Idaho Gov. Brad Little has approved a measure that will require parental consent before minors can receive medical treatment.
The governor signed Senate Bill 1329 on March 21. The measure creates Section 32-1015 in the Idaho Code, titled Parental Rights in Medical Decision-Making. It recognizes that “parents have the fundamental right and duty to make decisions concerning the furnishing of health care services to the minor child.”
Unless “otherwise provided by court order,” individuals are prohibited from soliciting or providing health care services to minors without first obtaining consent in advance from the parent or guardian.
The measure is significant in light of the number of states allowing children and teens to receive puberty blockers and undergo elective sex-reassignment surgeries to appear more like the opposite sex.
Alliance Defending Freedom (ADF) issued a statement after the Idaho bill became a law.
“Parents love and know their child best,” said ADF senior counsel Matt Sharp. “And they have the right and responsibility to direct the care and upbringing of their children—including making decisions regarding their child’s health care.”
Some Exceptions Allowed
The law does provide for two exceptions.The first exception applies if a health care provider determines that a “medical emergency exists” and providing the care is necessary to “prevent death or imminent, irreparable physical injury to the minor child.” The other is if the health care provider is “unable to contact the parent and the child’s life or health would be seriously endangered by further delay in the furnishing of healthcare services.”
In addition, the new law guarantees a parent’s right to access the medical records of their minor children, saying, “No health care provider or governmental entity shall deny a minor child’s parent access to health information that is in such health care provider’s or governmental entity’s control and requested by the minor child’s parent.”
Exceptions were provided for cases where a “parent’s access to the requested health information is prohibited by a court order” or when “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 the parent.”
Idaho is listed as one of 12 states that allow minors at various ages to provide informed consent for general health care services or procedures, according to the Centers for Disease Control and Prevention. As of March 26, the list still included Idaho. The Epoch Times reached out to the CDC to see when it will update the list but did not receive a response before press time.
The age of majority, at which a person is legally considered to be an adult, is 18 in most jurisdictions.
The age of majority in Alabama and Nebraska is 19. However, Alabama allows minors aged 14 years and older to provide informed consent for medical care. In Mississippi and Pennsylvania, the age of majority is 21. However, both states allow 18-year-olds to provide informed consent for medical care.
‘Fundamental Rights’
ParentsUSA is a national organization that “works to support parents’ rights to raise their children as they see fit, so long as they are not harmed.”David DeLugas is the executive director and founder of ParentsUSA. He is also a trial and appellate attorney with expertise in constitutional and family law. He is licensed to practice law in the state of Georgia and to appear before the U.S. Supreme Court.
Mr. DeLugas told The Epoch Times that the heart of any discussion regarding parental rights boils down to one question.
“When does the government have a right to infringe upon a fundamental right?”
The word “fundamental,” he explained, is key.
When it comes to constitutional rights, there are fundamental rights and rights that are not fundamental.
“Fundamental constitutional rights require strict scrutiny, which is a higher level,” he said.
Cornell Law School’s Legal Information Institute defines “fundamental rights” as “a group of rights that have been recognized by the Supreme Court as requiring a high degree of protection from government encroachment.”
The fundamental rights specifically cited in the Constitution are freedom of speech, trial by jury, protection against self-incrimination, protection against unreasonable searches and seizures, equal protection, and voting, according to Cornell Law School. Fundamental rights not specified in the Constitution include marriage, privacy, contraception, interstate travel, procreation, and the “custody of one’s children.”
The Idaho law “is well worded and appears to be in compliance with such constitutional principles,” Mr. DeLugas said.
Parental rights regarding the custody of children “is a fundamental constitutional right,” he explained.
“Therefore, the state needs a compelling and legitimate interest to infringe on that fundamental constitutional right and protecting children from harm, either some serious or significant physical harm or some serious long-term emotional harm, has been found by the Supreme Court to be valid.”
The purpose behind any legislation related to parental rights is also important.
“Is this to protect children? Or is it to do something that someone in government thinks ought to be done because it’s better for children?” he asked.
He said that “better” is not a justification that trumps the constitutional rights of parents.
Mr. DeLugas also noted that a parent’s right to make decisions on behalf of their own minor children has nothing to do with controlling what other people do on behalf of their children.
“It’s to decide what their child does or doesn’t do. Not what the children of other parents do or don’t do.”
One concern with laws such as the one passed in Idaho is “how quickly a medical provider is going to face malpractice lawsuits based upon their claim and contention that it was necessary to override the parent’s position,” he said.
However, as a parent and a constitutional attorney, Mr. DeLugas said he believes that the exception to allow for medical care if the doctors cannot contact the parents and “death or imminent, irreparable physical injury” is imminent if care is not provided immediately is “a legitimate and compelling governmental interest.”
