Vaccine concerned (VC) folks decry the recent loss of the personal belief exemption via SB 277, and feel like they’ve been abducted to some kind of communist state. (But hey, ever been to Berkeley!) The present legal reality is that we don’t have mandatory or forced vaccinations here. Rather, vaccines are required for people to engage in certain institutional activities; e.g., kids who want to go to school, or adults who want to work with kids or in health care.
Neither California, nor any other state (that I am aware of) forces a person to be vaccinated. Texas tried to force the HPV/Gardisal vaccination on young girls, but that was shot down.
But alas, we just might get forced childhood vaccination here in California, if I’m reading the tea leaves right. But that would be unconstitutional right? Not necessarily. In fact, the oft-cited original constitutional case on mandatory vaccination, Jacobson v Commonwealth of Mass. http://caselaw.findlaw.com/us-supreme-court/197/11.html held that the state can force people to get vaccinated. True, the opinion said so in the context of a public epidemic, but that’s just a detail, and wouldn’t necessarily stop the state from compelling a vaccine program not tied to an actual outbreak, especially given all of the decisions in the last one hundred years which have limited a person’s ability to challenge a state’s pro-vaccination policies.
So let’s say some self-proclaimed well-meaning folks and some big business interests wanted to force every child in a state, say California for example,to get every conceivable vaccine the vaccine manufacturers now or in the future push? How should they do it, hypothetically?
HOW TO FORCE ALL KIDS TO BE VACCINATED IN A FEW (RELATIVELY) EASY STEPS
First, if the state has a personal belief exemption, get rid of it.
SB 277: CHECK
Even the most rabid pro-vaxxers acknowledge that there have to be some temporary medical exemptions for kids with very serious diseases who are undergoing immunocompromising treatment.
The second step is to limit medical exemptions to the very few contraindications listed on each vaccine’s label and for only the short duration of the labeled contraindication.
Limiting exemptions to labeled contraindications essentially eliminates all blanket medical exemptions from vaccination, because most pro-vaxxers believe there are no medical conditions which justify an exemption from all vaccinations throughout childhood (maybe one, death, but Phama is probably thinking about a workaround for that too).
But the ugly reality for the hypothetical folks who want every child vaccinated is that there are a fair number of VC docs who will probably continue to write medical exemptions. Why? Because under SB 277, a medical exemption which complies with the law is not reversible or reviewable by a school.
So it’s absolutely vital to dissuade the VC docs from writing exemptions.
How? Simple: scare them. How? Two obvious tactics:
First, file charges against a highly visible VC doc CHECK
See my press release on Bob Sears’ cases:
here is my original post on Bob’s case: http://rickjaffeesq.com/2016/09/09/begins-first-accusation-filed-vaccine-exemption-writing-doc/
Second, make a public announcement that docs who issue medical exemptions which don’t meet the “standard of care” (i.e., are not forever contraindicated by the package label of each and every vaccine for which the exemption is sought, will be prosecuted by the board. (And by the way there are no such recognized complete exemptions according to the CDC and AAP).
The Medical Board’s recent announcement. CHECK
(See my last post)
How to force vaccination on the rest?
What about the home schoolers and parents who manage to get a non-standard of care full and indefinite medical exemption from the few and brave VC docs who still write exemptions? So what should the pro-vaxers who want to mandate vaccination for all children do?
Before I tell you, let me give you some legal background on parental rights. I’ve had extensive involvement with one very discrete aspect of parental rights, based on my work with CAM cancer clinics and in particular, a well know Texas clinic that has treated thousands of children with advanced cancer. (See chapters two and three in Galileo’s Lawyer. http://rickjaffeesq.com/
Not to digress, but there are no Christian Scientist children with serious medical conditions
Here’s the short of it: a person can refuse necessary medical treatment for him or herself, but a parent cannot decide to withhold needed medical treatment for a child. Not only is there no parental constitutional right to withhold necessary medical treatment from your own child, if a parent does not allow a child to receive necessary medical treatment for a serious medical condition, the parent’s legal custody will be temporarily terminated, and a guardian will be appointed to make medical decisions on the child’s behalf.
This has happened dozens of times across the country in cancer cases. Most are familiar with the common scenario. A child is diagnosed with advanced cancer, for which there is a supposedly curative or beneficial treatment. The parents refuse because of religious/philosophical reasons or because the parents don’t like the side effects of the recommended treatment and want to go the “natural way.”
After failing to convince the parents, the doctor (most often a chemotherapist) contacts the state child protective services. Eventually the case lands in family court. After a hearing, the parents are ordered to produce their child for treatment, or the parents lose legal custody of their child and a guardian is appointed who makes the decision for the child to undergo the treatment. For young children, under 10 or 12, the courts always order the conventional treatment. My rule of thumb is that if the kid can drive to the hearing, he/she may get to decide. But still, for young children, judges always force the child to receive necessary or potentially life-saving treatment, regardless of the philosophical beliefs or wishes of the parents.
It gets more complicated when the parents want to go with an alternative to conventional treatment and the alternative treatment has some rational basis and/or where there is a semi reputable doctor who can vouch for the alternative treatment. But the point is that not giving treatment to a child who has a serious medical condition where there are treatment options, is not an option a judge will consider.
In short, parental rights, and their opinions and beliefs are largely irrelevant in these kind of family court cases. In other words, parents do not have the right to withhold medical treatment/interventions deemed medically necessary for the health of the child. And there will never be such a right.
Yes, there are cases which talk about constitutionally protected parental rights, especially in the context of visitation rights, meaning a parent’s right to limit a grandparent’s visitation rights. But no case has ever applied a parental right to allow a parent to deny necessary medical care to his/her child.
Notwithstanding all of the above, obviously parents make medical decisions for their children all the time, and obviously their judgment is usually never questioned, except in the rare case of a principled basis refusal to allow conventional or any other needed treatment.
So let’s now go back to a hypothetical plan to mandate vaccinations for all children.
I suppose, you could try a frontal assault, by simply proposing a law requiring all children to be vaccinated according to the AAP and CDC guidelines. But that’s an emotional, hot button issue as the SB 277 battle showed, and it would be very messy. And remember, parents do have some rights and do initially make all medical decisions for their children.
Parental rights, hmmm. But there are a lot of stupid and ignorant people out there, (more than you would think based on recent events) and sometimes parents don’t act in their child’s best interest. Hmmm. What about the rights of the child? And can the rights of the child be in conflict with the decision and rights of the parents? Clearly so, as the cancer chemotherapy cases show.
Step 3: Children have rights too!
So the next step is to obtain legislative acknowledgement that children have rights independent of the rights and responsibilities of their parents. The beauty of this is how do you argue against the rights of children? The key is to create a bunch of general, obvious and innocuous sounding rights that won’t raise a heated fight like SB 277. The bill should create the obvious sounding right that kids are entitled to parents who make decisions in their child’s best interest. Go argue with that.
Equally obvious and seemingly innocuous is a child’s right to have “appropriate” health care. (who decides what is appropriate is the question of course). These are the two sleeper rights needed to effectuate the plan. The play would be to hide these sleeper rights in other even more obvious rights using unassailable buzz words like a “safe environment”, “emotional well-being” “social development.” What kind of jerk would oppose a bill ensuring that children have the tools to optimally develop?
How many rights? More than a few and less than ten. I’m spit-balling here, but seven sounds about right.
A tactical decision: Who should carry the bill? You don’t want to raise unnecessary concerns. It could be anyone, but it shouldn’t be the guy who spearhearded SB 277, Peter Pan or whatever his name was. Anyone but him, if what you want to hide what you’re really doing. But then, maybe a guy like that sees himself as the medical savior of all these poor unvaccinated kids. Anyway, Peter wouldn’t be my pick to lead the fight, if the goal is to pass this bill quietly.
So where are we hypothetically? SB 18 has been recently introduced by none other than Peter Pan aka Dr. Richard Pan, and the bill does it all. http://leginfo.legislature.ca.gov/faces/billTextClient.xhtml?bill_id=201720180SB18
SB 18: CHECK
But how to put some meat on the bare bones of these general, highly laudatory rights, including the right to have parents make correct medical decisions and a child’s rights to have “appropriate medical care”?
The best way would be to have the bill call for research based policy recommendations on these rights to ensure that all children are benefited equally by these rights. Also, say further legislation effectuating these policy recommendations will be forthcoming. These things take time, so give it a relatively long target date, maybe five or half dozen years.
After the bill is passed, create some special blue ribbon committee of recognized experts of the relevant medical specialties and overseeing organizations. Hey, how about the American Association of Pediatrics, the federal Center for Disease Control and the State Department of Health. Completely beyond reproach right?
The panel will have a bunch of meetings, commission reports to make it look as if it is actually investigating the issue. But it’s just windowdressing. The actual results of the panel are already known by the supporters of the bill and the panel members.
I’m going to pull out my crystal ball, go out on a limb and tell you the results of this hypothetical blue ribbon panel, years before the panel is formed or releases its findings: Here they are:
1. Childhood vaccines are thoroughly tested before they are released to the public.
2. Serious side effects from vaccines are extremely rare.
3. Despite the all the hysterical allegations, there is no proven causal connection between any childhood vaccine and any physical or mental disease, or any abnormal childhood developmental condition.
4. The vaccines administered to children per the most recent fully proven vaccine schedule dramatically reduce a child’s likelihood of contracting the disease which is the target of the vaccine.
5. The greater the percentage of children vaccinated, the greater the “herd immulogical” response which protects all vaccinated and unvaccinated children.
6. Based on the foregoing, there is no rational basis for any parent to withhold any childhood vaccine, except for a medically justifiable reason.
7. Medical exemptions from vaccinations should be based solely on a specific vaccine’s contraindications stated on the vaccine’s label or package insert and only for the duration of the medical condition justifying the temporary exemption.
8. Because of the uncontroverted scientific evidence in support of childhood vaccination, all children have the state constitutional right to obtain all vaccines recommended by the AAP and CDC.
9. To effectuate that right and promote the well-being of children, all parents have an obligation to fully vaccinate their children, unless there is a specifically recognized temporary contraindication.
10. The state should use all means at its disposal to enforced the child’s constitutional rights.
The panel members will receive the thanks of a grateful state (and whatever other hypothetical benefits they and their friends may obtain).
So what would happen next?
Here’s what I would do if I was charged with implementing these newly flushed-out rights:
Have local schools pick the heathiest looking vaccine medically exempt students. (An easy task since it’s rumored that unvaccinated kids are actually much healthier than their vaccinated co-students.)
File complaints against the vaccine exemption issuing docs, because there’s never enough pressure than can be put on docs who put their patients at risk of preventable disease and endanger “herd immunity.”
Contact California Child Protective Services and complain about the parents’ medical abuse based on their failure to protect the child’s constitutionally protected health rights. CPS will do a visit, and if that doesn’t work, a proceeding against the parents for violating their child’s state constitution rights to “appropriate medical care,” and forcing them to act in the best interests of their child would be initiated.
Eventually the case will land in the California Supreme Court, but if the issue is framed as a child’s right to necessary medical treatment vs. the parents’ right to withhold such treatment, the VC community won’t like the result.
But that decision won’t be for years, In the interim, there will be some high-profile CPS cases filed, and that surely will have a chilling effect and impact the decisionmaking of parents.
This is all hypothetical, except it isn’t. It’s obviously happening right now. Opposing SB 18 is a good place to begin. Better still, use this bill as a vehicle to reopen the public debate about vaccine safety, efficacy and herd immunity.
My view is that the VC community will never achieve anything by asserting what is viewed as a constitutional right of the few to infect or put at risk the many. Instead, focus on the science, or lack thereof.
Rick Jaffe, Esq.