II

104TH CONGRESS

1ST SESSION S. 984

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

a child, and for other purposes.

IN THE SENATE OF THE UNITED STATES

JUNE 29 (legislative day, JUNE 19), 1995

Mr. GRASSLEY (for himself, Mr. LOTT, Mr. HELMS, and Mr. COCHRAN) introduced the following bill; which was read twice and 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,

3 SECTION 1. SHORT TITLE.

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

5 Responsibilities Act of 1995’’.

6 SEC. 2. FINDINGS AND PURPOSES.

7 (a) FINDINGS.—Congress finds that—

8 (1) the Supreme Court has regarded the right

9 of parents to direct the upbringing of their children

10 as a fundamental right implicit in the concept of or-
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1 dered liberty within the 14th amendment to the

2 Constitution, as specified in Meyer v. Nebraska, 262

3 U.S. 390 (1923) and Pierce v. Society of Sisters,

4 268 U.S. 510 (1925);

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

6 rearing of their children is of inestimable value and

7 deserving of both praise and protection by all levels

8 of government;

9 (3) the tradition of western civilization recog10 nizes that parents have the responsibility to love,

11 nurture, train, and protect their children;

12 (4) some decisions of Federal and State courts

13 have treated the right of parents not as a fundamen14 tal right but as a nonfundamental right, resulting in

15 an improper standard of judicial review being ap16 plied to government conduct that adversely affects

17 parental rights and prerogatives;

18 (5) parents face increasing intrusions into their

19 legitimate decisions and prerogatives by government

20 agencies in situations that do not involve traditional

21 understandings of abuse or neglect but simply are a

22 conflict of parenting philosophies;

23 (6) governments should not interfere in the de24 cisions and actions of parents without compelling

25 justification; and
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1 (7) the traditional 4-step process used by courts

2 to evaluate cases concerning the right of parents de3 scribed in paragraph (1) appropriately balances the

4 interests of parents, children, and government.

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

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

7 upbringing of their children as a fundamental right;

8 (2) to protect children from abuse and neglect

9 as the terms have been traditionally defined and ap10 plied in State law, such protection being a compel11 ling government interest;

12 (3) while protecting the rights of parents, to ac13 knowledge that the rights involve responsibilities and

14 specifically that parents have the responsibility to

15 see that their children are educated, for the purposes

16 of literacy and self-sufficiency, as specified by the

17 Supreme Court in Wisconsin v. Yoder, 406 U.S. 205

18 (1972);

19 (4) to preserve the common law tradition that

20 allows parental choices to prevail in a health care de21 cision for a child unless, by neglect or refusal, the

22 parental decision will result in danger to the life of

23 the child or result in serious physical injury to the

24 child;
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1 (5) to fix a standard of judicial review for pa2 rental rights, leaving to the courts the application of

3 the rights in particular cases based on the facts of

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

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

6 cases concerning the right of parents described in

7 paragraph (1) that—

8 (A) requires a parent to initially dem9 onstrate that—

10 (i) the action in question arises from

11 the right of the parent to direct the up12 bringing of a child; and

13 (ii) a government has interfered with

14 or usurped the right; and

15 (B) shifts the burdens of production and

16 persuasion to the government to demonstrate

17 that—

18 (i) the interference or usurpation is

19 essential to accomplish a compelling gov20 ernmental interest; and

21 (ii) the method of intervention or

22 usurpation used by the government is the

23 least restrictive means of accomplishing

24 the compelling interest.
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1 SEC. 3. DEFINITIONS.

2 As used in this Act:

3 (1) APPROPRIATE EVIDENCE.—The term ‘‘ap4 propriate evidence’’ means—

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

6 a temporary or preliminary action or order, ex7 cept a case in which the government seeks to

8 terminate parental custody or visitation, evi9 dence that demonstrates probable cause; and

10 (B) for a case in which a government seeks

11 a final action or order, or in which the govern12 ment seeks to terminate parental custody or

13 visitation, clear and convincing evidence.

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

15 provided by State law.

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

17 meaning provided by State law.

18 (4) RIGHT OF A PARENT TO DIRECT THE UP19 BRINGING OF A CHILD.—

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

21 parent to direct the upbringing of a child’’ in22 cludes, but is not limited to a right of a parent

23 regarding—

24 (i) directing or providing for the edu25 cation of the child;
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1 (ii) making a health care decision for

2 the child, except as provided in subpara3 graph (B);

4 (iii) disciplining the child, including

5 reasonable corporal discipline, except as

6 provided in subparagraph (C); and

7 (iv) directing or providing for the reli8 gious teaching of the child.

9 (B) NO APPLICATION TO PARENTAL DECI10 SIONS ON HEALTH CARE.—The term ‘‘right of

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

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

13 decision on health care for the child that, by ne14 glect or refusal, will result in danger to the life

15 of the child or in serious physical injury to the

16 child.

17 (C) NO APPLICATION TO ABUSE AND NE18 GLECT.—The term ‘‘right of a parent to direct

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

20 right of a parent to act or refrain from acting

21 in a manner that constitutes abuse or neglect of

22 a child, as the terms have traditionally been de23 fined and applied in State law.
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1 SEC. 4. PROHIBITION ON INTERFERING WITH OR USURP2 ING RIGHTS OF PARENTS.

3 No Federal, State, or local government, or any offi4 cial of such a government acting under color of law, shall

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

6 upbringing of the child of the parent.

7 SEC. 5. STRICT SCRUTINY.

8 No exception to section 4 shall be permitted, unless

9 the government or official is able to demonstrate, by ap10 propriate evidence, that the interference or usurpation is

11 essential to accomplish a compelling governmental interest

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

13 least restrictive means of accomplishing the compelling in14 terest.

15 SEC. 6. CLAIM OR DEFENSE.

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

17 action in a Federal or State court, or before an adminis18 trative tribunal, of appropriate jurisdiction as a claim or

19 a defense.

20 SEC. 7. DOMESTIC RELATIONS CASES AND DISPUTES BE21 TWEEN PARENTS.

22 This Act shall not apply to—

23 (1) domestic relations cases concerning the ap24 pointment of parental rights between parents in cus25 tody disputes; or

26 (2) any other dispute between parents.
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1 SEC. 8. ATTORNEY’S FEES.

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

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

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

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

6 this Act to defend against a suit by a government de7 scribed in section 4 shall be construed to be the plaintiff

8 for the purposes of the application of such subsections.

Æ