 10, which mandated the Ten Commandments posting in every classroom, creates a situation in which every parent whose faith doesn’t match the King James numbering on that poster can make a Mahmoud argument, even though no court has ruled on it yet.

Somebody should file it.

Mahmoud is the tool that’s most available because this Court chose to build the doctrine on parental authority rather than on the student’s own rights (something I have argued is “judicial blindness” to children).

But it’s worth saying plainly: the kids sitting under that poster have a stake in it that’s theirs as well, and not just their parents’. Tinker v. Des Moines held decades ago that students don’t “shed their constitutional rights at the schoolhouse gate”: a recognition this Court has been quietly writing out of the law even as it expands what parents can claim on a child’s behalf. Using Mahmoud to win doesn’t mean forgetting that a child’s own dignity is what’s actually on the line.

That distinction is central. Sometimes parents need protection from government. Sometimes children need protection from government. Sometimes children need government protection when the threat comes from a parent’s decision. And sometimes parents and children together need protection from the state. A legal doctrine that recognizes only “parent versus government” cannot adequately address all four in the best interests of children.

If “Parents Direct Their Child’s Health Care,” Let Parents Keep School-Based Health

Moms for Liberty and allied groups have also spent this year trying to shut down school-based health centers, the on-campus clinics that provide vaccinations, mental health counseling, vision and dental screening, and basic care to kids whose families can’t easily leave work for a doctor’s appointment.

That’s their choice to lobby for. But notice what they’re actually doing: using state power to take an option away from every other parent who wants it.

Turn it around. A parent’s decision to sign a blanket consent form at back-to-school registration, keeping their kid enrolled in the on-campus clinic, is an exercise of their fundamental right to support their child’s access to health care. A district or state that closes the clinic anyway is overriding the choice of every parent who made one.

Restore parental control cuts both ways, or it isn’t really about parents. It is really just about ideology.

Books: Demand Access, Not Just the Right to Remove One

Curriculum transparency portals exist in a growing number of districts specifically so parents can flag and remove books. That same infrastructure could and should carry a parent’s request to add a book back, with the identical notice-and-review process.

And the legal argument underneath outright book bans is weaker than it looks: a full removal isn’t narrowly tailored if a permission-slip opt-out protects an objecting family’s rights while preserving access for every other parent’s child who do not object to the book.

If the parental rights movement wants to apply a “least restrictive means” test to government, then it should not burden the vast majority of parents and children with book bans. Instead, the practice should mirror Montgomery County’s opt-out rate under Mahmoud, which was under 0.03%.

An inclusion default doesn’t produce chaos. A removal default just extends one family’s objection to every other family’s kid.

This isn’t only a parents’ fight, either. The Supreme Court held decades ago in Board of Education v. Pico that students have their own First Amendment interest in access to ideas in a school library: a right that belongs to the kid, not a delegation from the parent. A ban erases that interest for every student in the building, not just the objecting family’s.

That is the distinction the current parental rights debate repeatedly misses. There are rights parents exercise on behalf of their children, and there are rights that belong to children themselves. They are related, but they are not interchangeable.

It also means parents whose own families look like the Houston plaintiffs’ — multi-faith, LGBTQ-headed, disability-affected, blended — have a live parental rights claim to books that reflect their kid’s actual life, on the same “diversity within the family” theory conservative litigants have used to challenge what they call ideological gag orders.

The Affirmative Side: Undue Burden Cuts Both Ways

None of this has to stay defensive — and it doesn’t need a courtroom to work. To be clear about what kind of claim this is: Troxel-style parental rights doctrine generally protects against state interference, and nobody is suing their way to a bigger Child Tax Credit under the Fourteenth Amendment. But as political and statutory advocacy, the state’s own logic holds: if a state won’t infringe on a parent’s “fundamental right to exercise care, custody, and control” of a child — including decisions about that child’s upbringing — lawmakers should be held to that standard when their own paperwork, funding cuts, and structural gaps do exactly that.

What good is a “fundamental right to direct your child’s upbringing” if public policy systematically abandons families and deprives parents of the practical ability to exercise it?

A Head Start proposal that weakens quality standards burdens a parent’s ability to direct their child’s early education.

A Child Tax Credit that leaves an estimated 19 to 20 million of the lowest-income kids behind burdens a parent’s ability to provide for their child.

Red tape in WIC, Medicaid, and child care subsidy enrollment can prevent parents from obtaining services they have already decided are best for their children.

None of these are new demands — paid family leave, sick leave, and simplified benefits access have been on the table since I first made this argument against Florida’s HB 241 back in 2021. They’re just more urgent now, and there are more openings to make them.

If policymakers genuinely want to empower parents, it must include parents’ ability to say “yes”: yes to health care, yes to books and education, yes to child care, yes to nutrition, and yes to other supports their children need to thrive.

Fix the “Mother May I” Problem Before It Takes Two Years and a Broken Femur

Idaho’s SB 1329 required affirmative parental consent for nearly any “health care service” a minor received, with an emergency exception so narrow — death or imminent, irreparable injury — that a 988 hotline counselor was legally required to hang up on kids who called in serious distress but weren’t mid-crisis. More than 1,500 Idaho kids contacted the hotline in the year after the law took effect. That wasn’t parental empowerment. It was a state-designed default of denial dressed up as parental rights — and the one actually harmed by it wasn’t the parent, who never had to make a decision at all.

It was the kid on the other end of the line, whose own interest in reaching help didn’t depend on anyone’s permission slip.

Don’t mistake what happened next for a success story. It took nearly two years — and a parade of Idaho teenagers testifying about what the law had actually done — before lawmakers acted and problems remain.

Jace Woods told the committee he knew a girl who’d been hung up on twelve separate times in twelve separate crises. Dakota Baker described being hospitalized after a suicide attempt and said he often thinks about how differently that night might have gone if someone had simply stayed on the line. “I think we were all in shock of what a mess it turned out to be,” one lawmaker admitted at the hearing.

HB 860 — introduced by Ehardt, the original law’s own sponsor — passed the Idaho Senate 34 to 0 this spring. It carved general first aid out of the consent requirement entirely, widened the injury exception, addressed abuse-related exams and records, and let the 988 hotline serve any minor who calls without a parent’s sign-off first.

However, a statute that needs a year-two rescue bill, passed only after actual kids had to travel to Boise and testify about what it cost them, isn’t evidence this approach works. It’s evidence the approach was broken from the first line of the bill, and that no amount of carve-outs turns a law built backward into a law built right. In fact, long-standing Idaho parental rights laws remain problematic for children in numerous ways.

Children’s own interests also become stronger as they mature. States have long recognized circumstances in which adolescents may consent to sensitive services — including STI testing and treatment, mental health care, and substance-use treatment — without prior parental permission. Those laws recognize something the absolutist parental-rights framework misses: minors have interests in bodily autonomy, privacy, safety, and access to care that cannot always be collapsed into the wishes of an adult.

That doesn’t make parents irrelevant. It means the law must recognize what Tinker, Pico, Parham, and other cases have recognized in different contexts: childhood does not mean constitutional nonexistence.

Be the Next Houston Lawsuit

To the authors of all of these parental rights bills, I would say what I said to Florida’s legislature in 2021: be careful what you wish for.

These bills are drafted to say a parent, any parent, has the right to direct their child’s upbringing, education, health care, and religious life — and courts are now taking that language at its word.

So child advocates should “flip the script” of these bills. Advocates for children should consider:

• Filing the Mahmoud-style challenge to Ten Commandments postings in your state.

• Demanding the blanket consent form for education, books, and child health.

• Asking your district why the health clinic is closing when you signed the form keeping your kid in it.

• Asking your state’s congressional delegation why “parental rights” stops at detention centers that

We should share ideas like the Houston lawsuit and support one another in their filings. We should “flip the script” and support parents who want the book, the vaccine, the school clinic, the religious accommodation, and their child returned from government custody. And wherever parental authority collides with a child’s safety, liberty, dignity, and developing autonomy, insist that the child has rights too.

Parental rights cannot mean that some parents get to make decisions for everyone else’s children. And they certainly cannot mean that children have no rights at all.

The far-right is engaged in a very deliberate campaign to promote parental rights and undermine children’s access to health care and education.

Is it good for the children? That’s still the only question that matters, but the question far too many of these laws forgot to ask.