5 min readAug 15, 2021

15 AUGUST 2021


The Constitution recognizes fundamental rights known as liberty interests. Liberty interests include the right to bear and rear children, direct their upbringing and education, and to be an active and integral part of their lives.

Rob’s Hands, Oil on Panel, 27" x 20", Richard J Van Wagoner, Courtesy of Van Wagoner Family Trust**

Children aren’t the property of their parents, however, and those rights are by no means absolute. Children have the same fundamental interests, recognized in the Constitution, as those recognized for their parents. Children have little choice but to rely on responsible adults for their safe upbringing. In limited circumstances the state’s interest in matters of public importance, including in children’s lives, safety, and wellbeing, outweigh the fundamental rights of parents.

Preventing a child from being injured or killed, and assuring the parent or legal guardian makes reasonable arrangements for the child’s safety, care, food, shelter, clothing, and medical care, are the kinds of state interest that justify intrusion of a fundamental right. Balancing the respective interests, courts are generally the arbiters of whether a state has violated one’s fundamental rights. In extreme circumstances, the state’s interest is sufficiently paramount to terminate parental rights.

Green Door, Oil on Panel, 16" x 18.5", Richard J Van Wagoner, Courtesy of Van Wagoner Family Trust**

I’ve represented parents charged with child neglect, abuse, endangerment, negligent homicide, and manslaughter. Under certain circumstances, the law properly prohibits parents from placing their children in scientifically recognized danger or allowing them to be or remain in dangerous circumstances.

• Lawmakers might not understand the science behind it, but even they recognize that parents ought not to be leaving their child inside an enclosed car in the summer heat.

• They may not understand the physiology, but lawmakers generally understand that leaving an infant or young toddler unaccompanied in bathwater isn’t such a good idea.

• The physiochemistry may be beyond their reach, but even they acknowledge that parents shouldn’t be permitted to leave chemical toxins, including certain prescription drugs and other controlled substances, within children’s reach.

In each of the foregoing circumstances, a child died, and the state charged a parent with a crime for causing or allowing the death. I did not question that the state’s interest in preventing the child from being injured or killed was paramount to that of the parent. Nor did I have the temerity to raise as a defense that the parent had a fundamental right, recognized in the Constitution, to leave an infant strapped in a hot car, to leave a small child unaccompanied in bathwater, or to allow a child access to poison, and that the parent’s right outweighed the child’s right to life, safety, and proper care or to the state’s interest in child protection.

Boy with Ball, Oil on Panel, 15.75 x 19.5, Richard J Van Wagoner, Courtesy of Van Wagoner Family Trust**

The deadly disease is now characterized as a pandemic of the unvaccinated. Vaccines and masks are the two scientifically recognized measures that significantly reduce viral spread and therefore the likelihood of serious illness and death. A very small percentage of breakthrough cases occurs, but the vaccines invariably protect against serious illness and death. As of now, children under 12 are not eligible for vaccination. That, in my view, places paramount responsibility on the parents to take, and the state to assure, every scientifically responsible measure to protect children from contracting the deadly disease. Children under 12 must be allowed in proximity only to those who are masked and fully vaccinated (if eligible), particularly in locales with high rates of infection.

Parents and lawmakers who fail and refuse to exercise such common sense, to make and enforce these requirements, commit crimes against children, disavowing their parental and legal responsibilities. Hospital ICUs overflow with diseased children whose parents and state governors recklessly allow their exposure. Hospitals are overwhelmed and lack the human and physical resources to care for the growing number of children who were needlessly exposed, let alone the many others who require emergency and other care unrelated to covid.

If I’m not mistaken, pro-life advocates believe the state’s interest in a zygote, embryo and fetus outweighs, or should, the interest of a pregnant woman in terminating her pregnancy. The hypocrisies found in that pro-life logic, particularly when applied to protecting life in the pandemic, are more than baffling: In the face of scientific evidence, placing children — the ones outside the womb — at risk of serious illness and death to make a point, to own the libs, to feed egos, to protect freedom, to avoid a primary challenge from the right, is, as I have suggested in other posts, clear evidence of the disqualifying, underlying co-morbidities of selfishness, stupidity, and arrogance. Children have a fundamental right to survive their parents and government.

*My brother the very talented fiction writer and novelist, Robert Hodgson Van Wagoner, deserves considerable credit for offering both substantive and technical suggestions to https://medium.com/@richardvanwagoner and https://lastamendment.com. Rob’s second novel, a beautifully written suspense drama that takes place in Utah, Wyoming, and Norway, dropped on November 17, 2020. Available on Amazon, Barnes and Noble, Apple Bookstore and your favorite local bookshop, this novel, The Contortionists, which Rob himself narrates for the audio version, is a psychological page-turner about a missing child in a predominantly Mormon community. I have read the novel and listened to the audio version twice. It is a literary masterpiece. The Contortionists, however, is not for the faint of heart.

**Richard J Van Wagoner is my father. His list of honors, awards and professional associations is extensive. He was Professor Emeritus (Painting and Drawing), Weber State University, having served three Appointments as Chair of the Department of Visual Arts there. He guest-lectured and instructed at many universities and juried numerous shows and exhibitions. He was invited to submit his work as part of many shows and exhibitions, and his work was exhibited in many traveling shows domestically and internationally. My daughter Angela Moore, a professional photographer, photographed more than 500 pieces of my father’s work. On behalf of the Van Wagoner Family Trust, she is in the process of compiling a collection of his artwork. The photographs of my father’s art reproduced in https://medium.com/@richa




Exercising my right not to remain silent. Criminal defense and First Amendment attorney.