Senate Bill 2880

AN ACT TO PROVIDE THAT NO 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 THE BIPARTISAN SAFER COMMUNITIES ACT, WHICH ALLOWS ANY MEDICAL, HEALTHCARE, BEHAVIORAL, OR MENTAL HEALTH TREATMENT, SERVICE, THERAPY OR COUNSELING WITHOUT PARENTAL NOTIFICATION OR CONSENT IN CONTRAVENTION OF THE PROVISIONS OF MISSISSIPPI CODE SECTIONS 37-13-173 AND 41-41-3, AS APPLICABLE, SHALL BE ENFORCED OR ORDERED TO BE ENFORCED BY ANY OFFICIAL, AGENT OR EMPLOYEE OF THIS STATE OR A POLITICAL SUBDIVISION THEREOF, TO PROVIDE FOR THE LEGISLATIVE INTENT OF THE ACT; TO ESTABLISH A PRIVATE RIGHT OF ACTION FOR VIOLATION OF THE ACT; TO BRING FORWARD SECTIONS 37-13-173 AND 41-41-3, MISSISSIPPI CODE OF 1972, FOR THE PURPOSE OF POSSIBLE AMENDMENT; AND FOR RELATED PURPOSES.

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

SECTION 1. Legislative findings. The Legislature of the State of Mississippi finds the following:

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); and,

Whereas Chief Justice John Roberts in NFIB v. Sebelius, 567 U.S. 519 (2012) cites with approval the warning that "it is of fundamental importance to consider whether essential attributes of state sovereignty are compromised by the assertion of federal power"; and,

Whereas, Section 41-41-3 provides that health care cannot be provided to a minor without the consent of a parent, guardian or other authorized person as provided therein; and,

Whereas, Section 37-13-173 provides that each "school providing instruction or any other presentation on human sexuality in the classroom, assembly or other official setting shall be required to provide no less than one (1) week's written notice thereof to the parents of children in such programs of instruction. The written notice must inform the parents of their right to request the inclusion of their child for such instruction or presentation. The notice also must inform the parents of the right, and the appropriate process, to review the curriculum and all materials to be used in the lesson or presentation. Upon the request of any parent, the school shall excuse the parent's child from such instruction or presentation, without detriment to the student"; and,

Whereas, the federal Bipartisan Safer Communities Act, PL 117-159, June 25, 2022, 136 Stat 1313, instructs the Secretary of Health and Human Services to issue guidance "that includes best practices for ensuring children have access to comprehensive health care services, including children without a mental health or substance use disorder diagnosis"; and,

Therefore, it is the purpose and intention of the Legislature to protect 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 insofar as the rights of parents to govern and direct medical and healthcare decisions of their children are concerned.

SECTION 2. Anti-commandeering protection. No 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 the Bipartisan Safer Communities Act, PL 117-159, June 25, 2022, 136 Stat 1313, which allows any medical, healthcare, behavioral, or mental health treatment, service, therapy or counseling without parental notification or consent in contravention of the provisions of Sections 37-13-173 and 41-41-3, as applicable, shall 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. Private right of action for violation of medical and mental health, parental notification and consent requirements.

(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 the Bipartisan Safer Communities Act, PL 117-159, June 25, 2022, 136 Stat 1313, any school district, health-care institution or health-care provider as defined in Section 41-41-203 who violates the provisions of Sections 37-13-173 or 41-41-3, as applicable, 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's 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 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. Severability. 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 5. Section 37-13-173, Mississippi Code of 1972, is brought forward as follows:

37-13-173. Each school providing instruction or any other presentation on human sexuality in the classroom, assembly or other official setting shall be required to provide no less than one (1) week's written notice thereof to the parents of children in such programs of instruction. The written notice must inform the parents of their right to request the inclusion of their child for such instruction or presentation. The notice also must inform the parents of the right, and the appropriate process, to review the curriculum and all materials to be used in the lesson or presentation. Upon the request of any parent, the school shall excuse the parent's child from such instruction or presentation, without detriment to the student.

SECTION 6. 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 7. This act shall take effect and be in force from and after July 1, 2024.