An Open Letter to Robert F. Kennedy Jr. on Human Rights for Children
My life’s work has provided me with a unique perspective on our individual rights to clean air, clean water, unobstructed access to the commons, and our rights to make our own decisions about our bodies. — Robert F. Kennedy, Jr.
Children Have Fundamental Human Rights
To Robert F. Kennedy, Jr.:
I am hopeful that we can agree on this fundamental point: Children have human rights, including the right of adolescents to be listened to and respected, particularly on matters related to decisions about their own bodies, health, and well-being.
In that vein, I am writing with great concern that your recently filed lawsuit against a District of Columbia (D.C.) law on vaccines for children goes well beyond your views on vaccines and will undermine children’s broader human rights.
Unfortunately, there are people, like Fox News’s Tucker Carlson, who has asserted that kids “are not citizens, they are children, they are not 18. . . .” As is often the case, he is wrong. Children may not be able to vote or legally drink alcohol, but they are full citizens and have fundamental rights and interests.
As Supreme Court Justice Abe Fortas wrote in Tinker v. Des Moines Independent Community School District (1969):
Students in school as well as out of school are “persons” under our Constitution. They are possessed of fundamental rights which the State must respect.
Children have long participated in our democracy in many ways, including engagement in many great social justice and civil rights movements throughout the history of our country.
Teenager Harrison Romero wrote in response in Carlson:
We are fighting for our rights — for our lives — and whether you like it or not, we are equal American citizens with free speech, the right to organize, the right to assemble, and the right to protest.
Our young people have a right to be heard, participate, and have direction over their lives, but particularly their own bodies and health issues.
When it comes to parents, they typically play the most fundamental role in the upbringing, care, and well-being of children, but their role is also a responsibility or “high duty.” As Justice James C. McReynolds wrote in Pierce v. Society of the Sisters (1925):
The child is not the mere creature of the state; those who nurture him and direct his destiny have the right, coupled with the high duty, to recognize and prepare him for additional obligations.
There is also an important role for government in the promotion and the protection of the health, education, safety, well-being, and best interests of children in our society that includes the parens patriae role where government may step in more directly to help care for kids. Children often need the support and protection of parents and/or government (affirmative rights).
What children do not need is to be treated as property.
We are well past that time in our nation’s history where children were treated as the property of fathers and, according to Samantha Godwin, “in the Massachusetts Bay Colony, children could be put to death for disobeying their parents under laws informed by a belief that children are born in sin and must therefore submit to adult authority.”
As late as 1920, a parent who killed a child in the course of punishment could claim a legal excuse for homicide in no fewer than nine states. Well into the nineteenth century, a father could enroll his male children in the army and collect the enrollment bounty, betroth his minor female children to persons of his choice, and put his children to work as day laborers on farms or factories and collect their wage packets.
Fortunately, society and law have progressed such that it is no longer acceptable for children to be threatened as “chattel” and children do possess rights in relation to and independent of their parents. Thus, it is recognized that children and youth have fundamental rights that require protection from actions by parents and/or government that threaten their health, education, safety, and well-being (negative rights).
In case we need reminding, a Commission to Eliminate Child Abuse and Neglect Fatalities published an extensive report in 2016 that found:
Every day, four to eight children in the United States die from abuse or neglect at the hands of their parents or caretakers. No one knows the exact number, and there has been little progress in preventing these tragic deaths. Most of the children who die are infants or toddlers.
Although most parents deserve deference in the upbringing of their children and support to help any parents struggling to fulfill parenting duties, some parents are simply unable to live up to the responsibilities and duties of parenting. The reality is that, tragically, some parents are violent, criminal, unfit, and a danger to children.
It is in that vulnerability of children that we must recognize that the relationship is one in which power is on one side and requires that government hear, recognize, and sometimes step in to protect the fundamental rights of children, such as the protection from harm, violence, or exploitation and the promotion of education, adequate living standards, their best interests, and participation.
When evaluating the extent of parents’ legal rights, we should not merely consider how ideal parents exercise their power to provide the effective care and guidance children need. The extent of what the law enables imperfect parents to do to their children must also be taken into account. The issue is not only what role we hope that parents play in their children’s lives, but how the powers actually granted might be used and abused for better or worse. Thinking only in terms of how the best parents conduct themselves is a mistake; it is also necessary to account for what the worst parents can get away with.
In addition, children need to have their affirmative rights respected. As renowned child rights expert Michael Freeman explains:
The most fundamental of rights is the right to possess rights.
Treating children as simply objects of concern rather than the bearers of rights “fails to appreciate the importance of rights where relationships, for whatever reason, are poor or have broken down,” according to Freeman.
“Is the abused child to rely on those abusive relationships?” asks Freeman. Or, what about the adolescent “who cannot discuss contraception or abortion with her parents, perhaps because she is being sexually abused by a family member?”
As such, there are instances where the child must have rights and agency that is independent of parents and/or government, including circumstances where parents and/or government are absent, abusive, unfit, fail to act in the best interests of children, or where a child has the right to privacy in which, as you have said, “make our own decisions about our bodies.”
Your career, as a long-time human rights advocate and environmentalist who has championed the affirmative rights of children to be protected from environmental and chemical threats to their health and well-being, is something to be respected.
It is for this reason that I reach out to you about the lawsuit your organization, the Children’s Health Defense (CHD), filed that, at best, ignores the existence of basic human rights of children, and at worst, actively guts the self-determination of mature adolescents in their health care as being somehow “unconstitutional” unless their views are fully aligned with those of their parents.
Quite frankly, the language, rationale, and proposed remedies in your lawsuit are perplexing, disturbing, and shocking. It seeks to reverse over a century of progress for children in finally getting the courts, government, and society to recognize that they are the independent persons with basic human and constitutional rights. Instead, the CHD lawsuit would attempt to twist the Constitution’s Bill of Rights against the recognition and protection of the fundamental rights and interests of children.
As such, I am calling on you, as someone who claims to represent the interests of children, to withdraw your lawsuit and, at the very least, strip out those provisions that would undermine children’s rights.
The Children’s Health Defense Lawsuit Undermines Fundamental Protections and Rights of Children
Unfortunately, the lawsuit filed by CHD and the Parental Rights Foundation on July 12, 2021, is “seeking a court order to declare that the D.C. Minor Consent for Vaccinations Amendment Act of 2020 is unconstitutional.”
That legislation was overwhelmingly passed by the D.C. Council by a vote of 10–3 and was originally drafted to allow adolescents the ability to assert their health care rights and obtain public health protections and prevention from disease for themselves and their communities by getting vaccines recommended by the United States Advisory Committee on Immunization Practices (ACIP), even if they do not have parental consent.
Although the vast majority of vaccines obtained by children are provided with full knowledge of parents, the D.C. law was originally introduced in response to the measles outbreaks across the country in communities where parents were opting not to vaccinate their children and leading to the rise of vaccine-preventable measles and other diseases in children and communities across the country. The Centers for Disease Control and Prevention (CDC) reported 1,281 individual cases of measles in 31 states for 2019, which was the highest number of cases in the U.S. since 1992.
The Minor Consent for Vaccinations Amendment Act of 2020 was passed on Nov. 17, 2020, and added immunizations to a D.C. “Mature Minor” statute providing for adolescent consent of health care services related to potentially life-saving care, reproductive health, substance abuse, mental health, and sexually transmitted diseases. Although the vast majority of health care services provided to adolescents are supported by parents, the D.C. law (like that in a number of states) recognizes the unique circumstances whereby delay in health treatment can harm a child, the relationship between children and their parents are strained or abusive, parents are absent or unfit, youth are emancipated from their parents, parents are not in agreement as to the upbringing of children, kids are in foster or kinship care and not in custody of their parents, parents have embraced disinformation, or the confidentiality and privacy rights of youth are at risk.
On whether we support or reject vaccinations for our nation’s children, it is clear that we fundamentally disagree. At First Focus on Children, we recognize the historical and ongoing role that vaccinations have played in improving the health of children and Children’s Health Defense is decidedly anti-vaccine.
This open letter, however, is not an attempt to persuade you to change your position on vaccines. Instead, I am writing to urge you to withdraw the lawsuit that CHD filed with the Parental Rights Foundation because it threatens the rights and liberty of youth by asserting that the “constitutional rights of parents” grants them the ability to deny adolescents the fundamental rights and liberty to protect their own lives, health, safety, privacy, well-being, best interests, and future. Personal autonomy, informed consent, privacy, and confidentiality are readily accepted basic patient rights that should not apply only to people who have reached some sort of “magical age of 18.”
Nearly a half century ago, in Planned Parenthood of Central Missouri v. Danforth (1976), Justice Harry Blackmun affirmed the Constitutional rights of minors. He explained:
Constitutional rights do not mature and come into being magically only when one attains the state-defined age of majority. Minors, as well as adults, are protected by the Constitution, and possess constitutional rights.
This court decision and a number of others have affirmed the right to privacy and confidentiality of young people to health care services over decades of time. This includes the right to bodily self-determination and integrity to obtain health services, as well as an array of other fundamental human rights. Disturbingly, the decades of increasing recognition of the rights of children and youth are completely ignored and dismissed by the CHD and Parental Rights Foundation lawsuit.
In fact, with potentially tragic consequences, your lawsuit deliberately undermines the affirmative rights of young people to independently seek out health care services, such as treatment or counseling for suicide prevention, mental health, substance abuse, cancer screening, family planning and reproductive health services, infectious diseases, or even emergency care services without first obtaining parental consent.
This would be disastrous to the lives and well-being of children and youth. As an example, there are instances where parents are simply uninformed about basic science and understanding related to health care.
The law in Idaho highlights the problem in which parental rights are granted in virtually all matters related to the health of children, including the use of faith healing rather than medical treatment for children. This has resulted in tragic health outcomes, including the deaths of children. The Washington Post reported in 2018 that:
Child advocates estimate that 183 Idaho children have died because of withheld medical treatment since states across the nation enacted faith-healing exemptions in the early 1970s.
The CHD and Parental Rights Foundation lawsuit asserts “parental rights” and “religious freedom” in denying children access to potentially life-saving vaccines (child rights and best interests). Even short of death, the parental withholding of medical treatment in Idaho has created significant and life-long health consequences for some children. A ruling denying children fundamental rights over medical decisions would potentially have similar consequences.
Fortunately, as Matthew Feigenbaum points out, “Courts have consistently overridden the parents’ religious objections in these cases on the ground that life, not premature, avoidable death, is in the child’s best interest.”
The CHD and Parental Rights Foundation lawsuit also calls for the elimination of confidentiality and privacy protections for children by asserting Fifth Amendment protections for parents should override them. However, as Abigail English and Dr. Carol Ford explain in The Journal of Pediatrics, confidentiality and privacy is critically important to adolescents in various circumstances:
In the absence of confidentiality protections, some adolescents forego care entirely, some delay care or avoid visiting providers they perceive as not assuring confidentiality, and some limit the information they are willing to disclose.
These findings have provided a strong rationale for protecting the confidentiality of adolescents’ health information and their communications with healthcare providers. The underlying rationale for confidentiality in adolescent healthcare is to protect the health of adolescents and promote public health goals such as: reducing unintended teen pregnancy, sexually transmitted infections (STIs), and substance abuse; and encouraging early intervention to address depression.
English and Ford add:
Not all adolescents have parents who are available, willing, and able to communicate with them about sensitive issues, and not all adolescents are willing to share information about all sensitive health issues with their parents. In this context, confidential consultation with a healthcare provider can play an essential role. Eliciting candid information about adolescent concerns, health behaviors, and symptoms clearly increases clinicians’ opportunities to address concerns, provide evidence-based prevention and risk-reduction counseling, and ensure timely diagnosis and treatment.
In light of the potential threats to the health of children posed by your lawsuit’s gutting of child rights, self-determination, privacy, and confidentiality, I would urge you to withdraw your lawsuit and remove language that threatens the fundamental rights of children and youth.
The Children’s Health Defense Lawsuit Also Undermines the Role of Government in Protecting Children
The CHD and Parental Rights Foundation lawsuit also undermines the government’s role in protecting children and promoting their education, health, safety, economic security, well-being, and best interests. The language attempts to establish a constitutional standard by which a health care provider cannot determine that a “minor child can provide informed consent” unless the government has proven that a parent is “unfit” and that there is a “compelling interest” for the government to override parental decisions.
Even worse, absent the full removal of a child from the custody of a parent, the lawsuit seeks to sideline the government from acting to protect the health of children and youth in matters where parents fail, refuse, cannot agree upon, or are unavailable to address health care concerns for children and youth related to emergency care, infectious disease, mental health, substance abuse, and sexual and reproductive health.
Even worse, if the constitutional standard proposed by CHD and the Parental Rights Foundation were established, government would be limited in protecting kids from other parental decisions, such as the imposition of female genital mutilation, “conversion therapy,” “rebirthing therapy,” certain types of involuntary institutionalization of children, seclusion and restraint, human subject research, forced sterilization of children with disabilities, and other harmful or detrimental “care or treatment.”
Sidelining government from affirmatively protecting children in such cases is bad enough, but the CHD and Parental Rights Foundation lawsuit seeks to take the more radical step of creating a legal duty for government, schools, and private health care providers to police the lives of children by way of enforcing the decisions of parents that have yet to be declared “unfit,” regardless of whether those decisions clearly violate the rights, needs, or autonomy of children and youth.
This is wrong.
As Justice John Paul Stevens wrote in Troxel vs. Granville (2000):
Cases like this do not present a bipolar struggle between the parents and the State over who has final authority to determine what is in a child’s best interests. There is at minimum a third individual, whose interests are implicated in every case to which the statute applies — the child.
The CHD and Parental Rights Foundation lawsuit fails to achieve that balance between the role of parents, government, and children.
The best outcomes for children occur when parents and government (executive, legislative, and/or the courts) are: (1) acting in the “best interests” of children; (2) recognizing their duties and responsibilities toward children; and, (3) including and respecting the voice, agency, and self-determination of children with respect to their own health, bodies, and lives.
Instead, the CHD and Parental Rights Foundation lawsuit seeks to: (1) assert parental constitutional rights over the lives of children; (2) dismiss the rights, needs, and voice of children even when it comes to their own life and well-being; and, (3) convert the role of government from protecting the best interests of children to an enforcer of parental control.
In short, the CHD and Parental Rights Foundation lawsuit completely ignores, dismisses, and undermines the rights of children. If successful, it could have sweeping ramifications for children with potentially tragic and life-threatening consequences.
The Children’s Health Defense Lawsuit Seeks Radically New Parental Barriers to Children’s Rights
As noted above, the CHD and Parental Rights Foundation seeks to prohibit the assertion of child rights and health care protections and any government action to defend the health and well-being of children absent a “finding of parental unfitness.”
A parental “fitness” test would be radical and effectively undermine the ability of states and children and youth to weigh in on the best interests of children for a period of years, which to kids is often a lifetime. To reach of determination that a parent is “unfit” requires states to be notified, investigate, file a determination against parent(s), undergo due process procedures, and receive a court ruling that determines parents to be abusive, neglectful, or to have abandoned their children. This can take years and that delay undermines the fundamental rights of children and youth to assert their fundamental rights. The passage of years is clearly unacceptable and potentially life-threatening or life-altering with respect to many health care decisions and obviously destroys the privacy and confidentiality of children and youth.
This is also terrible for parents, as it forces government to engage in the involuntary termination of the parent’s custody of their child in order to protect the health care rights and “best interests” of the child, even in cases where a parent is not “abusive” but may simply be uninformed, irrational, undecided, confused, or in disagreement with medical professionals, their spouse, their child, and/or a court in the matter. This is ludicrous and serves nobody’s interests — not children, parents, government, or the courts.
Again, putting aside the fact that there is little we would likely agree upon with respect to immunizations for children, as CHD is anti-vaccination and First Focus on Children is committed to supporting public health protections and prevention from infectious and life-threatening diseases through immunizations, my purpose of this open letter is not to debate the merits of vaccines.
Instead, it is to urge you to withdraw your lawsuit. If you choose to refile it, Please do so in a manner that does not undermine the rights of children in such a sweeping and disturbing manner.
As Freeman points out:
Those who think the courts are right to take decisions away from children are unashamedly paternalistic. . . The burden lies on those who wish to deny rights to children.
Again, as you have said in the past, your work has focused on “our rights to make our own decisions about our bodies.” If you are truly an advocate for children and youth, it is antithetical to your past commitment and work to argue that young people do not deserve the same basic fundamental human rights as others.
Our children and youth desperately need a legal system that rejects judicial philosophies that treat children as “chattel” or the property of parents, and does not assume that children lack independent reason, agency, or understanding of their own “best interests.” The law should balance the interests and rights of: (1) parents (who have a developed relationship with a child); (2) the state’s parens patriae role that should be focused on the protection and “best interests” of the child; and, (3) the child’s own fundamental rights, interests, and needs.
In fact, we would assert that in those rare circumstances where the parent and a child disagree over medical treatment decisions or a child seeks out privacy and confidentiality in a medical decision about their own life and body and is deemed to be a competent “Mature Minor” either by law or court, an adolescent’s health care decision in consultation with a health care professional should be determinate over a third-party veto sought by either parents, government, or your lawsuit.
Again, as Justice Blackmun ruled in Planned Parenthood of Central Missouri v. Danforth (1976):
Just as with the requirement of consent from the spouse, so here, the State does not have the constitutional authority to give a third party an absolute, and possibly arbitrary, veto over the decision of the physician and his patient to terminate the patient’s pregnancy, regardless of the reason for withholding the consent.
As there is a 45-year constitutionally established standard for a woman of any age to obtain an abortion, we strongly believe the same standard holds for “Mature Minor” decisions made with respect to a range of other health care services, including emergency care, mental health, substance abuse, family planning, and yes, immunizations.
Although it should not need to be said, if an issue is about children and youth, they should have fundamental rights with respect to their health, bodies, and lives. Your lawsuit fails our children.