I

104TH CONGRESS

1ST SESSION H. R. 1946

To protect the fundamental right of a parent to direct the upbringing of

a child, and for other purposes.

IN THE HOUSE OF REPRESENTATIVES

JUNE 28, 1995

Mr. LARGENT (for himself, Mr. PARKER, Mr. ALLARD, Mr. BAKER of Louisiana, Mr. BARTLETT of Maryland, Mr. BARR, Mr. BARTON of Texas, Mr.

BRYANT of Tennessee, Mr. CALVERT, Mr. CHAMBLISS, Mrs.

CHENOWETH, Mr. CHRISTENSEN, Mr. CHRYSLER, Mr. CLEMENT, Mr.

COBURN, Mr. COMBEST, Mr. COOLEY, Mr. CRANE, Mr. CRAPO, Mr.

DELAY, Mr. DICKEY, Mr. DOOLITTLE, Mr. DORNAN, Mr. DUNCAN, Mr.

EMERSON, Mr. FORBES, Mr. FOX of Pennsylvania, Mr. GOODLATTE, Mr.

GRAHAM, Mr. HASTERT, Mr. HASTINGS of Washington, Mr. HAYWORTH,

Mr. HEFLEY, Mr. HILLEARY, Mr. HOSTETTLER, Mr. HUTCHINSON, Mr.

INGLIS of South Carolina, Mr. KNOLLENBERG, Mr. LEWIS of Kentucky,

Mr. METCALF, Mr. MONTGOMERY, Mrs. MYRICK, Mr. NEUMANN, Mr.

PETRI, Mr. PORTER, Mr. QUILLEN, Mr. RAHALL, Mr. ROBERTS, Mr.

SALMON, Mrs. SEASTRAND, Mr. SENSENBRENNER, Mr. SHADEGG, Mrs.

SMITH of Washington, Mr. SOLOMON, Mr. STEARNS, Mr. STOCKMAN, Mr.

STUMP, Mr. TATE, Mr. TAUZIN, Mr. TAYLOR of North Carolina, Mr.

TIAHRT, Mr. THORNBERRY, Mrs. VUCANOVICH, Mr. WAMP, Mr. WATTS

of Oklahoma, Mr. WELLER, Mr. WICKER, and Mr. YOUNG of Alaska) introduced the following bill; which was referred to the Committee on the

Judiciary

A BILL

To protect the fundamental right of a parent to direct the

upbringing of a child, and for other purposes.

1 Be it enacted by the Senate and House of Representa2 tives of the United States of America in Congress assembled,
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1 SECTION 1. SHORT TITLE.

2 This Act may be cited as the ‘‘Parental Rights and

3 Responsibilities Act of 1995’’.

4 SEC. 2. FINDINGS AND PURPOSES.

5 (a) FINDINGS.—Congress finds that—

6 (1) the Supreme Court has regarded the right

7 of parents to direct the upbringing of their children

8 as a fundamental right implicit in the concept of or9 dered liberty within the 14th amendment to the

10 Constitution of the United States, as specified in

11 Meyer v. Nebraska, 262 U.S. 390 (1923) and Pierce

12 v. Society of Sisters, 268 U.S. 510 (1925);

13 (2) the role of parents in the raising and

14 rearing of their children is of inestimable value and

15 deserving of both praise and protection by all levels

16 of government;

17 (3) the tradition of western civilization recog18 nizes that parents have the responsibility to love,

19 nurture, train, and protect their children;

20 (4) some decisions of Federal and State courts

21 have treated the right of parents not as a fundamen22 tal right but as a nonfundamental right, resulting in

23 an improper standard of judicial review being ap24 plied to government conduct that adversely affects

25 parental rights and prerogatives;
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1 (5) parents face increasing intrusions into their

2 legitimate decisions and prerogatives by government

3 agencies in situations that do not involve traditional

4 understandings of abuse or neglect but simply are a

5 conflict of parenting philosophies;

6 (6) governments should not interfere in the de7 cisions and actions of parents without compelling

8 justification; and

9 (7) the traditional 4-step process used by courts

10 to evaluate cases concerning the right of parents de11 scribed in paragraph (1) appropriately balances the

12 interests of parents, children, and government.

13 (b) PURPOSES.—The purposes of this Act are—

14 (1) to protect the right of parents to direct the

15 upbringing of their children as a fundamental right;

16 (2) to protect children from abuse and neglect

17 as the terms have been traditionally defined and ap18 plied in statutory law, such protection being a com19 pelling government interest;

20 (3) while protecting the rights of parents, to ac21 knowledge that the rights involve responsibilities and

22 specifically that parents have the responsibility to

23 see that their children are educated, for the purposes

24 of literacy and self-sufficiency, as specified by the
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1 Supreme Court in Wisconsin v. Yoder, 406 U.S. 205

2 (1972);

3 (4) to preserve the common law tradition that

4 allows parental choices to prevail in a health care de5 cision for a child unless, by neglect or refusal, the

6 parental decision will result in danger to the child’s

7 life or result in serious physical injury of the child;

8 (5) to fix a standard of judicial review for pa9 rental rights, leaving to the courts the application of

10 the rights in particular cases based on the facts of

11 the cases and law as applied to the facts; and

12 (6) to reestablish a 4-step process to evaluate

13 cases concerning the right of parents described in

14 paragraph (1) that—

15 (A) requires a parent to initially dem16 onstrate that—

17 (i) the action in question arises from

18 the right of the parent to direct the up19 bringing of a child; and

20 (ii) a government has interfered with

21 or usurped the right; and

22 (B) shifts the burdens of production and

23 persuasion to the government to demonstrate

24 that—
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1 (i) the interference or usurpation is

2 essential to accomplish a compelling gov3 ernmental interest; and

4 (ii) the method of intervention or

5 usurpation used by the government is the

6 least restrictive means of accomplishing

7 the compelling interest.

8 SEC. 3. DEFINITIONS.

9 As used in this Act:

10 (1) APPROPRIATE EVIDENCE.—The term ‘‘ap11 propriate evidence’’ means—

12 (A) for a case in which a government seeks

13 a temporary or preliminary action or order, ex14 cept cases which terminate parental custody or

15 visitation, evidence that demonstrates probable

16 cause; and

17 (B) for a case in which the government

18 seeks a final action or order, or in which it

19 seeks to terminate parental custody or visita20 tion, clear and convincing evidence.

21 (2) CHILD.—The term ‘‘child’’ has the meaning

22 provided by State law.

23 (3) PARENT.—The term ‘‘parent’’ has the

24 meaning provided by State law.
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1 (4) RIGHT OF A PARENT TO DIRECT THE UP2 BRINGING OF A CHILD.—

3 (A) IN GENERAL.—The term ‘‘right of a

4 parent to direct the upbringing of a child’’ in5 cludes, but is not limited to a right of a parent

6 regarding—

7 (i) directing or providing for the edu8 cation of the child;

9 (ii) making a health care decision for

10 the child, except as provided in subpara11 graph (B);

12 (iii) disciplining the child, including

13 reasonable corporal discipline, except as

14 provided in subparagraph (C); and

15 (iv) directing or providing for the reli16 gious teaching of the child.

17 (B) NO APPLICATION TO PARENTAL DECI18 SIONS ON HEALTH CARE.—The term ‘‘right of

19 a parent to direct the upbringing of a child’’

20 shall not include a right of a parent to make a

21 decision on health care for the child that, by ne22 glect or refusal, will result in danger to the life

23 of the child or in serious physical injury to the

24 child.
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1 (C) NO APPLICATION TO ABUSE AND NE2 GLECT.—The term ‘‘right of a parent to direct

3 the upbringing of a child’’ shall not include a

4 right of a parent to act or refrain from acting

5 in a manner that constitutes abuse or neglect of

6 a child, as the terms have traditionally been de7 fined.

8 (5) STATE.—The term ‘‘State’’ includes the

9 District of Columbia, the Commonwealth of Puerto

10 Rico, and each territory and possession of the Unit11 ed States.

12 SEC. 4. PROHIBITION ON INTERFERING WITH OR USURP13 ING RIGHTS OF PARENTS.

14 No Federal, State, or local government, or any offi15 cial of such a government acting under color of law, shall

16 interfere with or usurp the right of a parent to direct the

17 upbringing of the child of the parent.

18 SEC. 5. STRICT SCRUTINY.

19 No exception to section 4 shall be permitted, unless

20 the government or official is able to demonstrate, by ap21 propriate evidence, that the interference or usurpation is

22 essential to accomplish a compelling governmental interest

23 and is narrowly drawn or applied in a manner that is the

24 least restrictive means of accomplishing the compelling in25 terest.
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1 SEC. 6. CLAIM OR DEFENSE.

2 Any parent may raise a violation of this Act in an

3 action in a Federal or State court, or before an adminis4 trative tribunal, of appropriate jurisdiction as a claim or

5 a defense.

6 SEC. 7. DOMESTIC RELATIONS CASES AND DISPUTES BE7 TWEEN PARENTS.

8 This Act shall not apply to—

9 (1) domestic relations cases concerning the ap10 pointment of parental rights between parents in cus11 tody disputes; or

12 (2) any other dispute between parents.

13 SEC. 8. ATTORNEY’S FEES.

14 Subsections (b) and (c) of section 722 of the Revised

15 Statutes (42 U.S.C. 1988 (b) and (c)) (concerning the

16 award of attorney’s and expert fees) shall apply to cases

17 brought or defended under this Act. A person who uses

18 this Act to defend against a suit by a government de19 scribed in section 4 shall be construed to be the plaintiff

20 for the purposes of the application of such subsections.

Æ