The Dark Side of Parental Rights Laws: Risks to Child and Adolescent Health
Parental rights bills that control every aspect of the health of children are being introduced in states across the country and at the federal level. There is no doubt that the role of parents in the engagement, protection, and well-being of children is vital, but these bills often fail to recognize that the rights of children must also be protected for all children to be able to thrive and be healthy.
The primary problem is these bills are causing the delay and denial of health care access to children and youth.
For example, a Tennessee bill, the “Families’ Rights and Responsibilities Act” (SB 2749), which was signed into law by Gov. Bill Lee at the end of May and took effect in July, is already having negative consequences for Tennessee’s children and youth and health care providers.
The bill defines parental rights to include “all physical and mental healthcare decisions for the child and consent to all physical and mental health care on the child’s behalf.” This language explicitly denies adolescents any recognition of having any inherent rights over their own health or bodies.
With respect to the public health implications for children of the new law, Tennessee Lookout’s Anita Wadhwani reports:
Tennessee public health clinics will no longer give teens access to routine healthcare — including birth control, sexually transmitted infection treatment and pregnancy testing — without parental consent, according to the Department of Health’s interpretation of a new parental rights law in effect July 1.
Wadhwani adds:
As applied by the state’s health department, the law fundamentally alters the way public health doctors and nurses interact with teenage patients seeking out preventative care at their local public health clinics — often the only available option for teens needing these services in rural Tennessee counties.
Before the law took effect, teens 14 and up could access contraceptives, HIV and pregnancy tests and a range of primary healthcare from public health clinics on their own. Now, they must bring a parent with them or allow staff to obtain verbal parental consent over the phone.
Consequently, a 17-year-old in Tennessee in need of testing and treatment for a sexually transmitted infection (STI) but is scared, unsure, or unwilling to tell their parents before seeking testing or treatment for care, will now be turned away from health care.
The law will exacerbate and compound a growing crisis in which rates of HIV, syphilis, tuberculosis, and other public health problems were already rising among teenagers in Tennessee.
Whose interest does this serve? Certainly not adolescents.
Compounding the harm, the denial of care and services to Tennessee’s youth is likely to occur even in cases where a child is being subjected to physical or sexual abuse. Under the new law, a child abuser could deny consent for medical care to the child they are abusing in order to prevent the abuse from being documented.
This is both outrageous and dangerous to the health and safety of children.
Tennessee’s law also challenges how pediatricians, nurse practitioners, school nurses, school counselors, athletic trainers, coaches, or health aides can provide health care services to children, even with regard to the most basic services.
As a volunteer high school basketball coach, I know firsthand how such a law could create chaos and confusion in everyday situations. For example, if a student scraps their knee, gets a bloody nose, jams a finger, sprains an ankle, or asks the coach, athletic trainer, or school nurse to wrap an ankle or tape a finger, they should get that care without the need for a raft of bureaucratic paperwork, phone calls, etc. Even if a parent has signed a blanket waiver, the first action by a coach, athletic trainer, or school nurse would need to be to check for the paperwork before caring for the child. Thus, there is delay even if a parent has provided consent.
The Tennessee law is so sweeping and poorly written that it requires parental consent before a medical professional could provide a bandage, ice pack, or a tissue to a child. Failure to obtain parental consent, even for the most mundane things, could threaten health care providers and school officials with lawsuits and having the state “suspend, revoke, or refuse to renew their license.”
This is ludicrous.
For both school and public health care officials, the questions are numerous. Is there a blanket consent form? Where is it located? If the consent form is not specific to this need, do you have to try to contact all parents and custodians for consent? Do step-parents and foster parents count? Does consent from one parent or custodian suffice? If a parent cannot be reached, do you just let the child bleed or suffer in pain? If parents disagree on consent, is the default non-treatment? Is that ethical?
Public health officials, coaches, school nurses, athletic trainers, and counselors are all there to keep kids safe, healthy, and protected, but these laws can tie their hands and leave children to suffer needlessly with disease, infection, injury, or illness that are preventable and treatable.
Again, in whose interest does this serve? Certainly not the child.
When the health of children is at stake, the primary focus should always be on the health care and treatment of the children rather than on the adults. Unfortunately, the parental rights movement’s self-absorbed focus on their own rights sidelines the needs, concerns, and interests of the very people who are most deserving of attention in such situations: CHILDREN.
In the book, A Minor Revolution: How Prioritizing Kids Benefits Us All, Adam Benforado writes:
So often, children are at the back of our minds, not the front. They are afterthoughts or never noticed at all. They are invisible when they are right before us. What’s particularly worrying is that even those charged directly with protecting kids are often infected with this heedlessness, a careless apathy. At critical moments, even they are just going through the motions.
If Tennessee Is Bad, Idaho Is Worse
In Idaho, the state already had pretty radical laws on the books related to parental rights. For example, in circumstances in which parents chose to “treat” their children for life-threatening diseases with cannabis or prayer rather than medical care, the state legislature had already put parental rights ahead of the lives and safety of children.
Deference is almost always granted to the parent, regardless of the circumstances. As a result, children have died or suffered life-long disabilities due to the withholding or denial of medical care by parents.
Child advocates in Idaho have sought to give children and health care providers greater voice in the health of children. Unfortunately, the Idaho legislature decided to head in the opposite direction once again with its passage of the “Parents’ Rights in Medical Decision-Making Act” (SB 1329) earlier this year.
This sweeping new law preempts all other statutes that had previously provided minors some limited ability to get treatment for infections, communicable diseases, and treatment or rehabilitation for drug abuse without parental consent. Consequently, emergency care and court order are the only real exceptions from the need for parental consent for children and youth. The new law reads:
Except as otherwise provided by court order, an individual shall not furnish a health care service or solicit to furnish a health care service to a minor child without obtaining the prior consent of the minor child’s parent.
This legal shift is not just an inconvenience; the troubling details in this bill pose significant health risks in terms of delay and denial of care and treatment to children.
For example, as confirmed by the Idaho State Police, an Idaho minor who is a victim of rape or incest would need parental consent (possibly from the abuser themselves) in order to receive health care services, including to sexual assault exams or rape kit exams. This could, as reported by Ruth Brown, “end up unintentionally protecting sexual predators who abuse children.”
In fact, prior to the passage of SB 1329, a young victim of rape or incest could give informed consent for the exam, but now Idaho denies them what should be a fundamental right over bodily autonomy, and instead, potentially places it in the hands of a potential criminal. This is further compounded if a teenage girl becomes pregnant and must continue to seek parental consent for all medical treatments.
Even postpartum, Idaho’s law would require the teenage girl to get parental consent for their own health care, while that same teenage girl becomes the decision-maker for the health care of somebody else’s care: their child.
This type of scenario created by this law is absurd and will have tragic consequences. Unfortunately, the law was clearly written without considering the best interests of children and youth themselves.
As another troublesome example, Idaho’s new law requires an “individual” (and not just medical providers) to obtain parental consent for “soliciting” or “furnishing” health care services to a minor. Words matter in law, and consequently, a “Good Samaritan” or “individual” who comes across a car accident involving a 16-year-old would be in violation of the law and could be sued for offering to help an injured child without having obtained parental consent.
The Idaho bill also eliminates any possibility of confidentiality for a teenager by giving parents nearly unlimited access to the medical records of a child. While many parents and their children have a good relationship and can talk about challenges and concerns an adolescent may be facing with respect to mental health, substance abuse, reproductive health, etc., others do not and are uncomfortable talking about these issues. Consequently, confidentiality is important if we believe teenagers should be able to access those critical and potentially life-saving health care services.
As Abigail English and Dr. Carol Ford explain in The Journal of Pediatrics:
Decades of research findings have documented the ways in which privacy concerns influence adolescents’ willingness to seek healthcare, where and when they seek care, and how candid they are with their healthcare providers. In the absence of confidentiality protections, some adolescents forego care entirely, some delay care or avoid visiting providers they perceive as not assuring confidentiality, and some limit the information they are willing to disclose.
English and Ford add:
Not all adolescents have parents who are available, willing, and able to communicate with them about sensitive issues, and not all adolescents are willing to share information about all sensitive health issues with their parents. In this context, confidential consultation with a healthcare provider can play an essential role. Eliciting candid information about adolescent concerns, health behaviors, and symptoms clearly increases clinicians’ opportunities to address concerns, provide evidence-based prevention and risk-reduction counseling, and ensure timely diagnosis and treatment.
Idaho’s new bill gives parents almost unlimited access to the medical records of a child with the only exception being if “the parent is a subject of an investigation related to a crime committed against the child” AND “a law enforcement officer requests that the information not be released to a parent.”
Although the bill’s “exception” is intended to protect a child from a physically or sexually abusive parent, it would likely provide no real protection at all. The problem is that the limitation on access to the medical record would only occur if both a child abuse investigation was initiated AND a law enforcement officer specifically requested the health care provider not to release the information. Having both of those steps take place quickly and in a timely manner is highly unlikely and unrealistic.
Consequently, Idaho’s new bill would violate both the child’s need for confidentiality and protection even in this critically important circumstance. Furthermore, it would also likely threaten the confidentiality of a possible source of information about the health of a child, such as a mandatory reporter who reported the abuse of a parent to child protective services or a medical provider.
Again, the best interests and well-being of children are seemingly an afterthought even on a matter where the health, safety, and protection of children should be the focus.
The Importance of School Health
Delaying, denying, and attempting to eliminate access to health care services for children has serious negative consequences on children, but that is an afterthought to those whose primary goals are power, control, and politics. Taking the bad Tennessee law a step further, Moms for Liberty is calling for the outright abolition of school-based health care services, as if that is some sort of “parental right.”
This is absurb. When you are responsible for hundreds of kids, health care is a daily reality in public schools. Moreover, the evidence is overwhelming that school-based health centers provide enormous benefits to students. They:
Improve child health by expanding access to preventive care, services for children with chronic conditions such as asthma, epilepsy, etc., mental health, etc.
Improve school attendance by providing services on campus, which causes students to miss less class time for appointments and illness;
Improve child development by helping schools track student progress on health care issues and on the diagnosis, treatment, and monitoring of child development issues such as speech, etc.;
Improve student success by improving school performance, grade promotion, and high school completion rates, as a healthier child is a child more able to learn and be successful; and,
Lower health care costs by reducing emergency room visits and hospitalizations.
School-based health centers also benefit parents. They:
Provide piece of mind: for parents of a child with asthma, epilepsy, or medical or mental health conditions or disabilities that may require prompt or immediate attention, a school-based health center gives parents a sense of security;
Save parents time and money: allowing students to stay in school to get their health care needs met saves parents money and time away from work; and,
Increase knowledge and information: school nurses, athletic trainers, and school counselors often provide health information and education but can observe and monitor the needs of children in real time and provide support and advice to parents on ways to optimize their child’s developmental and health care needs.
Maybe Moms for Liberty members do not have a child with asthma, diabetes, severe allergies, epilepsy/seizure disorder, cardiac/heart conditions, mental health issues, or some other chronic-illness, have never had a child get sick at school, do not have recess or physical education at their schools, or do not have children who are student-athletes. But even if that is the case, to actively push to deny all other children and their parents the benefits of school-based health services is shocking and dangerous.
As Rep. Frederica Wilson (D-FL) points out, we should strive to have a school nurse in every school.
Whose Rights and What Focus?
For the vast majority of parents, there is no need or desire for legislation to create bureaucratic “prior authorization” burdens that result in the delay and denial of health care treatment of children or, even worse, the elimination of school-based health care services entirely.
Most parents appreciate and have a level of respect and trust in their children’s health care providers. They are not looking for politicians to create mounds of unnecessary bureaucracy and paperwork that divert the attention of medical providers from providing appropriate and timely health care to their children.
Furthermore, most parents are not asking for the responsibility and burden of being the gatekeeper for every single health care decision to be made. They would prefer that health care professionals be unburdened by paperwork and bureaucracy so they can focus and center their attention on protecting and improving the health care of children.
But it is also important to point out that giving sole decision-making authority to parents and sidelining both medical professionals and the children themselves is highly problematic. First of all, some parents are simply not up to the task. Whether they are having issues that are preventing them from being present or good parents, giving sole decision-making authority to such parents will have negative consequences for the health of their children.
Second, some parents are abusers and such laws have the unfortunate consequence – even if unintended – to protect the abuser rather than the child.
As Samantha Godwin explains in an article published in Columbia Human Rights Law Review:
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. The issue is not only what role we hope that parents play in their children’s lives, but how the powers actually granted might be used and abused for better or worse. 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.
Third, there must be safeguards to protect the health and safety of children, particularly those in precarious or troubling family situations. When the focus is solely on parental rights, it fails to recognize those circumstances when parents can fail to act in the best interests of their children or even actively make a choice that is detrimental to the lives of children.
Again, these bills allow parents to unilaterally deny their children access to prevention measures such as immunizations, mental health or substance abuse treatment, or even life-saving cancer treatment. The consequences of such choices can be tragic and deadly and should not be accepted as some sort of “parental right.”
Fourth, children are not the property of parents, and we should not go back to that time in society when they were often treated as such.
Consequently, the Tennessee and Idaho laws should be repealed or completely rewritten to center the needs and best interests of children.
Similar laws in other states and the federal version of the “Families’ Rights and Responsibilities Act” (S. 3571/H.R. 6934) by Sen. Tim Scott (R-SC) and Virginia Foxx (R-NC) should be soundly rejected because of the threats they pose to the health, education, safety, well-being, and fundamental rights of children.
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Extremely informative article, Bruce. It is always a tricky task diving into the intersectionality between a parent and minor when it comes to individual rights. However, you do a great job with several state examples advocating for a greater need in minor rights without the approval or oversight of a parent.