The Right’s Attack on Children

“Parental rights” are all the rage now in some quarters. But when parents gain rights, who loses them? Children.

By Marci Hamilton

Tagged ChildrenCivil RightsPublic Health

Remember the Dark Ages in America for children? Child labor? No public schools? No vaccinations? Now, right-wing politicians, Christian nationalists, and Robert F. Kennedy Jr. are waging a multifront legislative campaign to bring back those Dark Ages. And they are succeeding.

The anti-vaxxers are responsible for increasing measles cases dramatically. By mid-March this year, there were already as many measles cases in the United States as in all of 2023. Presidential candidate Donald Trump has pledged to defund public schools that mandate childhood vaccines. And vaccines are just the tip of the iceberg of the religious right’s threats to our children. In states across the country, conservative lawmakers are rolling back child labor and compulsory education laws even as they enact extreme religious liberty laws that empower parents against their children. To pick just two examples, Arkansas enacted a law last year that halted the requirement that employers verify the age of child workers, and this legislative session, lawmakers in New Hampshire introduced a bill to exempt students aged 13 or older from compulsory school attendance if they pass a proficiency test.

These efforts amount to a full-scale campaign to overturn children’s rights in the name of “parental rights.” The right claims to be protecting children—but “parental rights” is all about parental power. What they are really doing is systematically trying to strip children of the rights and protections they have gained in the last century.

The Threat to Child Labor Laws

There was a time when children in the United States were forced to work like adults. There were no laws against child labor. Children were property. They worked in factories and mines for hardly any wages and with no health protections. In 1910, the U.S. Census counted no less than 18 percent of all children between the ages of 10 and 15 as being employed full-time. And that was only those who were counted.

The twentieth century would usher in restrictions on child labor, but early Progressive Era attempts to halt child labor failed before an unsympathetic Supreme Court. In 1918, the Court in Hammer v. Dagenhart ruled that a federal law regulating the movement of goods resulting from child labor was unconstitutional, holding that Congress lacked the power to equalize working conditions under the Commerce Clause. It wasn’t until 23 years later, in U.S. v. Darby, that the Court overturned Hammer and permitted the federal government to enact legislation to protect the interests of employees in general, including children. Then, in a landmark decision in 1944, the Supreme Court continued to protect children’s interests by upholding Massachusetts’s child labor laws against claims they violated religious free exercise and parental rights. In Prince v. Massachusetts, the Court stated: “Parents may be free to become martyrs themselves. But it does not follow they are free, in identical circumstances, to make martyrs of their children before they have reached the age of full and legal discretion when they can make that choice for themselves.”

In a concurring opinion in Sackett v. EPA last year, Justice Clarence Thomas, joined by Justice Neil Gorsuch, stated he would overrule Darby. Overturning Darby would kill nearly all federal workplace regulation—including child labor bans. Combined with the extreme religious liberty laws discussed below, it would also place Prince at risk. Despite Darby’s long pedigree, many conservatives favor its reversal, and the six arch-conservative Catholics on the Court have already established their lack of respect for precedent.

Meanwhile, violations of child labor laws are increasing, and in just the past three years, 13 states have enacted bills that weakened child labor protections.

The Attack on Compulsory Education

Compulsory education is both an important bulwark against child labor and a necessary institution for teaching children to advocate for themselves as full, independent citizens. The first compulsory education law appeared in 1852 in Massachusetts, and more soon spread across the North and West. But in 1972, the Supreme Court in Wisconsin v. Yoder permitted the Amish to refuse to educate their children through high school based on their religious beliefs so that the children could work in the fields. The Court acknowledged the compelling need for education in a representative democracy but let this one faith avoid compulsory education. Tragically and predictably, Yoder opened the door to the permissible educational neglect of generations of American children under the pretext of religion.

Depriving a child of a high school degree delivers them to adulthood without the minimum required to succeed in life. It makes them vulnerable to religious cults who use their ignorance of the outside world to control them. The far right and religious cults want to produce stunted children who cannot exercise their potential and their full rights as American citizens.

Just ask the people who have not been educated. Former Amish adults deprived of a full education have formed the Amish Heritage Foundation to fight back and establish children’s rights to education. The Young Advocates for Fair Education organization in New York advocates for the uneducated children of ultra-Orthodox communities, who are also denied the basic tools to contribute to society—math, science, history, and English.

Since the 1990s, the religious right, led by the zealot Michael Farris, has fought for unaccountable home schooling and parental rights. Although states have permitted home schooling, the movement is now trying to avoid any home-schooling requirements or parent accountability. For example, Republicans in West Virginia just introduced a bill to block testing and state progress and reporting requirements for home-schooled students.

Home-schooled children are taken out of the public and private schools, which are required to educate to certain levels, and they lose a crucial social safety net. In schools, teachers and administrators are mandated reporters of abuse and neglect, breakfast and lunch are provided, special education is offered, and nurses and guidance counselors are available. The public and private schools are by no means perfect, but they are far more legally accountable to the needs of each child. Dismantling any regulation of home schooling would place vulnerable children in situations where they cannot protect themselves.

The right is also enthusiastically pushing bills to divert public tax dollars to religious schools and providers in states like Kentucky, Oklahoma, Tennessee, and Florida—even as public schools struggle to provide the education and support needed by poor and marginalized students.

The Battle Against Childhood Vaccines

Vaccinations were part of the movement against child labor and for compulsory public education. Massachusetts was the first state, in 1855, to require a smallpox vaccination for children to attend school. By 1963, 20 states mandated that children have an array of vaccines to go to school. By 1998, only four states did not have vaccine requirements for students entering kindergarten. In 2000, the United States declared it had eliminated measles.

Religious exemptions to childhood vaccines were commonplace through the early 1980s, when the advocate Rita Swan began her campaign to end such exemptions after she watched her son die of a treatable ailment because of her family’s adherence to Christian Science principles. The trend since then has been toward removing religious (and philosophical) exemptions in order to protect all children and adults. After a measles outbreak in Disneyland in 2014, California rolled back both its religious and philosophical exemptions. New York did the same in 2019.

Now, the religious right has put childhood vaccinations in their crosshairs. They have moved from their politically fueled COVID vaccine objections to a broad, vehement, and irrational rejection of childhood vaccines in general. They are following in the footsteps of Robert F. Kennedy Jr., who rejected vaccines starting in 1998 because a UK-based doctor, Andrew Wakefield, falsely and fraudulently claimed they caused autism. The scientific community has since definitively rejected the claim of a vaccine-autism connection, but that has not stopped RFK Jr. and others from raising millions for themselves by spreading disinformation and attacking science. On vaccinations, RFK Jr. and the religious right march in lockstep as a threat to children’s health.

There are two tactics being deployed by the conservatives who would risk increasing diseases in this country: add a religious exemption or enact an extreme religious liberty bill, known as a Religious Freedom Restoration Act. They are succeeding. Vaccine rates are declining and disease rates have risen, along with the danger not just to children but to pregnant women, the elderly, and the immunocompromised.

Until recently, Mississippi and West Virginia had the best childhood vaccination rates in the country. Neither had a religious exemption. Mississippi hasn’t had a measles case since 1992, while West Virginia hasn’t since 2002. Enter the Texas-based Informed Consent for Action Network, which challenged the Mississippi vaccine mandate in court in 2023, arguing that the First Amendment requires a religious exemption. Why? Because there is a health exemption, and the right has insisted that if there is any exception to a law, they also get one. Of course, a health exemption to vaccines exists to protect everyones health to the greatest possible degree, so arguing that a health exemption mandates a religious exemption is like saying the handicapped parking privilege requires a religious accommodation. Contrary to this long tradition of public health policy, the judge mistakenly ruled that there is a First Amendment right to avoid childhood vaccines. This is a wrongly decided and dangerous precedent.

Meanwhile, the West Virginia legislature is now toying with eviscerating the state’s success in eliminating childhood diseases by introducing a religious exemption to the childhood vaccine mandate. During the 2023-24 legislative sessions, a total of seven states have seen the introduction of bills that would water down childhood vaccine mandates. Besides West Virginia, these states include Florida, Kansas, Montana, New York, North Carolina, and Virginia. In April 2023, Montana passed a law that prohibits the use of vaccination status as evidence in various family law and child protection hearings. Banning such evidence makes it difficult to convict parents of child medical neglect and abuse.

The right’s antivax movement is damaging public health, especially children’s health. In 2023, a total of 58 measles cases were reported in 20 U.S. jurisdictions, up from six jurisdictions the previous year. (Florida, New York, and Virginia—three of the states with new exemptions—were among those 20 jurisdictions.) The risk that cases will continue to increase is high: If exposed to measles, 90 percent of those who are unvaccinated will contract the disease.

RFRAs Grant Parents “Super” Powers to Endanger Children

In 1993, Congress enacted the Religious Freedom Restoration Act (“RFRA”), which dramatically shifted the religious liberty calculus in this country. Before RFRA, religious actors were required to obey neutral, generally applicable laws like everyone else. This new statute, however, opened the door for any individual religious believer to avoid every single law in the country—local, county, state, and federal—unless the government could prove the law served a compelling, or necessary, government interest and was the least restrictive means possible for the believer. There was no consideration for the harm done by the religious actor breaking the law. Overnight, the First Amendment’s guarantee of the free exercise of religion was demoted, and RFRA became the religious right’s vehicle of choice for violating civil rights and holding itself unaccountable to the greater good.

I took RFRA to the Supreme Court, which in 1997 agreed with me, in City of Boerne v. Flores, that RFRA was unconstitutional. Far-right organizations began to peddle state-level RFRAs across the country, and religious lobbyists demanded that RFRA be reenacted. Democrats in Congress blinked, and a new federal RFRA was passed in 2000. State RFRAs proved to be powerful machines to undermine LGBTQ rights, and following Boerne, the pace of passage slowed down. That is, until this past year, in which we have seen new state bills introduced and passed.

The movement endangering children has rapidly spread. Wyoming, Michigan, and West Virginia have introduced bills to pass state RFRAs. Iowa and Utah have each already passed one this year, and Georgia is on track to do so. These laws create even more opportunities for the religiously motivated “parental rights” movement to endanger children. When Justice Gorsuch described the federal RFRA in a case about the application of anti-discrimination protections to LGBTQ employees, he rightly called it a “super statute, displacing the normal operation” of the law. That is precisely accurate. There is no good outcome for children where “parental rights” are supersized by a RFRA.

In another troubling move, Republicans in New Hampshire have introduced an amendment to the state constitution that would grant parents a “fundamental right and responsibility to direct the upbringing, education, and care of their minor children.” This amendment, which reframes the standard found in the federal RFRA and its state counterparts, would bar the state from applying any child protection law to a parent unless the law serves “a compelling interest…of the highest order…as applied to the [parent].” In other words, the state would face a higher barrier to enforcing child protection laws against parents, which inevitably means more children would be harmed.

The bill failed in the state House of Representatives in March, but as an indication of where the “parental rights” movement is headed, it is deeply concerning. The amendment does have an exception prohibiting a parent from ending the child’s life or physically harming the child, but it otherwise hands carte blanche power to parents to ignore the laws governing education, child labor, medical care, vaccination, child protective services, gun access, custody, adoption, emancipation, AI-generated sex abuse materials of the child, emotional and psychological abuse, and failure to provide a safe environment, among the many other laws that protect children. It would, in essence, return New Hampshire’s children to the nineteenth century, before they had rights against labor, medical neglect, and even abuse. Children need a social safety net that establishes a minimum level of protection—including from their parents.

Children Have Rights

The right is fighting on multiple fronts to erase children’s rights in the name of “parental rights.” The talk about “parental rights” is framed to sound like common sense. But this is little more than a pretext for an extreme political agenda that manipulates and exploits children to serve adult ends. The progress of centuries, from establishing public schools to enacting child labor laws to providing vaccinations, is under an unprecedented and organized siege.

In the United States, children’s rights exist as a patchwork network of laws against medical neglect and for vaccination, against child labor and for education, and against abuse and neglect and for thriving. Meanwhile, the rest of the world has committed to the more explicit and far-reaching rights laid out in the UN Convention on the Rights of the Child. By early 2015, almost all countries had signed on, including even the Roman Catholic Holy See, with only Somalia and the United States refusing to ratify. That year, Somalia changed course and ratified the treaty. The United States alone still refuses to ratify this treaty recognizing children’s basic human rights. Why? Because senators have pandered to “parental rights” believers, abandoning children to the whims of religious actors using God to justify child abuse. The far right has made the United States an outcast among nations.

The distinguished legal philosopher Joel Feinberg described children’s basic rights with the phrase “the right to an open future.” This inspiring vision, which treats a child not as property to be owned but rather a human with potential, is helpful in understanding the existing web of obligations to protect one’s child from harm: Parents should be morally and legally required to deliver a child to their eighteenth birthday unabused and armed with the tools of health and at least a high school education. From this perspective, the goal of childhood is to nurture children to become positive, educated participants with their own agency in a democratic society.

The time is now to call out the “parental rights” movement for what it is: a weapon against our children. The conservative forces scaling back children’s rights are not righteous. They would destroy our kids’ horizons and the future of this country.

Read more about ChildrenCivil RightsPublic Health

Marci Hamilton teaches constitutional law at the University of Pennsylvania and is the Founder and CEO of CHILD USA, a think tank and research institute devoted to children’s civil rights. She is the author of God vs. the Gavel: The Perils of Extreme Religious Liberty (Cambridge University Press, 2014).

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