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 for vaccine 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.” Troxel requires a “threshold showing of harm” that is lacking in the California bill and North Carolina law. 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.
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