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AB 2109

ALERT: California's AB 2109 Would Make Doctors Gatekeepers for Non-Medical Vaccine Exemptions!

Sunday, March 11, 2012 by: Alan Phillips, J.D.
Tags: AB 2109, vaccine exemptions, California

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(NaturalNews) California's pending bill, AB 2109,[1] would require parents exercising a non-medical vaccine exemption for their children to get a health care practitioner's signature on a form signifying that the doctor has given the parent vaccine risk-benefit information, and to provide a separate statement signed by the parent saying that the parent got the risk-benefit information from the doctor. There are practical, financial, ethical and legal problems with this bill. A formal legal memorandum that goes into detail is available here. CA residents are encouraged to present this memorandum to their state legislators, in person if possible to help ensure that they actually hear your concerns and take you seriously, to express their opposition to this bill. In the meantime, a summary of key points follows.

First, since doctors are increasingly refusing to see exempt children in their practices,[2] we must assume that many doctors will refuse to sign exemption forms or will charge high fees for doing so, to discourage or prevent exemptions. Ironically, doctors' aggressive stance against exempt kids in their practices is scientifically unsound. The 5% - 15% of vaccinated kids who are not immune[3] greatly outnumber the 1% - 2.5% of exempt kids.[4] Furthermore, exempt kids can acquire natural immunity, and without even getting sick,[5] so exempt kids may be immune without vaccines. Doctors have no trouble treating the many non-immune vaccinated kids, so the agenda underlying their discrimination of exempt children is clearly not based on public health concerns, despite their disingenuous chants to the contrary.

Second, healthcare providers' vaccine risk-benefit information can't address the fundamental concerns of non-medical exemptions. Philosophical exemption concerns include the fact that vaccines cause permanent disability and death, and doctors can't tell you which children will be disabled or killed by a vaccine. Religious objections concern a higher power not subject to medical opinion. (While CA's exemption does not refer explicitly to religious beliefs, CA statutory construction law dictates that the exemption applies to those with personal religious beliefs. See the memorandum for a complete legal analysis.) A healthcare provider's risk-benefit information is irrelevant to these philosophical and religious concerns. Therefore, AB 2109 would put healthcare providers in the unreasonable position of trying to use their medical opinion about vaccines to "overrule God" and to oppose parents' non-quantifiable concerns about their child's risk of being permanently disabled or killed by a vaccine. Furthermore, as most providers will mistakenly claim that exemptions create serious health risks, parents who sign the required letter or affidavit could later be accused of exercising poor judgment for their child, possibly even medical neglect. However, this belief is contrary to the legislative presumption that the exercise of an exemption poses no significant health risk (or else the legislature would not have enacted the exemption law in the first place), and the widely accepted herd immunity theory which tells us that all need not be immune for all to be protected. That is, healthcare providers are often unscientifically biased in their pro-vaccine views.

Third, AB 2109 would impose a financial barrier, as parents will have to pay healthcare providers to get the required lecture and signature on the form, and the state will have to pay for exemptions for children on Medicaid. This bill also poses a financial conflict of interest for doctors, as they stand to make more money providing ongoing immunizations than they do from a one-time signing of an exemption form. So, doctors will be reluctant to cooperate with parents and/or will be inclined to charge high fees for exemption lectures and their signature on a form, to compensate for the perceived financial loss.

Finally, AB 2109 is unconstitutional. First, California's exemption law, section 120365,[6] makes no explicit reference to religious beliefs, but nevertheless allows an exemption based solely on personal religious beliefs. The current statute refers to the exercise of an exemption with "a letter or affidavit stating that the immunization is contrary to his or her beliefs." (AB 2109 wouldn't change this language, it would only add additional requirements.) The California Court of Appeals recently held: "If the language is clear and a literal construction would not result in absurd consequences that the Legislature did not intend, we presume that the Legislature meant what it said and the plain meaning governs."[7] Since the state legislature used the word 'beliefs' without qualification, it's plain language meaning is necessarily inclusive of all beliefs, religious and otherwise. This is not an absurd result that the legislature did not intend, as the stated legislative intent shows. (Again, see the memorandum for the complete legal analysis.)

Next, federal courts have made it clear that one need not belong to an organized religion to qualify for First Amendment protection of religious beliefs opposed to immunizations; the beliefs need only be religious in nature and sincerely held.[8] So, personal religious beliefs clearly qualify under the Constitution, and the Constitution supports Californians' right to refuse vaccines due to their personal religious beliefs under section 120365. So, AB 2109 is unconstitutional, as federal courts have also held that the First Amendment's "free exercise" clause requires only a sincere religious belief; and this is true whether or not you belong to an organized religion, and regardless of what religion you belong to if you do.[9] The bottom line is, AB 2109's proposed additional requirements involving a healthcare practitioner, because they inhibit the free exercise of religion of those with personal religious beliefs opposed to immunizations who may exercise the exemption, is unconstitutional.

If we don't become legislatively active, we will pay the price as we continue to lose more and more vaccine rights. This has already happened in many states and is happening around the U.S., as restrictions have been imposed on access to exemptions and even children have been given authority to consent to vaccines, despite violations to the Constitution. We must actively oppose bad legislation and bad law if we are to have a world where health and sanity prevail. Join the NVIC's Advocacy Portal or the Pandemic Response Project's email list. In the meantime, I'm available to assist with vaccine rights concerns throughout the U.S.

Alan Phillips, J.D. is a leading national vaccine rights attorney and vaccine legislative activist. For more information, see the Vaccine Rights website.
[1] AB 2109, An Act to Amend Section 20365 of the Health and Safety Code, Relating to Communicable Disease

[2] More Doctors 'Fire' Vaccine Refusers, The Wall Street Journal, Health and Wellness, February 15, 2012.

[3] Centers for Disease Control and Prevention, Vaccines and Immunizations, Misconception #2: The majority of people who get disease have been vaccinated, http://www.cdc.gov/vaccines/vac-gen/6mishome.htm

[4] Non-medical Exemptions to School Immunization Requirements, The Journal of the American Medical Association, 2006.

[5] Centers for Disease Control and Prevention, Vaccines and Immunizations, Glossary, "Asymptomatic infection: The presence of an infection without symptoms. Also known as inapparent or subclinical infection", http://www.cdc.gov/vaccines/about/terms/glossary.htm

[6] California Health and Safety Code, Section 120325-120380

[7] Vitkievicz v. Valverde, 202 Cal.App.4th 1306, 1311 (2012).

[8] See, e.g., Sherr and Levy vs. Northport East-Northport Union Free School District, 672 F. Supp. 81, 98 (E.D.N.Y., 1987) (holding that the state "must offer the exemption to all persons who sincerely hold religious beliefs. . .").

[9] See, e.g., Sherr, 672 F. Supp. at 99 (E.D.N.Y., 1987) which held that the "limitation of the availability of a religiously-based exemption from immunization to 'bona fide members of a recognized religious organization' whose doctrines oppose such vaccinations violates both the establishment and free exercise clauses of the First Amendment to the United States Constitution," and Farina v. The Board of Education, 116 F. Supp.2d 503, 507 (S.D.N.Y. 2000), which held that "the beliefs need not be consistent with the dogma of any organized religion, whether or not the plaintiffs belong to any recognized religious organization." (citing Sherr, 672 F. Supp. at 91).

About the author:
Alan Phillips, Vaccine Rights Attorney
[email protected], 1-828-575-2622
Vaccine Rights (www.vaccinerights.com)

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