The Need for a Parental Bill of Rights - (Source)
Historically, aren't parental rights inalienable, absolute rights with which the government should never interfere?
Answer from Michael Farris, , J.D., LL.M:
The Founding Fathers never argued that inalienable rights were absolute. Freedom of the press was clearly viewed as both inalienable and fundamental by the Founders. Yet, there were laws that were on the books punishing those who used the press to defame other people. Defamation was (and is) punished despite the fact that the freedom of the press was viewed as a God-given liberty described repeatedly as both inalienable and fundamental.
Likewise, parental rights are not absolute.
If we strip away the terminology debates and just think about theories of legally protectable rights, we will eventually conclude that there are essentially three potential levels of rights:
- Absolute rights that may never be invaded by government for any reason whatsoever.
- Very important rights that should not be limited except when someone abuses their rights by extreme use of their liberty.
- Ordinary rights that the government could overcome whenever there was a good reason to do so.
The Founders clearly believed that inalienable rights were not absolute. Consider this section from the Massachusetts Bill of Rights of 1780:
First, it is obvious that equal protection of the laws was denied to Jews and Muslims. Religious freedom did not extend that far. Second, there was the limitation of “demeaning themselves peacefully.” Baptist pastors in Virginia were routinely arrested in the 1770s for disturbing the peace when they preached without obtaining a license from the government. (My book, , gives an exhaustive history of the development of religious liberty in England and America). This “demeaning themselves peacefully” standard gave the prevailing denomination incredible power to limit the religious practices of dissenters. Moreover, there was the limitation that the other denominations had to be “good subjects of the commonwealth.” That, too, was an open-ended, vague provision that could be used to limit religious liberty.
Fortunately, the Massachusetts position was eventually replaced by a view of true religious liberty for all. But my point is this: Even inalienable rights were, in fact, limited by the Founding Fathers.
I think it is now evident that:
- The Founders did not believe that inalienable rights are absolute.
- Parental rights should not be absolute.
In light of the fact that parental rights cannot and should not be considered an absolute right, the question remains: Have we chosen the correct method of limitation on this right?
We certainly do not want to return to the language of the Massachusetts Bill of Rights of 1780: “Parents should have the right to make all decisions for their children provided that they are ‘demeaning themselves peaceably and [are] good subjects of the commonwealth’.” I guarantee you that such a rule would let the government run roughshod over every parent that had the courage to defy an improper government edict.
Accordingly, we chose the language from, 406 US 205 (1972), to describe the difficult burden the government must meet in order to demonstrate that a parental choice can be limited by the government. There must be evidence—not a mere assertion—that in this particular case the government’s interest is “of the highest order and not otherwise served.” This language was used to hold that the compulsory education law was not important enough to meet this standard in the context of that case. Compulsory education law cannot be described as anything less than an incredibly high priority to the government. Yet, parental rights prevailed over this interest in Yoder.
Some standard has to be articulated because the courts will never find that parental rights are absolute. Realism dictates this path, as does good philosophy. Parents should not have the right to abuse their children. So we either leave it to the courts to invent the exceptions to the rule, or we give them the standard from the very best example we have in Supreme Court history. We have chosen the latter path.
H3197/S234 the “Parents’ Bill of Rights” - The bill provides that the state, its political subdivisions, any other governmental entity, or other institution may not infringe upon the fundamental rights of a parent to direct the upbringing, education, health care, and mental health of a minor child. If those entities infringe upon a parent’s fundamental right, they must demonstrate that the action is reasonable and necessary to achieve a compelling state interest, and the action must be narrowly tailored and not otherwise served by less restrictive means.
The bill enumerates a list of rights that a parent possesses in order to direct the education of his or her child and be informed about the child’s educational programs. The bill also requires the school district to promote parental involvement in the public school system by providing access to the child’s studies and instructional materials while also recognizing a parent’s right to withdraw the child from objectionable portions of the school’s curriculum.
The bill also requires a parent’s permission before a health care practitioner may provide services, prescribe medicine to the child, or perform a medical procedure, unless otherwise provided by law. The bill provides a misdemeanor penalty for a health care practitioner or similar person who violates the health care provisions and subjects these persons to disciplinary actions.
Parental Medical Consent
Although the Parental Bill of Rights Bill H3197/S234 does include some novel provisions, many components reflect current laws.
Circumstances, where a physician can provide medical care for children without parental consent are limited and narrow. Currently, children under 16 cannot legally consent to health care, except for discrete situations. For example, accidents, crashes, anaphylactic reactions, etc.) without parental consent if delaying treatment would endanger the child's health or well-being. This bill introduces the following - requires the healthcare provider to notify the parents and increases the age of consent to 18.
SC also has the Good Samaritan law, which permits certain healthcare professionals to render emergency medical care without consent at the scene of an emergency. The Good Samaritan law expressly states: "the Legislature's intent is to encourage health care practitioners to provide necessary emergency care to all persons without fear of litigation."
These two laws that permit healthcare providers to treat patients — including children — without parental consent in an emergency still stand under this bill. Amending or removing these laws will require legislation that specifically targets these codes.
DHEC & Parental Consent
SC Department of Health and Environmental Control - Emergency Health Powers clearly describes the state's ability to force medical treatment on all persons. Refer to Title 44 - Health CHAPTER 4 Emergency Health Powers, ARTICLE 5 Special Powers During State of Public Health Emergency: Control of Persons -
- SECTION 44-4-500. Control and treatment of infectious disease.
- SECTION 44-4-510. Physical examinations or tests; isolation or quarantine of persons refusing examination.
- SECTION 44-4-520. Vaccinations and treatment.
- SECTION 44-4-530. Isolation and quarantine of individuals or groups; penalty for noncompliance.
Legislation to remove DHEC emergency powers is the only way to get rid of those powers.
Compelling State Interest
H3197/S234 provides that the following entities may not infringe on the fundamental rights of a parent to direct the upbringing, education, health care, and mental health of a parent’s minor child: The state; State political subdivisions; Any other governmental entity; or Any other institution.
If any of these entities infringes on a parent’s fundamental right, it must demonstrate that the action is reasonable and necessary to achieve a compelling state interest and the action is narrowly tailored and is not otherwise served by a less restrictive means. This “compelling interest” standard is the highest standard of review
These key phrases—"compelling interest," "narrowly tailored," and "least restrictive means"—are the backbone of the "strict scrutiny" standard of review. Adding this requirement into the legal code won't change the current practice, but it will prevent erosion of parental rights by a shifting judiciary in the future.
The court must weigh the individual interests to determine whether the conduct of the governmental actor constituted an undue burden on a parent's associational rights.
https://www.rjflaw.com/articles/the-constitutional-right-to-parent/
Strict scrutiny also reinforces the current SC code of law - SECTION 63-7-10, which states that any intervention by the State into family life on behalf of children must be guided by law, by strong philosophical underpinnings, and by sound professional standards for practice.
Must be based on these principles:
(1) Parents have the primary responsibility for and are the primary resource for their children.
(2) Children should have the opportunity to grow up in a family unit if at all possible.
This bill will give parents, children, school boards, and family defense attorneys one section of the SC law they can turn to when questions arise about the proper role of parents or the government when it comes to raising children.
US Supreme Court, Constitution & Parental Rights
The Parental Bill of Rights uses key language directly from US Supreme Court cases stating parents hold decision-making power for their children's upbringing, education, and health care.
It is parents — not the state or physicians — that have an interest and responsibility in making medical decisions for children. This right includes respecting parents' ability to make medical decisions to consent or forgo recommended medical interventions for children.
This bill aims to AFFIRM/RECOGNIZE what parents already knew: that their parental rights are fundamental. The Constitution of the United States does not create rights. Rather, the US Constitution recognizes that human beings have "certain inalienable rights" to which they are entitled which arise as a matter of natural right. Only, the Constitution does not say anything about a parent.
Unfortunately, not all children have parents that are looking out for their best interest. Believe it or not, many children have abusive parents, parents on drugs, parents who could care less about their child's health and education. What about them? How are they protected? To say that parents have rights and nobody can take those rights away is ignoring the sad reality that many parents abuse those rights. This bill aims to protect children dealing with harmful parents and dangerous living conditions.
We have seen how corrupt agencies have disrespected parents and ignored their parental rights in the last year. If anyone thinks that'll stop because God gives us those rights, then respectfully, they have not been paying attention. God gave us these rights, but he also gave us the foresight to do what is in our power to protect those rights.
If you send your child to a public school, you co-parent with the government, and you will not fix the issues in these institutions anytime soon.
Homeschooling is a great option, but it's only a matter of time until corrupt organizations with the funding/politicians will come after homeschoolers. Also, there are a lot of children who have parents that will never take them out of public education. FYI - homeschooling laws protect the rights of homeschooling parents.
Affirming Parental Rights
The Parental Bill of Rights bill is not about taking away parental rights. It's about affirming those rights, just like the bill of rights and the civil rights.
The only way the government sets a precedent over limiting parental rights is if we the people, the parents allow it, which we have allowed in the past. We the people, the parents, have to take back our rights and secure them by reaffirming those rights. South Carolina courts have repeatedly recognized the rights of parents to oversee the care of their children as a fundamental right deserving of the strict scrutiny standard. However, this precedent is subject to change and is not permanently protected by law.
School Board and Parental Rights
The existing school board laws - Title 59 - Education, CHAPTER 19, School Trustees, ARTICLE 1, General Provisions, SECTION 59-19-90. General powers and duties of school trustees. - are not parental right friendly. Nowhere within this section of the law does it state that a parent has the right to consent to school policy or curriculums/materials used to educate a child attending public school.
The Parental Bill of Rights H3197/S234 proposes adding the following to section 59 - each district school board shall, in consultation with parents, teachers, and administrators, develop and adopt a policy to promote parental involvement in the public school system. The policy must include:
(1) a plan for parental participation in schools to improve parent and teacher cooperation in such areas as homework, school attendance, and discipline;
(2) a procedure for a parent to learn about his child's course of study, including the source of any supplemental educational materials;
(3) procedures for a parent to object to instructional materials and other materials used in the classroom. Such objections may be based on beliefs regarding morality, sex, and religion or the belief that such materials are harmful;
(4) procedures for a parent to withdraw his child from any portion of the school district's comprehensive health education program required pursuant to Chapter 32, Title 59 that relates to sex education or instruction in acquired immune deficiency syndrome education or any instruction regarding sexuality if the parent provides a written objection to his child's participation. The procedures must provide for a parent to be notified in advance of such course content so that he may withdraw his child from those portions of the course;
(5) procedures for a parent to learn about the nature and purpose of clubs and activities offered at his child's school, including those that are extracurricular or part of the school curriculum;
(6) procedures for a parent to learn about parental rights and responsibilities under general law.
Why do we need a Parental Bill of Rights in South Carolina?
The Parental Bill of Rights because of how different state entities and institutions interact with our children and families and the sporadic nature of laws throughout our statutes. It doesn't give a clear picture of the obligation they have to interact with that family. Therefore, by putting it all into one statute, by codifying the standard set forth in case law - most people do not consult case law - so by doing that all in one place, we give a guide to the state entities or institutions who interact with our children, a guide for what their obligation is.
A Parental Bill of Rights Chapter will provide parents with one place to go where they can understand what their rights are. Stronger families mean a stronger nation.Families must feel secure in their liberty to raise their children according to the dictates of their conscience.
Parents should be applauded, not penalized, for investing time in the discipline and nurturing of their children.
Parents, not social workers or teachers, are best positioned to make decisions for their children. Other than in cases of genuine child abuse, which should be treated as a crime, the fundamental right of parents to direct the education and upbringing of their children should, in every case, trump the policy objectives of bureaucrats and social workers.
Parental Bill of Rights legislation will help re-establish the sanctity of the home as a fundamental principle of liberty for our free society.
Ending - The Parental Bill of Rights was enacted in Florida in April 2021, and if you do a quick internet search, you'll learn how that law has protected parents in the past year.
Below are a few articles about how the Parental Bill of Rights enacted in Florida is helping parents.
https://www.christianpost.com/news/parents-sue-school-district-over-affirming-kids-trans-identity.html
https://www.wctv.tv/2021/11/03/parents-sue-leon-county-schools-over-its-lgbtq-policies/
https://patch.com/florida/across-fl/desantis-would-give-parents-right-sue-over-vax-mandates-special-session
https://www.palmcoastobserver.com/article/new-law-establishing-parents-bill-of-rights-prompts-changes-at-flagler-schools
https://www.wcjb.com/2021/07/06/doctors-fear-criminal-penalties-under-new-florida-parents-bill-rights/
Lets's continue to introduce solutions to improve it or an alternative solution. Because, as of now, parental rights are quickly disappearing.