Yesterday, June 9, 2015, the Assembly Health Committee held a hearing, in which we heard testimony from those in support of SB277 and those opposed. There were some GLARING inaccuracies, half truths, you may even go so far as to call them lies. Therefore, I took it upon myself, in consultation with others, to set the LAW FACTS straight on this critically important bill.
- This is not about Measles.— Despite the supporters of SB277 trying to hoodwink us into believing that this bill is about Measles, the reality is that couldn’t be farther from the truth. How do we know this? Because, if you look to Jacobson v. Mass. you see that the Supreme Court upheld a law that required a smallpox vaccination amidst a smallpox epidemic. Eventhough we clearly have no epidemic, which Pan handily admitted yesterday, there is a strong argument that a requirement for the Measles vaccination only would be clearly constitutional. And yet, the law is not only requiring Measles. Why is that? Because it is NOT ABOUT MEASLES.
- California is NOT Washington, despite Pan & Allen’s obsession with their data. Pan and Allen both claimed, if I remember correctly, that SB277 is necessary because a law similar to AB 2109 in WA only led to a 20% decrease in those utilizing PBEs. However, what they completely failed to mention is the fact that entering Kindergarteners in California already saw A GREATER THAN 20% DECREASE IN PBEs. In fact, the number of decrease in CALIFORNIA is closer to ONE THIRD, AKA 33% AKA GREATER THAN 20% AKA WASHINGTON =/= CALIFORNIA AKA further dishonesty and intentional misleading of other members of the Assembly. I know Allen is aware of this FACT because I was on the phone call with his head of staff when we told them this clearly unknown to them at that point in time data. Look at the Cal. Dept. Pub. Health website, that’s where the data comes from.
- Vaccine injured siblings cannot get medical exemptions. Despite Pan’s repeated failure to recognize valid concerns raised by Assemblyman Nazarian, and the attorney speaking on behalf of the opposition, who in fact himself as a lawyer cannot get a medical exemption for his daughter, a sibling of a vaccine injured child, we know that many many many families cannot only not get exemptions for siblings, but they cannot even get exemptions for vaccine injured children! Furthermore, exemptions only apply to one vaccination, if I remember correctly. I do believe that was what Pan kept saying, “for that vaccine.”
- Pan and Allen continually cite to a case that AFFIRMED the INABILITY of a parent to get a medical exemption for a sibling of a vaccine injured child to support their claims that SB277 is constitutional. Workman v. Mingo– mother had 2 children, oldest vaccine injured, younger sibling not. The school refused to accept her medical exemption for the younger child, and the court said that was ok! Court of Appeals affirmed! Pan and Allen are being completely dishonest when they say that siblings of vaccine injured should have an easy time getting an exemption. Let’s see it in writing!
- UPDATE: “For kindergartners that year, Mississippi approved just 17 medical exemptions, the Centers for Disease Control and Prevention said. Neighboring Arkansas, which had about 3,100 fewer kindergarten students than Mississippi that year, recorded 24 medical exemptions, along with 468 religious or philosophical exemptions.” (source: http://www.nytimes.com/2015/02/05/us/mississippi-a-leader-on-vaccination-rates-stands-by-strict-rules.html?_r=0)
- Brown v. Stone as Allen’s chief argument— this case is a MISSISSIPPI STATE CASE. For non-lawyers, that means this case is not only completely irrelevant, but is not binding in any way shape or form. It’s not even a federal case! Additionally, Allen either has not read the case closely, or does not understand the fact that Mississippi did NOT pass a PBE free law in its legislature!!! They had a PBE and the judge struck it, essenitally because he felt like it. If you would like to read a case wrought with condescension, paternalism, and holier than tho judicial activism, then read this completely non binding 1979 case.
- Allen et al. repeatedly misstating nature of case law and PBE free laws in general— let’s get something straight. There are THREE STATES that have no PBE. THREE. Not 19, not 30, THREE. FOURTY SEVEN STATES have some sort of personal belief exemption. An overwhelming majority of states have some form of personal belief exemption.
- Allen misstated the nature of Phillips v. New York Case (2015)— let’s not get this one twisted too. This 2nd Circuit Court of Appeals case upheld the exclusion of a non vaccinated child from school during an active outbreak. The law contains a personal belief exemption: religious belief– which the child WAS GRANTED, and the court UPHELD. Phillips has a PBE, and there was an active outbreak. There was another plaintiff in the consolidated case who was denied a religious exemption, but the exemption itself was upheld. This case is ripe for review by the Supreme Court regarding why one family, of the same religion, was granted an exemption while the other was not. Further proof that the government should not entangle itself in religious matters, ala Lemon and related case law. (U.S. Supreme Court Case, binding precedent)
- Despite what Assemblywoman Gonzales attempted to assert in her cross examination, Chemerinsky has not published a legal paper on the topic of vaccinations.— if he did, it has not been published anywhere. Perhaps she was referring to this? A clearly opinion piece, bereft of any case citation, and based solely on the proposition that parents avoid vaccinations due to a misplaced (in his opinion) fear of autism. I’ll let you in on a little secret: Chemerinsky is a well known constitutional law scholar, in fact, I listened to his lectures for BarBri when I studied for the Bar Exam, and I passed on the first try! He knows constitutional law. But guess what, the fact that he hasn’t taken the time to write an in depth analysis of these issues means that he is not really interested in the issue that much. Further, it’s likely that he is unfamiliar with the specific cases and legal issues involved. Additionally, guess what, there are actually probably hundreds of thousands of constitutional law professors in the country. At least several that are also considered as well known as him– I was even a research assistant for one of them. Several of my professors clerked for current Supreme Court justices. In fact, our law school has a Center for Constitutional Originalism, which Justice Scalia regularly lectured at, and co-taught a course on Separation of Powers. You know what’s in the constitution? Equal Protection, Due Process, Liberty. Know what’s not in the Constitution? Authority for states to mandate medical procedures for all children across the state. Perhaps I am incorrect. Perhaps Chemerinsky has been published in a law journal on this topic? I have asked Ms. Gonzales for a citation several times now, and I am still waiting. If it exists, please share! I would LOVE to read that.
- UPDATE: I have been informed that Ms. Gonzales’s office stated she was referring to the OC Register article. What a joke.
- Not a SINGLE supporter of SB277 will address Roe v. Wade.— I’ve said it before, and I’ll say it again: Roe stands for medical choice regarding ANY procedure: Roe v. Wade, 410 U.S. 113 (1973), 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.” (U.S. Supreme Court Case, binding precedent)
- See also Lochner–is this “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). (U.S. Supreme Court Case, binding precedent)
- Fear of Contagion School Bd. of Nassau County v. Arline 480 U.S. 273 (1987) (U.S. Supreme Court Case, binding precedent) — in this U.S. Supreme Court case, the court said “The fact that some persons who have contagious diseases may pose a serious health threat to others under certain circumstances does not justify excluding from the coverage of the Act all persons with actual or perceived contagious diseases.”• “Such exclusion would mean that those accused of being contagious would never have the opportunity to have their condition evaluated in light of medical evidence and a determination made as to whether they were “otherwise qualified.” Rather, they would be vulnerable to discrimination on the basis of mythology…” Here the court is talking about individuals that are actually in fact inflicted with a disease.
- The Supreme Court recognized in Arline that a significant risk of transmission was a legitimate concern which could justify exclusion if the risk could not be eliminated through reasonable accommodation; however, it soundly rejected the argument that exclusion could be justified on the basis of “pernicious mythologies” or “irrational fear.” Id. at 1129-30 & n. 12. See also Ray, 666 F.Supp. at 1535. (see Chalk infra)
- The risk of Hepatitis B has been held legally insignificant in the classroom setting.“[T]he Board was unable to demonstrate that the health hazard posed by the hepatitis B carrier children was anything more than a remote possibility. There has never been any definite proof that the disease can be communicated by non-parenteral routes such as saliva. Even assuming there were, the activities that occur in classroom settings were not shown to pose any significant risk that the disease would be transmitted from one child to another.” New York State Ass’n of Retarded Children v. Carey, 612 F.2d 644, 650 (2d Cir.1979). [emphasis added]. Thus, not only is the fear of potential infection by children that are currently infected with Hepatitis B no more than a remote possibility, but the only logical conclusion is that the threat posed by children who are NOT infected with Hepatitis B, and choose to forego that vaccination, even less remotely likely to maybe, possibly, somehow, ever infect anyone else with the disease that they don’t even have. And yet HepB is required at birth, and not receiving a Hepatitis B shot will preclude children from any daycare or school setting in the state.
- “Little in science can be proved with complete certainty.” Chalk v. United Stated District Court Central Dist. of California, 840 F.2d 701 (1988) (Ninth Circuit Court of Appeals case– binding precedent)
With this, I will close this edition of LAW FACT CHECK:
The Court recognizes the concern and fear which is flowing from this small community, particularly from the parents of school age children in DeSoto County. However, the Court may not be guided by such community fear, parental pressure, and the possibility of lawsuits. “These obstacles, real as they may be, cannot be allowed to vitiate the rights …” of [the Ray children] . New York State Association for Retarded Children, Inc. v. Carey, 466 F.Supp. 479, 485 (E.D.N.Y.1978), aff’d, 612 F.2d 644 (2d Cir.1979). Chalk v. United Stated District Court Central Dist. of California, 840 F.2d 701 (1998) (Ninth Circuit Court of Appeals case– binding precedent)(emphasis added).
Please feel free to ask me any questions about the entirety of the relevant laws in these cases. Please refrain from picking and choosing the very weak cases that support your claims. Please also refrain from misconstruing the nature of PBE laws across the country. There are THREE states with no PBEs. One of which was due solely to judicial lawmaking.
Typo disclaimer: sometimes I have typos. When I notice them I fix them. 🙂