State Representative Tommy Pope of York County has introduced H.4757, a bill that has been dubbed the “Parental Rights Act” and has over 50 co-sponsors, including many Freedom Caucus members. While it is being advertised by the sponsors and several conservative organizations as a way to protect the freedom of parents in South Carolina, there are parts of this bill that raise red flags.
There are valid concerns necessitating reform of Title 59 and Title 63. However, state legislators appear to be throwing a bone at an aggrieved group of parents while simultaneously adding a few poison pills. This old bone has been chewed up and spit out several times, as much of what is listed as new “parental rights”, is already codified in other sections of the SC Code. Furthermore, this bill creates more administrative red tape while limiting state liability and broadening the definition of “parent”.
The best way to reaffirm parental rights is to roll back legislation that hinder those rights. Any bill that introduces a new article into the Code of Laws should be analyzed closely. The bills that should be supported are those that delete areas within the current code that usurp parental authority and distribute it to agents of the State or State funded entities. For example, a bill that begins: “Chapter #, Section # of the S.C. Code is amended by repealing…” is probably more effective than “Chapter #, Section # of the S.C. Code is amended by adding…”
While this bill does repeal two small sections of the SC Code, it doesn’t go far enough.
Before we jump into the main issues of H.4757, let’s take a look at what SC Code of Law already states about parental rights.
Rights & Duties of Parents According to SC Code of Law
Section 63-5-30 outline the rights and duties of parents in the South Carolina Children’s Code. This establishes that the mother and father are “joint natural guardians” of their children and are equally charged with their welfare and education. Both the mother and father have equal power, rights, and duties. Each parent also has “equal access and the same right to obtain all educational records and medical records” of their minor children, as well as the right to participate in their children’s school activities unless prohibited by order of the court. Neither parent shall forcibly take a take a child from the guardianship of the parents legally entitled to custody of the child.
Instead of adding a new article to the code, why not elucidate particulars that are already mentioned by adding a few words to this section?
H.4757 Redefines “Parent”
Section 3 of this bill redefines “parent” to include an “entity” or “an individual who has been granted medical decision-making authority over the child under state law or by court order.” This bill defines “medical decision-making authority” as “the power granted by the State to a nonparent to make important decisions regarding a child’s healthcare.”
In the case of court-appointed custodians, they are already given the ability to care for the medical needs, educational needs, etc. of a child in Chapter 7, Title 63. Furthermore, the SC Code already has made it clear that “caregivers” and “guardians” are not “parents.” So, why are we broadening the definition of a parent?
Legal loophole
This bill undermines parental rights AGAIN in Section 63-5-340(B) “Except as otherwise provided by law, this section, or by court order, a person or healthcare provider must obtain the consent of a parent of a minor before procuring, providing a referral for, or rendering healthcare to the minor.”
“Except as otherwise provided by law” renders the whole sentence unnecessary and useless. Why even add this section at all if you are just going to leave the largest loophole in the beginning of the sentence?
Unnecessary language
The rest of the language in Section 63-5-340 is unnecessary and is a duplicate of what is already found in the Code. 63-7-620, 63-7-20, 15-1-310, 44-61-310 among others. Why are we duplicating law that’s already on the books?
Bizarre Power Given to the Attorney General
Currently, SC Code outlines the process for people to submit complaints and includes checks and balances. Citizens can send complaints to the Local Education Agency (LEA), about the LEA to the Board of Education, and about the Board of Education to the Administrative Law Court. Once a person has gone through the appropriate reconciliatory steps to no avail, they can bring an action against any State Department to the Circuit Court.
In H.4757, that entire process is changed and gives broad, sweeping decision-making power to the Attorney General.
Section 59-28-350 of the H.4757 prescribes the steps a parent would take if they felt that their parental rights numerated in the bill are being infringed (which is already addressed in SC Code) but then turns around and grants the Attorney General the decision-making authority and power to dismiss any complaints made against the State in violation of the bill. H.4757 explicitly states that the Attorney General can “bring an action to enforce this section. Nothing herein limits the authority of the Attorney General, the State or any state agency or officer to institute or intervene in any proceeding.” (Section 59-28-350(F))
Binds Parent to the Will of the Attorney General
Should every parent (whatever “parent” means anymore) be looking to the Attorney General as their savior? The Attorney General is a lawyer who fights for the interests of the State.
Section 59-28-350 (H)(1-5) of H.4757 binds the parent to a process of appealing to the Attorney General (AG), who works for the interest of the State and its departments, prior to bringing an action against the department to the circuit court.
The bill requires that the circuit court dismiss any actions filed before “exhaustion of administrative remedies” from the Attorney General’s office. While it requires that the Attorney General commence an investigatory or remedial effort within thirty (30) days of the complaint, there is no deadline by which to decide and no telling how long it might take to “exhaust” that remedy.
Nowhere else in the SC Code of Laws is a person required to go through the Attorney General before appealing to the circuit court.The Attorney General must be served when any other state agency is served legal papers. He has no authority to order changes to department regulations or to existing law. This middleman blockade through the Attorney General that is presented in this legislation is not found anywhere else in SC Code.
If H.4757 passes, this will change the role of the SC Attorney General across the board and set a new standard of authority.
Grants Immunity to Entities
If the other sections weren’t alarming enough, this part of the bill goes full 1984 (or more like 1986) by granting legal immunity to entities that were deemed as acting in accordance with the “Parental Rights Act”.
Subsection (H)(6) would grant civil immunity to any entity which a parent alleges violated the act when the entity acted to comply with a written consent, authorization, or direction executed by a “parent” as defined in this section; or acts in substantial compliance with this article or written guidance or regulations issued by the Department of Public Health or by the Department of Mental Health implementing this section.” While it is laudable that we are no longer looking to the Centers for Disease Control and Prevention (CDC) for guidance, the measly $100,000 cap reveals the true intention of this clause.
This section might not even allow a cause of action to be brought against an entity that believes it has acted in pretty decent compliance with the bill. So…any entity that is “acting in substantial compliance with” the Parental Rights Act, complying with the wishes of a State defined “parent”, or following the guidance of the Departments of Public Health and Mental Health is protected from any cause of action which may be brought against it by an alleged violation of the act.
Potential For Backfire
Other states like Florida and Idaho that have implemented similar laws have suffered unintended consequences. To avoid the $5,000 per violation penalties, schools may start providing permission slips for everything. For example, getting a bandaid from a school nurse, participating in a routine vision screening, may result in parents being overburdened by the sheer volume of paperwork and teachers buried in more red tape rather than spending time in the classroom.
Because the bill allows for the recovery of attorneys fees, law firms may actively seek out parents to file suits and school districts may have to divert portions of their budget from classrooms to legal defense and increased insurance premiums.
There are other concerns regarding the contents of this bill such as a one-year statute of limitations (typically 2-3 years for most disputes in SC) and ambiguous subjective legal terms like “good faith compliance”, “good faith effort”, “on its face”, and “substantial compliance” by which the grounds for hearing a case could be decided.
The Silver Lining
There is at least one good portion of this bill and that is SECTION 6, which repeals current SC Code 63-5-350 and 63-5-370. This is what a true parental rights bill looks like.
Where is the H.4757 Now?
H.4757 is scheduled for a hearing on Tuesday, January 20th, 2025 in the House 3-M Medical and Health Affairs Subcommittee, located at the Blatt Building in Room 110. You can see the full agenda HERE.
Special thanks to SpartanburgCAN for their assistance in this analysis of H.4757.
UPDATE: H.4757 passed with a favorable report by a vote of 4-2 in the the House 3-M Medical and Health Affairs Subcommittee with two amendments. It will now go to the full committee, hearing is TBD.
Article posted with permission from Palmetto State Watch
