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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—child consent to medical treatment. If you live in New York, take or send the Legal Memorandum at https://www.vaccinerights.com/legislativeprojects.html to your state representatives, along with any other concerns you may about these bills.
As a starting place, constituents are "one person with one vote." If your position is one held by a minority of constituents who are opposed by big pharma, which is the case with vaccine freedom-of-choice positions, legislative activism is an up-hill battle. Ultimately, legislatures can enact any law they have the votes for, Constitutional or not.
But if you can tell your representative that they "can’t enact into law these bills because they are unconstitutional and violate state and federal law," and provide them with a formal legal analysis supporting that assertion, you have just leveraged your "one person, one vote" status. A loud minority can sometimes influence legislation as well, but strong legal arguments can add volume to your position in any event.
Here’s a summary of some of the legal and other problems with NY’s A343 and S384 found in the Legal Memorandum posted on the Vaccine Rights website:
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." Taking medical decision-making authority over children away from their parents and giving it to anyone—let alone, children—violates the parents' 14th Amendment Constitutional due process right to parent their children.
2. These bills violate parents’ First Amendment "free exercise" of religion, since 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 State Constitution’s religious liberty section, which also 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 a healthcare provider administers a vaccine to a child without first giving the required information to parents, the provider is violating federal law, and probably state ethical rules as well, thereby subjecting the provider to discipline by the state medical, nursing, or other applicable board.
4. States are not without the right to provide for healthcare to children without parental consent absolutely. In emergencies, doctors may treat minors without consulting parents first. But absent an emergency, there is no need for intervention prior to consulting the parent. And in those non-emergency situations where parents are neglecting their child’s medical needs, the state can take custody and provide parental authority for medical treatment.
So, there is no need for the state to give authority to children to consent to their own medical care. Children generally, by definition, are neither developmentally ready nor legally competent to make those decisions. In limited situations, older children may become emancipated and obtain the legal right to make medical decisions for themselves, but absent emancipation or an emergency, it’s not a legal option, nor should it be, for reasons consistent with common sense and the law.
5. Like legislators in other states, New York State 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 would be violating their oath if they voted 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," as stated in these bills. 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. Few healthcare providers are qualified to make such an assessment in any situation, but even less so in the hurried, profiteering environments in which most of them work.
Other states have enacted laws allowing children to consent to vaccines—most notably, CA and NC, but these laws are subject to court challenges that could result in these laws being stricken. Efforts are already underway to explore a possible challenge to these laws in court or to seek their repeal. If you’d like to help with these matters, contact the author.
2. Parham v. J.R., 442 U.S. 584, 603 (1979)
3. N.Y. CONST. art. I, § 3, Freedom of worship; religious liberty
4. 42 U.S.C. § 300aa-26