Parental Rights Bill That Counteracts “Mature Minor Doctrine” Heading To Governor’s Desk

Image Credit: capitol.tn.gov

The Tennessee Conservative [By Paula Gomes] –

A bill that counteracts the “Mature Minor Doctrine” passed the House yesterday in a 74 to 25 vote split almost entirely along party lines.

Two Republicans – Representatives John Gillespie (R-Memphis-District 97) and Sam Whitson (R-Franklin-District 65) – voted against requiring parents to give permission before a minor is administered a vaccine and one Democrat Representative, Joe Towns, Jr. (D-Memphis-District 84), broke ranks to vote for parental rights.

HB1380 and its Senate counterpart SB1111 will now head to Governor Bill Lee’s desk, SB1111 having passed a Senate floor vote 21 to 6 on April 10th. In that vote, two Republicans were present but did not vote – Senators Becky Massey (R-Knoxville-District 6) and Ken Yager (R-Kingston-District 12) – and Senator Richard Briggs (R-Knoxville-District 7) voted against the bill along with five Democrats.

The COVID pandemic brought a lot of questions about parental authority to the forefront in Tennessee, including the question of who can consent to a minor child receiving a COVID19 vaccine. With the passage of this bill, the Tennessee General Assembly has made it clear that children cannot consent to vaccinations before they have reached the age of majority.  

On May 12th, 2021, Dr. Michelle Fiscus, State Medical Director in charge of immunization programs and vaccine-preventable diseases wrote a letter titled “Tennessee ‘Mature Minor’ Doctrine and Co-Administration of COVID-19 and routine immunizations.” Referring to the vote by the Advisory Committee on Immunization Practices to recommend the use of Pfizer’s COVID-19 vaccine in children ages 12 through 15 years of age, Fiscus wrote, “I thought it would be helpful to share Tennessee’s “mature minor” doctrine with our vaccinating partners.”   

Ficus went on to instruct vaccine dispensaries, such as Walgreens, on the application of 1987 Tennessee case law in which the Courts described the Rule of Sevens as a model for determining the age of consent. In the case of Cardwell v. Bechtol, the Tennessee Supreme Court adopted this “Rule of Sevens” as a judicial doctrine under common law because the Tennessee legislature had not legislatively set an age of consent for medical treatment of a minor.  
In the Cardwell case, the minor was actually 17 years and 7 months old, and she had consented to treatment – manipulation of her spine – by a blind osteopath resulting in an injury to her spine.

Her parents sued for medical malpractice and battery. The case was dismissed on the Rule of Sevens doctrine. 

Fiscus’ guidance resulted in an uproar from Tennessee parents and legislators. Executive branch officials backed down from taking the position that parental consent was not required for children over age 14. On June 3, 2021, Department of Health Commissioner Lisa Piercey and Education Commissioner Penny Schwinn wrote a letter stating that while the U.S. Food and Drug Administration approved the emergency use of Pfizer-BionTech COVID-19 vaccine for children as young as 12, parental consent was required before administering the vaccine to minors. 

Fiscus was later terminated and sued Piercey and other Tennessee officials for defamation.

Commissioner Piercey left the Health Department in May 2022 to join the “investment” sector of healthcare.

Commissioner Penny Schwinn remains the head of the Department of Education, but she was also called to back down from government overreach when she announced that every child in Tennessee should be subject to a “well-being check” when COVID shut downs started in early 2020. 

HB1380/SB1111 also does not permit a child in state custody to be vaccinated unless there is a court order or the parents have given prior consent. However, former family rights litigator, Connie Reguli says, “The bill does not establish any findings a court must make to order vaccination, apparently leaving it up to the medical opinions of the judge.”   

The sponsors cited two Supreme Court opinions in the bill which establish parental rights under the Fourteenth Amendment – Parham v. J.R., 1979, which states, “Simply because the decision of a parent is not agreeable to the child, or because it involves risks, does not automatically transfer the power to make that decision from the parents to some agency or officer of the state” and Troxel v. Granville, 2000, which states that the Fourteenth Amendment’s Due Process Clause has a substantive component that provides heightened protection against government interference with certain fundamental rights and liberty interests, including parents’ fundamental right to make decisions concerning the care, custody, and control of their children.

Of note, the bill elevates an unauthorized vaccine to an “unlawful practice” subjecting a medical provider to losing their license, and of course, presumably will allow medical malpractice lawsuits against the doctors. It is hard to tell if any doctor could be held responsible for vaccine injury under this law, notwithstanding the Vaccine Injury Act of 1986.

“At least two legal issues may require greater scrutiny by the General Assembly now that they have adopted parental rights as a public policy,” said Reguli.  

Reguli describes a pending contrast between parental consent for medical treatment and parental consent for mental health treatment. This bill does not address a requirement for parental consent for mental health treatment for children in schools. In fact, Tennessee operates a STARS program within the school setting which boasts that it provides individual therapy for students based on referrals from teachers and administrators. No where in its brochure does it state that parental consent is required.  

Also troubling is the contrast between the public policy of parental rights under the Fourteenth Amendment and the passage of HB1109/SB1319 sponsored by Representative Ron Travis (R-Dayton-District 31) and Senator Paul Bailey (R-Sparta-District 15). This law criminalized any relative in possession of a child that “knew” that DCS obtained an ex parte (secret) order of removal. The bill passed the Senate and House on April 13th and awaits the Governor’s signature. Noticeably lacking from this legislation are due process protections for parents from aggressive government agents. 

The General Assembly’s newly stated public policy on parental rights has much room to be tested, and perhaps new legislation will address the loopholes next year.  

About the Author: Paula Gomes is a Tennessee resident and reporter for The Tennessee Conservative. You can reach Paula at paula@tennesseeconservativenews.com.