Parental Authority in Vaccination Decisions Act

purpose of this act

This model policy affirms the fundamental right of parents to make medical decisions for their children, including decisions regarding immunization. It restores the proper locus of decision-making by ensuring that choices regarding non-therapeutic medical interventions remain with families rather than institutions.

This framework presents two legislative approaches. The preferred approach eliminates governmental immunization requirements and converts existing requirements into nonbinding recommendations. The alternative approach permits limited requirements only within strict statutory constraints that preserve meaningful parental choice and prohibit administrative overreach.

Background

American law has long recognized that parents, not the state, hold primary authority over decisions concerning their children’s care, custody, and control. This includes medical decision-making. The Supreme Court has repeatedly affirmed that parental authority is among the oldest of the fundamental liberty interests that the Court has recognized, protected by the Fourteenth Amendment and presumed to operate without state interference absent actual harm or imminent danger to a child. As the Court stated in Troxel v. Granville (2000), the right of parents to direct the care, custody, and control of their children is “perhaps the oldest of the fundamental liberty interests recognized by this Court.” The Court in Parham v. J.R. (1979) specifically addressed parental authority over medical decisions, rejecting “the statist notion that governmental power should supersede parental authority in all cases” as “repugnant to American tradition.”

As AFPI recently detailed in Protecting Parental Authority in Vaccination Decisions: A Framework for State Policy, modern immunization policy increasingly conditions participation in education and public life on compliance with uniform vaccination requirements. In practice, these requirements operate through schools and administrative systems that function as enforcement mechanisms—conditions attached to enrollment, attendance, and program eligibility that replace individualized parental judgment with institutional compliance.

The constitutional structure is clear: the state may not substitute its preferences for a parent’s medical judgment simply because a different choice might reduce a statistical risk. Immunization is a non-therapeutic medical intervention administered in the absence of present illness. A parent who evaluates the risks and benefits of a particular vaccine and reaches a different conclusion than a state health official has not abdicated responsibility—rather, she has exercised it. Where state action substantially burdens that exercise, constitutional principles require narrow application justified by compelling circumstances.

Recent decisions by the Supreme Court and state courts have reinforced those limits. Policies that substantially interfere with parental authority, including policies conditioning school access on compliance with immunization requirements, now face a serious constitutional challenge. Several states have moved to limit mandated enforcement or to strengthen exemption protections, while others have sought to further restrict parental discretion through coordinated regional policy. That divergence confirms that the policy question is no longer theoretical. “Who decides?” is not a rhetorical device. It is the operative question every state legislature must now answer.

This model policy provides a legislative answer grounded in constitutional principles.

THE PROBLEM

All states currently maintain some form of childhood immunization requirement tied to school attendance or participation in public programs. These requirements are typically established in statute but are experienced in practice through institutional enforcement—i.e., schools, childcare facilities, and public health agencies that condition access to education and services on compliance with vaccination requirements.

This current structure transfers medical decision-making from families to institutions. A parent who would otherwise weigh her child’s health history, the relevant risks, and her own informed judgment finds instead that the threshold question has already been answered as a condition for enrollment. Thus, the decision that remains is whether to comply or forgo access.

Even where exemptions exist, the formal right and the practical ability to exercise it are not always the same thing. Research documents that procedural complexity significantly reduces exemption rates even when parents want to claim them. Notarization requirements, mandatory counseling sessions, multi-step approval processes, and institutional practices that treat exemption as a disfavored outcome all operate to narrow the effective scope of a right that the legislature granted.

These conditions create a system in which immunization policy is shaped not only by statute, but by enforcement design, and in which the practical protection of parental authority depends on administrative implementation rather than legal guarantee. Without clear statutory limits, requirements expand and exemptions erode at the margins of implementation, beyond the reach of deliberate legislative action.

THE SOLUTION

This model policy presents two distinct legislative approaches for restoring parental authority in childhood immunization decisions.

The preferred approach—Path A, the Elimination Model—establishes a categorical rule: governmental entities may not impose or enforce immunization requirements. Existing requirements remain in statute but are converted by operation of law into nonbinding recommendations and are rendered unenforceable. This approach restores full parental discretion and eliminates the structural conditions that enable institutional coercion.

The alternative approach—Path B, the Constraint Model—provides a framework for states that retain immunization requirements. Under this approach, requirements may be enforced only if they comply with strict statutory conditions. These conditions include universal exemptions, prohibition of procedural barriers, natural immunity recognition, record portability protections, and clear limits on administrative and local expansion. Any requirement failing to satisfy these conditions is void and unenforceable. A sunset provision ensures that retained requirements are subject to periodic legislative review rather than indefinite administrative maintenance.

Both approaches operate from the same constitutional premise: parental authority governs medical decision-making for children. The question each path answers differently is whether that premise requires eliminating governmental immunization requirements entirely or permitting them only within boundaries that preserve meaningful parental choice.

STRUCTURE OF THIS MODEL POLICY

The provisions below are designed as modular statutory components. A state should adopt either Path A (Elimination Model) or Path B (Constraint Model), together with the Core Statutory Provisions that apply to both approaches. Section numbering, code placement, and conforming amendments should be determined by the drafting authority in each state.

CORE STATUTORY PROVISIONS

The following provisions apply under either Path A or Path B and should be included in any legislation adopting this framework.

SECTION 1. SHORT TITLE

This Act may be cited as the Parental Authority in Vaccination Decisions Act.

SECTION 2. LEGISLATIVE FINDINGS

The Legislature finds that:

1. Parents possess a fundamental right to direct the upbringing and medical care of their children.
2. Medical decision-making for a child, including decisions regarding immunization, falls within the protected sphere of parental authority.
3. The right of parents to make decisions concerning their children’s care, custody, and control is a fundamental liberty interest protected by the Fourteenth Amendment to the United States Constitution and, where applicable, the constitution of this State.
4. The state may intervene in parental decision-making only when necessary to prevent actual harm or immediate danger to a child. Declining a non-therapeutic medical intervention does not, standing alone, constitute harm or create imminent danger.
5. Laws that substantially burden fundamental parental rights must be narrowly tailored to serve a compelling governmental interest and must represent the least restrictive means of achieving that interest.
6. Broad or categorical immunization requirements imposed without individualized assessment, regardless of a child’s health history, prior immunity, or exposure risk, likely exceed constitutional limits where less restrictive alternatives are available.
7. Procedural conditions that make the exercise of statutory exemption rights difficult or inaccessible undermine legislative intent and effectively nullify rights the legislature intended to protect.
8. It is the intent of the Legislature that any immunization requirement operates within these constitutional constraints and does not infringe upon the fundamental rights of parents.

SECTION 3. DEFINITIONS

In this chapter:

1. “Immunization” means the administration of a vaccine intended to induce immunity against a disease.
2. “Parent” means a biological parent of a child, an adoptive parent of a child, or an individual who has been granted exclusive rights and authority over the welfare of a child under the laws of this State.
3. “Governmental entity” means any state agency, political subdivision, school district, public institution, or any other entity acting under color of state law.
4. “Immunization requirement” means any statute, rule, policy, practice, or condition that requires vaccination or conditions access to education, childcare, services, programs, benefits, or eligibility for enrollment or participation on vaccination status.

SECTION 4. PARENTAL AUTHORITY

A parent has the right to make medical decisions for the parent’s child, including decisions regarding immunization. This right includes the right to accept, decline, or delay a recommended immunization.

SECTION 5. MEDICAL NEGLECT

The lawful exercise of rights under this chapter does not constitute medical neglect and may not serve as the basis for:

1. an investigation by a state agency;
2. a referral to child protective services; or
3. a finding in any custody, dependency, or welfare proceeding.

SECTION 6. PREEMPTION

This chapter supersedes any conflicting law, rule, policy, or practice. A governmental entity or political subdivision may not impose or enforce requirements inconsistent with this chapter.

SECTION 7. ENFORCEMENT

(a) A governmental entity that imposes or enforces a requirement in violation of this chapter is subject to suit in a court of competent jurisdiction.

(b) A parent aggrieved by a violation of this chapter may bring a civil action for:

1. declaratory relief;
2. injunctive relief;
3. actual damages; and
4. reasonable attorney’s fees and costs.

(c) A government official who knowingly imposes or enforces a requirement in violation of this chapter may be held personally liable for damages.

(d) A requirement imposed or enforced in violation of this chapter is void and unenforceable.

SECTION 8. CONSTRUCTION

(a) This chapter shall be liberally construed in favor of parental authority.

(b) This chapter shall be construed to protect the fundamental rights of parents and to ensure that any burden on those rights is narrowly tailored to serve a compelling governmental interest.

(c) Any existing immunization requirement shall be construed as nonbinding to the extent it conflicts with this chapter.

SECTION 9. EXCLUSION PROHIBITED

(A) A governmental entity may not exclude a healthy person from education, childcare, services, or any program or setting based on vaccination status, including during a disease outbreak.

(B) Nothing in this chapter limits the authority of a governmental entity to exclude a person who is symptomatic or has received a diagnosis of a communicable disease from a school, childcare facility, or other setting under otherwise applicable law.

SECTION 10. SEVERABILITY

If any provision of this chapter or its application to any person or circumstance is held invalid, the remainder of this chapter and its application to other persons and circumstances remain in full effect.

SECTION 11. EFFECTIVE DATE

This Act takes effect on __________.