Swalwell’s Opposition to Parental Rights is Wrong Legally, Medically, and Politically

Below is my column in Fox.com on the Swalwell attack on parents seeking a greater voice in the education of their children. We discussed the tweet earlier and how it makes a curious argument based on legal and medical standards for clients and patients.

Here is the column:

The fault lines for the 2024 elections are already taking shape with the two parties in diametrically opposed positions and there is no greater divide than over parental rights. That stark difference was no more evident than in a tweet from Rep. Eric Swalwell who mocked the notion of parents making major decisions in the education of their children.

The California Democrat insisted that it is akin to “putting patients in charge of their own surgeries? Clients in charge of their own trials?” Swalwell declared: “Please tell me what I’m missing here … This is so stupid.”

What Rep. Swalwell, a lawyer, is missing is called informed consent.

Since he asked for assistance, let’s deal with each in turn.

Patients and medical consent

American torts have long required consent in medical torts. Indeed, what Swalwell seemed to suggest would be battery for doctors to make the key decisions over surgical goals or purposes. Indeed, even when doctors secured consent to operate on one ear, it was still considered battery when they decided in the operation to address the other ear in the best interests of the patient. Mohr v. Williams (Minn. 1905).

In Canterbury v. Spence the court rejected claims that a physician can make key decisions given “the patient’s right of self-determination.” Thus, doctors in the United States do have to secure the consent of patients in what they intend to do in surgeries or other medical procedures. (There are narrow exceptions such things as “substituted consent” or emergencies that do not apply here).

Ironically, California has one of the strongest patient-based consent rules. As the California Supreme Court stated in Cobbs v. Grant (1972): “Unlimited discretion in the physician is irreconcilable with the basic right of the patient to make the ultimate informed decision regarding the course of treatment to which he knowledgeably consents to be subjected.”

While obviously a patient cannot direct an operation itself, the doctor is expected to explain and secure the consent of the patient in what a surgery will attempt and how it will be accomplished. That is precisely what parents are demanding in looking at the subjects and books being taught in school. Moreover, that is precisely the role of school boards, which has historically exercised concurrent authority over the schools with the teachers hired under the school board-approved budgets.

Clients and legal consent

Swalwell is also wrong in suggesting that clients are not in charge of their own trials. Not only must attorneys secure the consent of their clients on what will be argued in trial, but they can be removed by their clients for failure to adequately represent their interests. It would be malpractice for a lawyer to tell a client, as suggested by Swalwell, that they do not control the major decisions in their own cases.

Ironically, informed consent is defined in the Model Rules of Professional Conduct as the “agreement by a person to a proposed course of conduct after the lawyer has communicated adequate information and explanation about the material risks of and reasonably available alternatives to the proposed course of conduct.”

Obviously, lawyers must follow their own ethical and professional judgment in trials, and tactical choices are generally left up to the lawyers. However, the main objectives of the trial remain for the client to “knowingly and voluntarily assume” the risks of a particular course. Metrick v. Chatz (Ill. App. Ct. 1994).

Much like the claim of parents, clients demand the right to reject a plan for trial and the arguments or means to be used at trial. This right of consent is ongoing and can be exercised at any point in the litigation.

Informed consent

Of course, the key to informed consent is that parents are given the information needed to secure their consent. School districts have been resisting such disclosures and pushing back on parental opposition to major curriculum or policy decisions.

What is most striking about Swalwell’s reference to patients and clients is that they, under his educational approach, have far more voice in a wart removal or a parking ticket challenge than the education of their children. If anything, his analogies support the call for greater parental knowledge and consent.

In other words, “what is missing here” is that Rep. Swalwell’s interpretation could constitute both medical and legal malpractice. It may also constitute political malpractice as both parties now careen toward the 2024 elections.

Jonathan Turley is the Shapiro professor of public interest law at George Washington University and a practicing criminal defense attorney. He is a Fox News contributor.

107 thoughts on “Swalwell’s Opposition to Parental Rights is Wrong Legally, Medically, and Politically”

  1. OT NEWSFLASH

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    Geez, if “Crazy Abe” finds out, the Constitution will be suspended, the army will come looking for those pesky American secessionists and all —- will break out.
    _______________________________________________________________________________________________________________________________

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    “Georgia Republicans Spoil Atlanta Neighborhood’s Effort to Secede, But Proponents Say They’re ‘Not Stopping’” (excerpted)

    “Proponents of turning Atlanta’s high-end Buckhead neighborhood into a separate city — a plan that would have left schools serving over 5,000 students in limbo — won’t get the chance to vote on the proposal this fall. On Friday, Georgia House Speaker David Ralston joined other Republicans in opposing legislation that would have paved the way for Buckhead to split from Atlanta. “It takes two chambers to pass a bill. The Senate was very clear and I respect their decision,” he said, referring to Lt. Gov. Geoff Duncan’s lack of support for the plan. But he added that he would be looking for “forceful, vigorous action” from Atlanta Mayor Andre Dickens to reduce crime — the major issue fueling the secession drive. “We’ll be back next year if things haven’t changed.” Bill White, the New York transplant leading the breakaway effort, isn’t admitting defeat. His Buckhead City Committee issued a statement Saturday saying it’s not unusual for incorporation efforts to take more than a year.”

    https://www.the74million.org/article/georgia-republicans-spoil-atlanta-neighborhoods-effort-to-secede-but-proponents-say-theyre-not-stopping/

  2. “Swalwell’s Opposition to Parental Rights is Wrong Legally, Medically, and Politically”

    – Professor Turley
    ______________

    Karl Marx doesn’t think Comrade Swalwell is wrong.

    As a matter of fact, Karl just recommended Comrade Swalwell for the Order of Lenin.

  3. Swalwell if first and foremost a traitor who slept with a Chinese spy and who has suffered no consequences. Beyond that, he is another example of a demented progressive whose obsession with transgenderism will most certainly destroy the lives of untold thousands of children who permanently disfigure the body at an age when they are incapable of making a rational decision on such matters. To omit the parents from such a life changing decision is something the CCP would do, but then Swallwel would fit right in

  4. Of course, the key to informed consent is that parents are given the information needed to secure their consent. School districts have been resisting such disclosures and pushing back on parental opposition to major curriculum or policy decisions.

    It seems to me you are dodging the fact that minors already can acquire some medical services without parental consent. It varies from State to State. Swallowswell is merely extrapolating minors obtaining some medical services without parental consent to educational “services” under the same penumbra

    https://www.vdh.virginia.gov/adolescent-health/sexual-health-faqs/

    Do I need my parent or guardian’s permission to receive medical care?
    The legal age for agreeing or consenting to medical services in Virginia is 18 years old. If you are under 18 years old, you can receive the following medical care without your parental/guardian’s permission:
    Testing and related treatment for sexually transmitted infections (STIs)
    Medical services required for birth control, pregnancy, or family planning (except sterilization/getting tubes tied or vasectomy)
    Services needed for outpatient care, treatment, or rehabilitation for substance abuse
    Services needed for outpatient care, treatment, or rehabilitation for mental health.
    If you are married (or previously married), you can agree to medical or surgical treatment (except sterilization/getting tubes tied, vasectomy, or abortion)
    If you are pregnant, medical or surgical treatment for you or the child if related to the delivery of the child. After delivery, the law considers the mother an adult for consenting to medical or surgical treatment for her child.

    Can my parents/guardian access my medical records?
    Parents can access all medical records except in the following situations:
    Title X Family Planning Services (birth control)
    Substance abuse treatment
    If releasing the record would cause harmto you or another person.

    NB: the bolded words are subject to personal interpretation which is problematic

    Then there is HIPAA and minors, which is also skewed against parents

  5. Swalwell has a point that Turley is not getting. The basic argument that a parent has a right to choose how their children are educated what they should be educated of is not wrong. HOWEVER…that does not change the fact that not every parent is going to be the smartest or is going to be best suited to determine that. Swelwells’s statement about “patients being put in charge of their own surgeries” is about deferring the expertise of a surgery to the patient rather than the surgeon. In education it would be the equivalent of a parent insisting that their idea of education is insisting 2+2=5 because the teacher is teaching their kid that 2+2=4.

    Parent’s have a right to educate their children or choose how they are educated. That is not and should not be in dispute. However parent’s ARE limited in what THEY know vs what teachers who know MORE than what their parent’s can teach their children. It’s just a conflict of interest and the easy solution is for parent’s to either teach their kids entirely (homeschooling) or send them to a school where they will still be taught more than what they can themselves.

    Parental rights is important when it comes to education however when it comes to medical decisions regarding THEIR children suddenly it’s NOT their right because others’s don’t approve of their decision, for example treatments medical care for gender dysphoria. Those sacred parental rights vanish because they are “sexualizing” their children or “mutilating” their children. This goes to show that conservatives love parental rights until other parent’s do things THEY don’t like and proceed to dictate how OTHER parents should be doing with THEIR children and demand the STATE get involved. The hypocrisy couldn’t be more clear.

    If you are for parental rights, go all the way. Respect parental rights to decide what they decide what is best for their children medically as well as educationally. Don’t start making exceptions because you don’t like how they decide certain things that other parent’s are perfectly able to NOT decide for THEIR children.

    If parent’s want to educate their children a certain way they should be able to, but that should also involve how they decide on medical decisions involving gender dysphoria too.

    1. It’s good you think conservatives should not “dictate” how “OTHER parents should be doing with THEIR children and demand the STATE get involved.” Now, please share that sentiment to help guide your fellow progressives the same.

      1. I”m sure they can read my post like everyone else. Now we should hope conservatives are able to recognize the same when it comes to their children’s healthcare involving gender dysphoria. The same principle should apply.

        1. Gender dysphoria is treatable and well should be so that persons’ mental health issues that may derive from it are effectively treated early on. I believe we all can appreciate that gender dysphoria impacts some children regardless of their parents’ political ideologies, leaving both conservative and progressive parents in agreement that the issue is not and clearly need not be contentious. Conflating gender dysphoria with parental choice in education is a fallacy of relevance. You have presented us with a perfect example of a straw man argument.

    2. “insisting that their idea of education is insisting 2+2=5 because the teacher is teaching their kid that 2+2=4.”

      Kind of like how liberal education insists there are more than two genders.

      I don’t know, something tells me there’s a big difference between physically mutilating your child because you think it is cool and wanting your child to be taught how you want.

      1. “ Kind of like how liberal education insists there are more than two genders.”

        They are not insisting on that. They are acknowledging that there are new points of view that are becoming the norm. Just like homosexual relations and same sex marriage. They were not insisting people become gay or taught people how to become gay. There’s a distinction.

        “ I don’t know, something tells me there’s a big difference between physically mutilating your child because you think it is cool and wanting your child to be taught how you want.”

        Buying into the BS other people tell you who have no idea what they are talking about says a lot about one’s ignorance on the issue.

        People are NOT mutilating their children period. That is what those who are opposed to the IDEA of parents being able to decide what it best for THEIR children are concocting in order to scare YOU into believing that BS.

        Diagnosing and treating gender dysphoria takes a lot more than just a random decision. If you actually took the time to read AND understand the real process of how they determine and what they actually do you wouldn’t be buying into the BS that ignorant idiots are telling you.

        Things like puberty blockers are treatments that ARE reversible. All they do is slow down puberty or delay it. It is a decision made by medical professionals who UNDERSTAND the issue and it is made according to guidelines created by professionals and those decisions and discussions are between the doctors and the parents.
        Medical professionals DO NOT perform surgical changes on minors uniform they are old enough to decide for themselves. When they are no longer minors and they have thoroughly discussed and evaluated the issue. Claims of mutilating children or “grooming” them are all being made by those using the issue to scare YOU into believing their BS.

        The whole issue is still about the parent’s right to decide what it best for THEIR child whether it’s education or medical. Nobody else has any business barging in on THEIR decisions. If you don’t like others telling you how to raise or treat your children don’t tell go off telling others too.

        1. Seems like you are the one who has bought into other peoples b.s. Plenty of examples out there if you took the time to look into it of minors getting cut up.

          I guess you would support an anorexic by giving them laxatives and stomach staple surgery. You are a very scary person who agrees with child mutilation.

          1. Jim22, don’t be stupid. Of course you’re going to use the most extreme example and declare this to be the norm. It’s very rare for a child to undergo a sex change operation and it’s only when everyone including doctors, psychologists, and parents have gone thru extensive discussions on what they can and cannot do. What makes it incredibly rare is that it’s only done when it’s clear it’s required. Not because it’s “cool”.

            If there are plenty of examples why didn’t you post one?

            “ I guess you would support an anorexic by giving them laxatives and stomach staple surgery. You are a very scary person who agrees with child mutilation.”

            Obviously you are conflating varying types of conditions and adding extreme measures to justify your ignorance. I would point out that ignorance is not terminal, but in your case it may be. Only you can fix that.

            1. Being an anorexic or denyer of ones sex are both mental deseases. In either case, you don’t not treat the person by giving them what they “think” they are.

            2. Svelaz, Schools have no right to overrule the parents decision, on Gender issues. NONE. Just like Schools cant give medical consent. NONE

        2. I don’t know of any school that would tolerate, much less teach students that LGBTQ people, parents or students should be ridiculed because of their gender identity or sexual orientation. It’s called teaching values, not promoting someone to be LGBTQ if that is not their orientation or identity. Schools are supposed to teach children to respect others, including, and especially those who are different.

        3. “People are NOT mutilating their children period.”

          Cutting off a child’s genitals is mutilation — whether done by a barbaric Muslim using a piece of glass, or by those with advanced degrees using a scalpel. If anything, the latter is more barbaric because it is butchery in a supposedly civilized culture.

    3. Svelaz wants to compare parents wanting to be allowed a say in their child’s education to parents wanting to have their child castrated. He dresses it up with the words gender dysphoria. Why won’t he just say that parents should be allowed to have their sons testicles cut off and subject their daughters to having their breasts severed. He tries so tell us that it’s just a treatment for a psychologic disorder when it really is child mutilation. Two psychological disorders come together. The disorder of the child combined with the disorder of the parents cook up the brew. Comparing a concern for a child’s education to a concern for a child’s dysphoria resulting in a life altering operation is ridiculous. It was perfectly acceptable to create eunuchs and send twelve year old boys to the battlefield for the sexual pleasure of the soldiers in ancient Rome. Svelaz exclaims “All hail Caesar.”

      1. Tit says,

        “ Svelaz wants to compare parents wanting to be allowed a say in their child’s education to parents wanting to have their child castrated. He dresses it up with the words gender dysphoria.”

        This is the problem. NOBODY is cast raising their children, period. None. You’re being taken advantage of because of your ignorance an gullibility. Gender dysphoria is a real medial condition. It’s not about “castrating children” or “child mutilating” Those words are being bandied about to scare the living crap out of gullible idiots like you. Rather that really research the issue and try to understand you would rather take the word of those that are intent on demagoguing for political gain. They are relying on YOUR stupidity to believe what they are telling you instead of thinking for yourself and learning for yourself about the condition.

        I will say again, treating gender dysphoria is NOT about child mutilation, castration, or anything close to that. It’s pure BS. Parents who deal with the issue KNOW it’s BS because they are NOT doing or seeking to do what you and many dumba$$es are saying. These things are dealt with therapy with medical professionals who understand the issue and know what options parents have and they DO NOT involve mutilation or surgery until MUCH MUCH late in life when they can legally make the decision on their own.

        Your overactive paranoia regarding the issue is clearly evident when you are already in full blown freak out mode because of BS that you have bought into from idiots who have no idea what they are talking about OR people who are deliberately lying to you so YOU can get enraged about it.

        It’s best you do some real research into the subject from other sources besides the ones claiming the BS you’re citing.

    4. HOWEVER…that does not change the fact that not every parent is going to be the smartest or is going to be best suited to determine that. Swelwells’s statement about “patients being put in charge of their own surgeries”

      I knew some idiot would try to make the claim. some parents are too stupid to parent….except we have decades of evidence that govt schools have been on a race down hill.

      Doctors know better? Medical mistakes are the 3rd leading cause of death in the US, 250,000 per year.

  6. Government by “experts” remains the mantra of progressives and gets ever more perverse. It is hoped Swalwell speaks for but a very few of his ilk. God forbid he speaks for most.

  7. Only Pelosi and the Democrats would allow a member to sit on the INTELLIGENCE COMMITTEE after it was discovered that he had been had by a CHINESE SPY. Swalwell should shut up and just thank his lucky stars that he is allowed to sit in Congress. He really is one ugly man… and I don’t mean his looks.

    1. Riiiiight, because members of congress are not allowed to have their opinions on issues they believe are important. Especially one that is NOT your representative either. Sheesh.

  8. Let us not forget that Swallwell was ‘dumb’ enough to enable, to allow, a Chinese communist spy into his office operations — for which he suffered extremely little consequence. That illustrates an incredibly low threshhold, even for members of Congress who have committee assignments granting them access to our nation’s secrets~
    Would you let this person baby-sit your kids?
    Similar to the Dick Nixon question: ‘would you buy a used car from this man?’

    1. Let us not forget that Swallwell was ‘dumb’ enough to enable, to allow, a Chinese communist spy into his office operation

      He had a craving for Peking Roasted Duck, Kung Pao Chicken or Dim Sum?

      😉

  9. I would love the opportunity to debate Swalwell on the constitutionality of the federal govt spending even $1 on education….at any level. Thus as a member of the House of Representative he has no voice

    People would be well to note, Education has done nothing but go downhill since LBJ in his Great Society program promised to make education in the US, the best in the world. ( sadly, the last time that could be claimed)

  10. Staying on to West Point is again threatening to “separate” cadets refusing to submit to a shot that does not stop the contraction, or spread of covid.

    Democrats ALWAYS look for ways to strip people of their natural freedoms, in order to control and create dependency. Democrat policies are antithetical to a free population. That is why they are so kean on censorship.

  11. I try not to resort to name calling, but this guy is an idiot. Sorry, I realized that’s an insults to idiots.

  12. Swalwell was educated but obviously never enlightened. He reinforces this almost every time he speaks or writes. Does he even deserve a reply. He is so pathetic that I would never even contemplate wasting my time with a Heckler’s Veto (which I never endorse anyway).
    With what he writes one wonders if he ever proofread it and did he really do any legal research to back up his statements. Obviously the school systems answer to the voters and they have a right to direct the school board (with their votes and comments at school board meetings) and the Board then directs the teaching. It seems that some school boards were not transparent about what they were doing and very well hid some things that should not have been hidden and then tired to squelch speech (there is that free speech thing again) at the subsequent board meetings. And as I wrote in previous columns here, squelching free speech tends to provoke anger, hostility and sometimes violence. Better to just answer the questions honestly.

  13. Democrats are going down the path of totalitarianism, so it’s no surprise that Swalwell would demand strict obedience to…grade-school teachers, of all people, probably the least intellectual and most sheep-like of citizens. In addition to Turley’s spot-on argument, we can add the fact that most doctors and lawyers usually offer options to their patients and clients. It’s rarely a case of “my way or the highway.” Teachers are workers, and their union is strong thanks to decades of money shuffling between the unions and the Democratic party election campaigns. But that hardly qualifies them as “experts” on kids, especially when they’ve opted for drag shows, racial bullying, and gender grooming. And forget the argument that they may have a degree in education so they’re somehow credentialed. You can stick that credential right next to those degrees in gender studies and feminist studies. Laughable.

  14. This is a much bigger issue that has been kept under the radar for years. This is another CA politican who should not be in office.

  15. sound familiar?
    Various studies have shown that Nazi propaganda in the years after 1933—a period when the party was in total control of state institutions, the media and many societal organizations—had a strong and long-lasting effect on the collective perceptions, attitudes and behavior of the German people.

  16. Again…

    Rep. Eric Swalwell (D., Cal.) saying something like “Please tell me what I’m missing here” is a rhetorical fishing question. From Swalwell’s point of view he’s not missing a thing, he’s projecting that those he opposed are missing something. Swalwell has shown us repeatedly that he’s going to toe the progressive line and attack anyone that opposes it with anything his pea brain can muster, even if it’s absurd on its face, and the ignorant progressive sheeple will swallow it hook, line and sinker. Swalwell is basically a political hack trying to incite the opposition to see if he can catch them in some sort of “gotcha”.

    1. This is from the stale can of “prove me wrong”. “No, you prove me wrong.” “No, you prove me wrong.” In politics, this is a no lose situation in which Swallowswell owns the soundbite, and the retort is often a lengthy, detailed response that doesn’t stick as well. This argument lines the foundation of why think tank talking points are always more effective than a well thought out, reasonable counterpoint.

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