House Bill 1345

AN ACT TO EXEMPT ANY OFFICIAL, AGENT OR EMPLOYEE OF THE STATE OR A POLITICAL SUBDIVISION THEREOF FROM ENFORCING OR BEING ORDERED TO ENFORCE ANY FEDERAL DIRECTIVE THAT ALLOWS ANY MEDICAL, HEALTH CARE, BEHAVIORAL, OR MENTAL HEALTH TREATMENT, SERVICE, THERAPY OR COUNSELING TO AN UNEMANCIPATED MINOR WITHOUT PARENTAL NOTIFICATION OR CONSENT; TO PROVIDE A CAUSE OF ACTION BY A PARENT OR LEGAL GUARDIAN AGAINST ANY PERSON, CORPORATION OR OTHER ENTITY, WHO VIOLATES THE MEDICAL AND MENTAL HEALTH RELATED PARENTAL NOTIFICATION AND CONSENT REQUIREMENTS; TO PROVIDE AN EXCLUSION TO STUDENTS FROM PARTICIPATING IN A MENTAL HEALTH OR BEHAVIORAL HEALTH CLASS OR PROGRAM UNLESS AND UNTIL A PARENT OR GUARDIAN OF THE STUDENT CONSENTS IN WRITING TO SUCH PARTICIPATION; TO PROVIDE THAT ANY SCHOOL THAT VIOLATED THE PARENTAL NOTIFICATION REQUIREMENT SHALL BE SUBJECT TO CIVIL SUIT BY THE PARENT WHOSE RIGHTS TO NOTIFICATION AND CONSENT WERE VIOLATED; TO BRING FORWARD SECTION 41-41-3, MISSISSIPPI CODE OF 1972, FOR THE PURPOSE OF POSSIBLE AMENDMENTS; AND FOR RELATED PURPOSES.

WHEREAS, the Secretary of Health and Human Services ("HHS") has promulgated a regulation, 42 CFR, Section 59.10, providing that "Title X projects may not require consent of parents or guardians for the provision of services to minors, nor can any Title X project staff notify a parent or guardian before or after a minor has requested and/or received Title X family planning services." (See also Deanda v. Becerra, 645 F.Supp.3d 600, 607 (N.D. Tex. 2022)); and

WHEREAS, the authorizing statute for this regulation is Title X of the Public Health Service ("PHS") Act, 42 USCS Section 300 et seq.; and

WHEREAS, the text of the authorizing statute, 42 USCS Section 300(a), provides in pertinent part, "To the extent practical, entities which receive grants or contracts under this subsection shall encourage family participation in projects assisted under this subsection"; and

WHEREAS, the authorizing statute, as reflected by the quoted section above, does not prohibit parental notification or consent and, therefore, the regulation exceeds the authority of the authorizing statute; and

WHEREAS, nevertheless, the HHS Office of Population Affairs ("OPA"), through OPA Program Policy Notice 2014-01 (June 5, 2014), issued written guidance instructing grant recipients that they may not require parental consent for family planning services; and

WHEREAS, it is the purpose and intention of the Legislature to defend the rights of the state government and of the people of this state reserved to them in our federal system of government under the Ninth and Tenth Amendments to the United States Constitution and further codified in Mississippi law insofar as the rights of parents to govern and direct medical decisions of their children are concerned; and

WHEREAS, the United States Supreme Court has held that under the Tenth Amendment, "Congress cannot compel the States to enact or enforce a federal regulatory program ... Congress cannot circumvent that prohibition by conscripting the State's officers directly. The Federal Government may neither issue directives requiring the States to address particular problems, nor command the States' officers, or those of their political subdivisions, to administer or enforce a federal regulatory program." (Printz v. U.S., 521 U.S. 898, 935 (1997)): NOW, THEREFORE:

BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF MISSISSIPPI:

SECTION 1. (1) It is the intention and purpose of the Legislature by this act to provide a civil action for damages in favor of any parent whose parental rights related to access, notification and consent for the medical care, health care, health records, and mental health treatment of their children are violated.

(2) It is the further intention and purpose of the Legislature by this act to prohibit the officers of this state, or those of its political subdivisions, from administering or enforcing the referenced federal programs that impinge on parental rights.

SECTION 2. Any federal executive order, agency order, rule, guidance document, memorandum, directive, regulation or administrative interpretation of a law or statute enrolled by the United States Congress and signed by the President of the United States, including, without limitation, any provision of Title X of the Public Health Service ("PHS") Act, 42 USCS Section 300 et seq., 42 CFR Section 59.10, or the OPA Program Policy Notice 2014-01 (June 5, 2014), which allow any medical, health care, behavioral, or mental health treatment, service, therapy or counseling without parental notification or consent in contravention of the provisions of Section 41-41-3, shall not be enforced or ordered to be enforced by any official, agent or employee of this state or a political subdivision thereof, or any person acting under color of state law.

SECTION 3. (1) Notwithstanding any federal executive order, agency order, rule, guidance document, memorandum, directive, regulation or administrative interpretation of a law or statute enrolled by the United States Congress and signed by the President of the United States, including, without limitation, any provision of Title X of the Public Health Service ("PHS") Act, 42 USCS Section 300 et seq., 42 CFR Section 59.10, or the OPA Program Policy Notice 2014-01 (June 5, 2014), which allow any medical, healthcare, behavioral, or mental health treatment, service, therapy or counseling, without parental notification or consent in contravention of the provisions of Section 41-41-3, any person, corporation or other entity, who violates the medical and mental health related parental notification and consent requirements of the provisions of Section 41-41-3, may be subject to a civil suit for damages brought by any parent whose rights, secured by those sections, were violated. Relief available in such a civil suit may include, without limitation, actual damages, court costs, reasonable attorney fees as ordered by the court, and punitive damages if the violation satisfies the standards for imposition of punitive damages elsewhere provided by law.

(2) An individual may assert a violation of this act as a claim in any judicial or administrative proceeding or as defense in any judicial or administrative proceeding without regard to whether the proceeding is brought by or in the name of the government, any private person or any other party.

(3) An action under this act may be commenced, and relief may be granted, in a court of competent jurisdiction in the state without regard to whether the individual commencing the action has sought or exhausted available administrative remedies.

(4) Sovereign immunity shall not be an affirmative defense in any action pursuant to this act.

SECTION 4. (1) No student shall be required to participate in a mental health or behavioral health class or program unless and until a parent or guardian of the student consents in writing to such participation. If the instruction or program is a part of or is taught during a credit course, a student may be required to enroll in the course but shall not be required to receive instruction in or participate in the instruction or program unless and until a parent or guardian consents in writing.

(2) Any school district that violates the parental notification and consent requirements of this section may be subject to a civil suit for damages brought by any parent whose rights were violated.

SECTION 5. Section 41-41-3, Mississippi Code of 1972, is brought forward as follows:

41-41-3. (1) It is hereby recognized and established that, in addition to such other persons as may be so authorized and empowered, any one (1) of the following persons who is reasonably available, in descending order of priority, is authorized and empowered to consent on behalf of an unemancipated minor, either orally or otherwise, to any surgical or medical treatment or procedures not prohibited by law which may be suggested, recommended, prescribed or directed by a duly licensed physician:

(a) The minor's guardian or custodian.

(b) The minor's parent.

(d) The minor's grandparent.

(2) If none of the individuals eligible to act under subsection (1) is reasonably available, an adult who has exhibited special care and concern for the minor and who is reasonably available may act; the adult shall communicate the assumption of authority as promptly as practicable to the individuals specified in subsection (1) who can be readily contacted.

(3) Any female, regardless of age or marital status, is empowered to give consent for herself in connection with pregnancy or childbirth.

SECTION 6. If any one or more provisions, sections, subsections, sentences, clauses, phrases or words of this act or the application thereof to any person or circumstance is found to be unconstitutional, the same is hereby declared to be severable and the balance of this act shall remain effective notwithstanding such unconstitutionality. The Legislature hereby declares that it would have passed this act, and each provision, section, subsection, sentence, clause, phrase or word thereof, irrespective of the fact that any one or more provisions, sections, subsections, sentences, clauses, phrases or words be declared unconstitutional.

SECTION 7. This act shall take effect and be in force from and after July 1, 2024.