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

Consumer Protection Amendment & SB 277 Letter to the Health Committee

ATTN: ASSEMBLY HEALTH COMMITTEE

RE: OPPOSITION TO SB 277

Dear Members of the Assembly Health Committee,

I am writing to state my ardent opposition to SB 277.

Our family would have been in violation of SB 277, simply because we chose to delay administration of the Hepatitis B vaccination until our son was 2 months old. This, even though in consultation with our Board Certified Pediatrician, we choose to follow the CDC’s recommendations regarding vaccinating.

SB 277 attempts to accomplish the impossible, which is legislating people into agreement.

The Supreme Court has repeatedly affirmed the rights of parents to make medical decisions in the best interests of their children.

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.”

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.

Furthermore, as also set forth by the U.S. Supreme Court, exercises of police power have explicit limitations. We must inquire, is SB 277 “a fair, reasonable and appropriate exercise of the [police power], or is it an unreasonable, unnecessary and arbitrary interference with the right of the individual to his personal liberty.” Lochner v. New York 198 U.S. 45, 56 (1905).

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, at the time of suit a teenager, 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.

The NVICP requires that all claims greater than $1,000 must originate there. This despite the fact that there is no judge, no jury, no discovery, and limitations on financial awards. Furthermore, the Supreme Court ruled that defective design claims may not be appealed. This implicates violations of the 7th Amendment, and many other federal constitutional issues. “A legislative act contrary to the Constitution is not law.” Carter v. Carter Coal Co., 298 U.S. 238. “All laws which are repugnant to the Constitution are null and void.” Marbury v. Madison, 5 U.S. 137,174,176.

Due to this lack of meaningful ability to recover following vaccine related injuries and death, we demand that the Consumer Protection Amendment be included into SB 277.

The Consumer Protection Amendment (CPA) addresses the utter unconstitutionality and lack of meaningful legal rights under the Childhood Vaccine Injury Act (NCVIA) of 1986.

This amendment gives consumers in California the opportunity to sue vaccine manufacturers in the event of injury or death.

It also creates the opportunity to challenge the constitutionality of the federal government’s attempts to block any lawsuits against vaccine manufacturers.

Therefore, a coalition of groups working together to oppose SB 277 presents the following Amendment to be included in SB 277:

Whereas:

► According to vaccine manufacturers, pursuant to The National Childhood Vaccine Injury Act (NCVIA) of 1986, unlike all other consumer product manufacturers, they cannot be sued in California State or Federal courts for damages arising from injury or death associated with vaccines. They cite 42 U.S.C. §§ 300aa-1 to 300aa-34.

►As currently written, SB 277 will eliminate parental choice regarding vaccination for all children, as the bill does not allow for modification to state-mandated vaccines as a condition of daycare, elementary, or secondary school admission.

Consumer Protection Amendment:

It is the intention of the California Legislature in enacting the amendments to subdivisions 120325, 120335, 120338, 120370 of the Health and Safety Code, and any other related or relevant amendments, statutes, code sections, or provisions adopted at the 2015-2016 Regular Session, to declare that there exists no statutory bar to vaccination or vaccine-related personal injury, wrongful death, or other tort claims against vaccine manufacturers and their successors in interest by minor children, parents, guardians, their legal representatives, or others who have suffered or incurred injuries, damages, or costs arising from the administration of vaccines. It is also the intention of the Legislature to clarify that those legal claims that were or are brought shall be determined on their merits, without the imposition of any claim of statutory bar or categorical defense.”

“Unlike claims for ordinary negligence, products liability claims cannot be waived.” (Westlye v. Look Sports, Inc. (1993) 17 Cal.App.4th 1715, 1743.)

Furthermore, existing California law grants this ability to sue tobacco producers. CAL. CIV. CODE § 1714.45 (f). Choosing to smoke cigarettes is a completely voluntary choice, whereas vaccinations are a mandatory prerequisite to accessing childrens’ fundamental right to access a free public education under California state law.

As stated by the California Supreme Court in the seminal case regarding public education in California, Serrano v. Priest, 5 Cal. 3d. (1971), “We are convinced that the distinctive and priceless function of education in our society warrants, indeed compels, our treating it as a “fundamental interest.” 5 Cal.3d 609 The court also stated in its holding that it affirmed the, “cherished idea of American education that in a democratic society free public schools shall make available to all children equally the abundant gifts of learning. 5 Cal.3d 615.

SB 277 is unnecessary, unconstitutional, and unfair. Provide parents with access to California courts, or vote against the bill entirely.

Please contact me with any questions, or to further discuss the legal implications of SB 277.

 

Regards,

CALawMama

calawmama@gmail.com

Filed under: Uncategorized

5 Responses

  1. jowaannn says:

    This is perfect!

  2. Thank you so much for researching this.

  3. gcsgooding says:

    Thank you CaLawMama!

  4. We ThePeople says:

    An unnecessary bill – based in fear, backed by big pharmaca and lacking in intelligent unbiased research. Parents have inalienable rights (noun: a right according to natural law, a right that cannot be taken away, denied, or transferred) Personally, I will vaccinate my child appropriately. I will do it over a much longer period of time, and I will reject minor vaccines that are not needed or inappropriate. I will also research certain vaccines and not use them if I feel they are harmful. I have that inalienable right.

  5. fineartistval says:

    CALAWMAMA, THANK YOU, for breaking it down for all to see! No one can take our parental rights away from us!

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