Alan Phillips, J.D.
April 17, 2012
New York’s A343 and S384, if enacted into law, will give children the right to consent to HPV and Hep B vaccines, without the knowledge and consent of their parents. Regardless of your position on vaccines, these bills set a disturbing precedent in violation of the U.S. Constitution. If you live in New York, take or send thisMemorandum of Lawto your state representatives, along with any other concerns you may have, to oppose these bills!
As a starting place, constituents are “one person with one vote.” If your position is one held by a minority, which is usually the case with vaccine freedom-of-choice advocates, legislative activism is an up-hill battle. But legislative activism involves the art of persuasion, since ultimately, legislatures can enact any law they have the votes for, Constitutional or not. So, if you can tell your representative, “I don’t like this bill” and why that can be persuasive, but if you can add to that, “and by the way, youcan’tenact this bill into law because it’s unconstitutional,” you can substantially bolster your “one person, one vote” starting point. Furthermore, a loud minority can often influence legislation considerably, and a compelling legal argument can add considerable “volume” to your position. So, if thisMemorandumrepresents your views, then given a copy to your NY rep today!
Meanwhile, here’s a summary of some of the legal and other problems with NY’s A343 and S384:
1. They are unconstitutional. The U.S. Supreme Court has stated: “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.” Giving medical decision-making authority to children violates parents’ 14th Amendment Constitutional due process right to parent their children. When the state takes parental decision-making away from parents, it is essentially saying that the parents are unfit to make those decisions. When the state gives that authority to children, it is saying that kids are fit to make decisions that the parents aren’t fit to make. Rather absurd, isn’t it?!
2. These NY bills violate parents’ First Amendment “free exercise” of religion. Parents, and not children, have the legal authority to exercise a vaccine religious exemption for their children under N.Y. Pub. Health Law § 2164(9). They also violate the NY State Constitution’s religious liberty section, which supports NY parents’ right to refuse vaccines for their children for religious reasons.
3. These bills violate the National Vaccine Injury Compensation Program, which requires “each healthcare provider who administers a vaccine” to “provide to the legal representatives of any child” a copy of information “prior to the administration of the vaccine.” A child can’t consent to the administration of a vaccine without the parent’s knowledge and consent if the person administering the vaccine must first give the parent vaccine information. If healthcare providers administer a vaccine to a child without first giving the required information to parents, they are violating federal law, and in the process, probably violating state medical ethical rules at the same time (because of violating federal law), subjecting themselves to discipline by their state medical, nursing, or other relevant boards.
4. States are not without the right to administer healthcare to children without parental consent absolutely. In emergencies, doctors may treat minors without consulting parents first; and when children are emancipated, they can make decisions for themselves. But absent an emergency or emancipation, there is no need for intervention prior to consulting the parent. In those situations where parents are unfit and can’t or won’t provide proper healthcare for their children, the state can take custody and give parental consent for medical treatment in the place of the parent. So, absent an emergency or other applicable exception, there may never be a need for the state to give medical decision-making authority directly to children at all. But this is only logical, since children, by both medical and legal definitions, are neither developmentally capable nor legally competent to make those decisions.
5. New York legislators take an oath to “support the constitution of the United States, and the constitution of the State of New York” before performing the duties of their offices. Since A343 and S384 violate the U.S. and New York Constitutions as explained above, legislators will be violating their oaths if they vote for these bills.
6. Finally, these bills do not explain how a healthcare provider is to determine whether or not a child “has the capacity to consent to the care,” asthe billsrequire. Who gets to decide that? On the basis of what criteria? Subject to what supervision or scrutiny? These are questions that require a combination of therapeutic and legal expertise to answer; physicians are not qualified to make the assessment, especially given the hurried environments in which most of them work.
Other states have enacted laws allowing children to consent to vaccines (see, e.g., Natural News articlesStealth Vaccine Laws Allow Children to Consent to Vaccines), but these laws are subject to court challenges that could result in these laws being stricken. We must vigorously oppose the New York bills, to prevent this from setting a precedent that quickly sweeps the nation. New York residents can quickly contact their reps by joining the NVIC’sAdvocacy Portal. Consider joining thePandemic Response Project’semail list as well!
Alan Phillips, J.D. is a nationally recognized legal expert on vaccine rights issues. He advises clients, activists and other attorneys nationally on vaccine rights issues and legislative initiatives. Learn more atwww.vaccinerights.com.
1. Parham v. J.R., 442 U.S. 584, 603 (1979)
2. N.Y. CONST. art. I, § 3, Freedom of worship; religious liberty
3. 42 U.S.C. § 300aa-26
4. N.Y. Const. art. 13, § 1
About the author:
Alan Phillips, Attorney at Law
P.O. Box 3473
Chapel Hill, NC 27515-3473
The Pandemic Response Project:www.pandemicresponseproject.com
This article was posted: Tuesday, April 17, 2012 at 3:05 am