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Experiences at the interface of life, law, and motherhood in Cali

Letter to the Governor RE: SB277 Legal Concerns

The following is the text of the letter I sent to our Governor. I also sent a slightly altered copy to my local Assemblyman.

Dear Governor Brown,

I am writing to express some deeply held concerns I have regarding Senate Bill 277, which proposes to completely eliminate personal belief exceptions to mandatory immunization laws for California children.

First of all, as a parent of four children that vaccinates according to the currently recommended vaccination schedule, I find it confusing why the State Legislature would feel it necessary to legally impose vaccinations on families who have legitimate reasons to choose not to vaccinate. As an opponent of SB 277, I have had the occasion to get to know many of these families and their reasons. Typical reasons include:

  • demonstrated vaccine injury, resulting in children who need intensive and around the clock care, even as they grow into teenagers and adults;
  • religious reasons, including objections to the use of vaccines generally, objection to vaccination against sexually transmitted diseases (e.g. HepB & HPV), or more specifically relating to the contents of select vaccines;
  •  genetic pre-disposition to or de facto reaction based upon such genetic pre-disposition, such as the MTHFR gene;
  • selective vaccination, including the choice not to vaccinate against less prevalent diseases

These are not “fringe issues.”

The CDC website lists as a risk of the DTaP vaccination a 1 in 14,000 risk of seizure in a child. This is just one of the required vaccinations. There are an estimated 13,000 Kindergarteners who are currently exempted by means of a personal belief exemption. This means that the passage of SB 277 almost ensures that at least one of these children will suffer a seizure, statistically speaking. And I can’t help but ask, why?

AB 2109 added the informed consent requirement, such that parents who sought to secure a personal belief exemption, based not on religious reasons, had to schedule an appointment with a medical doctor, and review all the risks of choosing not to vaccinate. Only then would a waiver be granted.

Since AB 2109 became effective, the number of entering Kindergarteners alone using personal belief exemptions has decreased by a third. When I spoke with Senator Allen’s office, his aide informed me that they believed SB 277 was necessary, because the informed consent requirement had only demonstrated approximately a 20% decrease in personal belief exemptions, and then plateaud. They explicitly stated that this was based on data from Washington State. The California Department of Health has already published data that is contrary to this assertion of a stagnant decrease of 20%. We have already surpassed that threshold in just the first year. California is not the same as Washington.

Another troubling statement proliferated by Senator Allen’s office, and by many supporters of SB 277, is the belief that if SB 277 becomes law, those who currently utilize personal belief exemptions will merely “fall into line” and take their children in to get all of the legally mandated vaccinations. I just don’t see how that is going to happen.

These parents have deeply held beliefs regarding vaccinations, whether they are based on scientifically published risks (such as those on the vaccine inserts themselves, as listed on the CDC website), or vaccine injured children, or other reasons. They are not simply going to change their minds because the legislature is attempting to force them into a Hobson’s choice (see, Allison v. Merck, 110 Nev. 762 (1994)).

As I am sure you know, the case law regarding parental rights abounds. From Meyer v. Nebraska, 262 U.S. 390 (1923) to Roe v. Wade, 410 U.S. 113 (1973), where the Court explicitly stated, “freedom of personal choice in matters of marriage and family life is one of the liberties protected by the Due Process Clause of the Fourteenth Amendment.”

Supporters of the bill often respond that this choice does not extend to those things that may harm others. I have two points in response to that claim.

First of all, let us not pretend that schools are sterile environments. From pink eye, to head lice, to hand foot and mouth disease, to the common cold, those attempting to assert that schools are an immunologically safe environment for children, but for mandatory vaccinations, are sorely mistaken. If I were a parent of an immunologically compromised child, or even a child with a food allergy, I would likely never choose to send my child to a typical school, even if immunization rates were 100%. That is simply too risky of a choice.

Next, regarding the assertion that SB 277 allows some sort of legal “loophole” by carving out an exception for homeschool, this is no special exception. A brief overview of any federal case on the issue, and an understanding of how homeschool laws work in other states will clearly demonstrate that there is no conceivable way that legislators could require mandatory immunizations across the board, thus including as against homeschools.

In West Virginia and Mississippi, both states legislate homeschool separately from the school immunization laws. Thus this “exception” is a fallacy, it is a constitutionally mandated carve out.

Which brings me to my next concern: assuming the high likelihood that these parents will not simply “fall into line,” there will likely be an immense influx of children into the homeschooling community.

First of all, I fully support anyone’s well considered decision to homeschool. I think it is an amazing opportunity for families who decide to make that choice based upon careful consideration. SB 277 does not allow for a careful consideration, it forces the hand. Homeschooling is an immense undertaking, and I fear that it is not in the best interests of the state to alienate so many parents for a decision that does not have a demonstrated impact on the current immunological climate in schools. The Senate Floor Vote Analysis itself stated that vaccination rates are at an “all time high” statewide, and furthermore than a majority of the cases of Measles following the “Disneyland outbreak” affected adults, not children. Furthermore, the so called epidemic has since been declared over by the CDC, removing the remote justification for the mandate of the Measles vaccination, much less the nine additional vaccinations currently included in the law.

Additionally, one can’t help but wonder what logic prompts lawmakers to force all of the staunch non-vaccinating parents into one community. How will it increase vaccination rates, or decrease the spread of the disease by completely removing the requirement that parents meet with medical doctors, and instead, forcing all of the non-vaccinated children into the same social group? This makes no sense.

I am also deeply troubled by clause (11) of the bill, which writes a blank check for lawmakers to add any additional vaccinations, with absolutely no inkling of a due process requirement, or any other external limitation other than arbitrariness or more likely a desire to gain re-election. Other states have their vaccination addition language tied to an external governmental body, such as the CDC. The current language is appalling to anyone with a sense of what the Due Process Clause actually requires.

There is no doubt in any case law that the state has the authority to exercise its police powers to enact mandatory immunization laws when necessary. However, I think an overview of relevant cases will demonstrate that there are certain prerequisites that must be met. I highly recommend a review of the seminal case, Jacobson v. Massachusetts, 197 U.S. 11 (1905), to see just exactly how careful the Court was in restating repeatedly that states can go too far. Even in the follow up case, Zucht v. King, 260 U.S. 174 (1922), there was just one mandatory vaccination at issue, not ten. Furthermore, that vaccination was for a highly communicable disease, not those which are not typically spread by mere close quarters.

Lastly, and perhaps most importantly, I urge you to review the case law of those parents whose children have been severely vaccine injured, and which no relief has been afforded. Specifically:

  • Workman v. Mingo County Bd. of Ed., U.S. Ct. App. 4th Cir. (2011), for which the U.S. Supreme Court denied certiorari, the mother of two school aged children. Her 13 year old child suffered from serious health problems, which manifested around the time she began receiving vaccinations. These specifically included diagnoses of pervasive developmental disorder, not otherwise specified, severe sleep disorders, and other behavioral problems. The problems were so pervasive that it required that child to be homeschooled. The mother thus sought a medical exemption from being required to vaccinate her second child, a 6 year old, due to fears of a genetic predisposition to vaccine injury. The district court granted the Board of Education’s motion for summary judgment denying a medical exemption, and the Court of Appeals Affirmed. Thus, no medical exception was granted.
  • Bruesewitz et al., v. Wyeth, 131 S.Ct. 1068 (2011), Hannah Bruesewitz was born on October 20, 1991. Her pediatrician administered doses of the DTP vaccine according to the Center for Disease Control’s recommended childhood immunization schedule. Within 24 hours of her April 1992 vaccination, Hannah started to experience seizures. She suffered over 100 seizures during the next month, and her doctors eventually diagnosed her with “residual seizure disorder” and “developmental delay.” Hannah, a teenager at the time the case was heard, is still diagnosed with both conditions. The Supreme Court affirmed that the manufacturer of the vaccine that caused injury to the child was immune from suit, eventhough that particular batch had reportedly hurt many others. The parents had appealed the initial decision from their injury petition, which was denied. Thus, the parents were denied any recovery at all.

Parents of vaccine injured children are continuously looked down upon, as though they have done something wrong, or are otherwise blameworthy for attempting to convey to others how vaccinations have hurt their children. Vaccine injuries are real. Look at the individuals who are coming to the capitols in droves, myself included. We are not crazy. We are not fringe. I vaccinate my children, and I still oppose SB 277. I know that of all the career politicians, you are likely the most reasonable, and you demonstrate that you actually care about California through the manner in which you exercise your power as Governor. I respect you highly, and it was my pleasure electing you to office.

I urge you to veto SB 277. Despite being utterly unnecessary, it sets a very bad precedent for California.

Respectfully,

CALawMama

Attorney at Law

Filed under: Uncategorized

2 Responses

  1. clarkvent says:

    Thank you for standing up to an industry push that uses a corrupt political effort and a complicit press to advance an agenda that is bad for the state and our people.

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