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Proposed new limits on vaccine exemptions: Are they constitutional?

Tuesday, February 22, 2011 by: Alan Phillips, J.D.
Tags: vaccine, exemptions, health news

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(NaturalNews) Health authorities around the country are set on further restricting vaccine exemption rights, probably due to the growing awareness of vaccine problems and increase in exemptions around the country. Currently, proposed laws in Washington State and New Jersey would limit the ability of residents in those states to refuse vaccines. If not stopped, those new restrictions will soon become law and pave the way for further restrictions across the country. Predictably, anti-vaccine activists are opposing these bills, but with state health departments and well-financed pharmaceutical lobbyists on the other side, is a grass roots effort likely to succeed? Hopefully so, but if the proposed laws are shown to raise significant Constitutional issues, anti-vaccine activists may find that they have a "David" advantage against the "Goliath" opposition.

The importance of this critical strategic point cannot be overstated. A bill can die a quick death if it is unconstitutional, regardless of how many constituents or special interest groups support it. It may take thousands of activists to successfully oppose legislation supported by state health authorities and the pharmaceutical industry, but it may take only one activist revealing serious Constitutional flaws to stop the bill dead in its tracks. So, let's take a look at some of the arguments, as these may apply to future attempts to restrict vaccine exemptions in other states in the future, as well as to these two states now.

In Washington State, SB 5005 would require that forms for all exemptions, whether religious, medical or philosophical, to "include a statement signed by a health care practitioner, that the parent or guardian has been informed of the benefits and risks of the immunization."1 Aside from failing the common sense test - health care practitioners should not be the gatekeepers of non-medical exemptions - this bill may also be unconstitutional with regard to religious exemptions.

The U.S. Constitution does not require states to offer religious exemptions, but when they do, those laws must conform to the boundaries of the First Amendment's 'free exercise' and 'establishment' clauses. But since the Constitution doesn't mention vaccines or exemptions, how do we know what these clauses really mean with regard to vaccine exemptions? When the application of law to a specific set of facts is unclear, we must look to legal precedent from the courts for guidance.

Federal courts have held that the only two requirements needed to invoke First Amendment protection for religious exemptions is that the beliefs be religious in nature and that they be sincerely held.2 The boundaries of those two requirements are defined by legal precedent as well, but for SB 5005 purposes, the point is that this bill would add an additional requirement, above and beyond what the First Amendment requires. Since federal law is a higher authority than state law, a state law arguably can't add requirements over and above what is required by the federal, First Amendment, as set forth in federal legal precedent.3 So, Washington State's SB 5005 may violate the First Amendment, and if passed, it would be vulnerable to attack and subject to being stricken accordingly.

The proposed NJ bill, ACR157,4 raises other Constitutional concerns. It would require parents to provide a "written statement . . . explaining how the administration of the vaccine conflicts with the bona fide religious tenets or practice," whereas currently, New Jersey parents need only provide a signed, written statement that the vaccines interfere with the free exercise of the pupil's religious rights. The new wording raises Constitutional concerns in that the words 'tenets' and 'practices' could reasonably be interpreted to require membership in an organized religion, and in any event exclude someone whose religious beliefs, but not a tenet or practice, were violated by the vaccine requirements.

However, federal legal precedent tells us that the First Amendment rights may apply whether or not applicants are members of an organized religion, and regardless of which church they belong to if they are;5 and that one need only have the above-cited sincerely held, religious belief - not a violated tenet or practice. So, if the New Jersey bill becomes law, it would arguably violate the First Amendment, and the new law would be subject to attack and to being stricken accordingly. This risk is a strong deterrent to legislative support!

To be perfectly fair, the bill might pass Constitutional scrutiny if it was simply amended to add the word 'beliefs' to the phrase "tenets and practices," since, unfortunately, the Constitution does not prohibit a state from scrutinizing religious exemption claims. But this bill raises other Constitutional concerns. Under the U.S. Supreme Court's Lemon case,6 a law violates the First Amendment establishment clause if it fails any one or more of these tests: 1) The government action must have a secular purpose, 2) it must not have the primary effect of either advancing or inhibiting religion, and 3) it must not result in an "excessive government entanglement" with religion. While minimizing exemptions may be deemed a secular purpose, and the primary effect may not be that of advancing or inhibiting religion (vs. presumably protecting the public health), it is inevitable that at least some local authorities will become involved in excessive entanglement with religion when they are tasked with deciding which religious beliefs qualify and which don't.

For one thing, what is a sincerely held religious belief to one person may not always look like that to someone else; for another, some who fear unvaccinated persons may reject those with sincerely held religious beliefs improperly. This is likely why many states' religious exemption laws are worded in such a way as to prohibit the state from scrutinizing religious exemption claims (and that fact, too, supports those who oppose this New Jersey bill).

A third Constitutional issue with this New Jersey bill concerns giving local authorities the responsibility for assessing religious beliefs. This would inevitably result in an inconsistent application of the standards that exemption applicants must meet. Some of the people scrutinizing religious exemption applications will want to exclude all the applicants they can because they fear that exempt children put others at risk (but if vaccines work, how could that be?), or will wrongfully include or exclude some applicants because they fail to understand the legal boundaries of what qualifies for the exemption despite having good intentions. The bottom line is, if there is not a clear standard that is applied consistently throughout the state, that may result in 'equal protection' violations under the 14th Amendment. So, there are serious implementation problems with this bill. For all of these reasons, the New Jersey bill should not be passed.

One final argument against bills aimed at restricting access to vaccine exemptions in general is the lack of the need to do so, even under mainstream views of vaccines and infectious disease. All states have authority to require vaccines or to quarantine the unvaccinated during outbreaks and emergencies. So, there is no need to rush through legislation to close the exemption gap; state health authorities already have the authority they need to deal with any genuine infectious disease problems. Indeed, to the contrary, there is a moral and ethical imperative to expand exemption rights, as noted in the recent article, "Vaccine philosophical exemptions: A moral and ethical imperative" at http://www.naturalnews.com/Author_Alan_Phill... and powerful evidence that states already have excessive, overreaching authority in emergencies, as explained in the "Swine Flu Review" at http://www.pandemicresponseproject.com/swine....

The above is only an introduction to the issues discussed. To better understand your vaccine exemption and waiver rights and for documents providing legislative support to pro-vaccine-choice activists around the country, see the Vaccine Rights website at www.vaccinerights.com, or contact the author.
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[1] Senate Bill Report SG 5005, http://apps.leg.wa.gov/documents/billdocs/20...
12/Pdf/Bill%20Reports/Senate/5005%20SBA%20HEA%2011.pdf.

[2] See, e.g., Sherr and Levy vs. Northport East-Northport Union Free School Dist., 672 F. Supp. 81 (E.D.N.Y., 1987), and Mason v. General Brown Cent. School Dist., 851 F.2d 47 (2nd Cir. 1988).

[3] The explanation is simplified here for purposes of this article. For the more precise explanation of how legal precedent applies, see The Authoritative Guide to Vaccine Legal Exemptions at http://www.vaccinerights.com/e-book.html.

[4] NJ ACR157, http://www.njleg.state.nj.us/2010/Bills/ACR/....

[5] See, e.g., Farina v. The Board of Education, 116 F. Supp.2d 503, 507 (S.D.N.Y. 2000).

[6] Lemon v. Kurtzman, 403 U.S. 602 (1971).


About the author:
Alan Phillips, Vaccine Rights Attorney
attorney@vaccinerights.com, 1-828-575-2622
Vaccine Rights (www.vaccinerights.com)

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