BILL ANALYSIS Ó
SENATE JUDICIARY COMMITTEE
Senator Hannah-Beth Jackson, Chair
2015 - 2016 Regular Session
SB 277 (Pan and Allen)
Version: April 22, 2015
Hearing Date: April 28, 2015
Fiscal: Yes
Urgency: No
RD
SUBJECT
Public health: vaccinations
DESCRIPTION
This bill would eliminate the personal belief exemption from the
requirement that children receive specified vaccines for certain
infectious diseases (including diphtheria, hepatitis B,
haemophilus influenzae type b, measles, mumps, pertussis,
poliomyelitis, rubella, tetanus, and chicken pox) prior to being
admitted to any public or private elementary or secondary
school, child care center, day nursery, nursery schools, family
day care home, or developmental centers, and would make other
conforming changes. This bill would specify that this mandatory
vaccination requirement (for which the bill would only leave a
medical exemption) does not apply to a home-based private school
or a student enrolled in an independent study program.
This bill would, in certain circumstances, permit a child to be
temporarily excluded from the school or institution until the
local health officer is satisfied that the child is no longer at
risk of developing or transmitting a communicable disease for
which immunization is otherwise required by law.
This bill would add to existing notifications that school
districts must give to parents, the immunization rates for the
school in which a pupil is enrolled for each of the
immunizations required.
BACKGROUND
According to the Center for Disease Control and Prevention
(CDC), it is always better to prevent a disease than to treat it
after it occurs. Immunity is the body's way of preventing
disease. The immune system recognizes germs that enter the body
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as "foreign invaders" (called antigens) and produces proteins
called antibodies to fight them. Vaccines contain the same
antigens, or parts thereof, that cause diseases, but the
antigens in vaccines are either killed or greatly weakened. As
such, vaccine antigens are not strong enough to cause disease
but they are strong enough to make the immune system produce
antibodies against them. Memory cells prevent re-infection when
they encounter that disease again in the future. According to
the CDC, "a vaccine is a safer substitute for a child's first
exposure to a disease." (CDC, Why are Childhood Diseases so
Important? [as
of Apr. 19, 2015].) Vaccines are responsible for the control of
many infectious diseases that were once common around the world,
including polio, measles, diphtheria, pertussis (whooping
cough), rubella (German measles), mumps, tetanus, and Hib. In
fact, vaccine eradicated smallpox, one of the most devastating
diseases in history. Over the years, vaccines have prevented
countless cases of infectious diseases and saved literally
millions of lives. (Id.) According to the California Department
of Public Health (CDPH), implementation of statewide
immunization requirements has been effective in maintaining a 92
percent immunization rate among children in child care
facilities and kindergartens. (CDPH, 2011-2012 Child Care and
School Fact Sheet (Jul. 2012)
[as of Apr. 19, 2015].)
Recently, California witnessed an outbreak of measles, a
vaccine-preventable disease. According to CDPH, "[i]n December
2014, a large outbreak of measles started in California when at
least 40 people who visited or worked at Disneyland theme park
in Orange County contracted measles; the outbreak also spread to
at least half a dozen other states. On April 17, 2015, the
outbreak was declared over, since at least two 21-day incubation
periods (42 days) have elapsed from the end of the infectious
period of the last known outbreak-related measles case." (CDPH,
Measles
[as of Apr. 19, 2015].)
Under California law, before being admitted to any private or
public elementary or secondary school, child care center, day
nursery, nursery school, family day care home, or developmental
center, a child must be vaccinated for 10 separate diseases
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(diphtheria, hepatitis B, haemophilus influenzae type b,
measles, mumps, pertussis, poliomyelitis, rubella, tetanus, and
chicken pox), as well as any other disease deemed appropriate by
the California Department of Public Health, as specified.
(Health & Saf. Code Sec. 120335(b).) California law also,
however, currently recognizes exemptions from the mandatory
immunization law for both medical reasons and because of
personal beliefs (personal belief exemptions or PBEs). (See
Health & Saf. Code Sec. 120325(c).) In order to exercise a
medical reason exemption, the parent or guardian must obtain a
written statement by a licensed physician to the effect that the
physical condition of the child is such, or medical
circumstances relating to the child are such, that immunization
is not considered safe, and indicating the specific nature and
probable duration of the medical condition or circumstances that
contraindicate immunization. Once the physician statement is
filed with the governing authority, that person (i.e. child)
shall be exempt from specified requirements to the extent
indicated by the physician's statement. (See Health & Saf.
Code Sec. 120370.)
In 2012, in response to concerns of increased PBEs, the
Legislature passed AB 2109 (Pan, Ch. 821, Stats. 2012) to modify
the process for obtaining exemptions to one or more
immunizations required for child care or school based on
personal beliefs. Under that law, PBEs now require
documentation that health care practitioners have informed the
parents about vaccines and diseases. Notably, that form
requires that the parent check one of two boxes: (1) that he or
she has received information from an authorized health care
practitioner regarding the benefits and risks of immunizations,
as well as the health risks to the student and to the community
of the communicable diseases for which immunization is required
in California; or (2) that he or she is a member of a religion
which prohibits seeking medical advice or treatment from
authorized health care practitioners.
This bill would now remove the personal belief exemption, thus,
requiring all children entering into private or public
elementary or secondary school, child care center, day nursery,
nursery school, family day care home, or developmental center to
be vaccinated as a condition of entry into those institutions,
unless a medical reason exemption applies. This bill would also
exempt from mandatory immunization a home-based private school
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or student enrolled in independent study, as specified.
This bill was triple-referred, with the Senate Health Committee
and Senate Education Committee hearing the bill prior to this
Committee. Those committees passed out the bill on a vote of
6-2 and 7-2, respectively.
CHANGES TO EXISTING LAW
1. Existing law , the Education Code, requires that certain
notifications be made by school districts to parents. (Educ.
Code Sec. 48980.)
This bill would require such notification to include
immunization rates for the school in which a pupil is enrolled
for each of the immunizations mandated by law.
2. Existing law provides that each person between the ages of
6 and 18 years not exempted, as specified, is subject to
compulsory full-time education. Existing law provides that
each person subject to compulsory full-time education and each
person subject to compulsory continuation education not
exempted, as specified, must attend the public full-time day
school or continuation school or classes and for the full time
designated as the length of the schoolday by the governing
board of the school district in which the residency of either
the parent or legal guardian is located. Existing law
requires that each parent, guardian, or other person having
control or charge of the pupil send the pupil to the public
full-time day school or continuation school or classes and for
the full time designated as the length of the schoolday by the
governing board of the school district in which the residence
of either the parent or legal guardian is located. (Educ.
Code Sec. 48200.)
Existing law authorizes the governing board of a school
district or a county office of education to offer independent
study to meet the educational needs of pupils in accordance
with specified requirements. (Educ. Code Sec. 51745 et seq.)
Existing law provides that the independent study by each pupil
shall be coordinated, evaluated, and, notwithstanding
specified law, shall be under the general supervision of an
employee of the school district, charter school, or county
office of education who possesses a valid certification
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document or an emergency credential as required by law.
(Educ. Code Sec. 51745.7(a).)
Existing law prohibits the unconditional admission of a
student to any private or public elementary or secondary
school, child care center, day nursery, nursery school, family
day care home, or development center, unless, prior to the
child's first admission to that institution, the child has
been fully immunized against: diphtheria; haemophilus
influenzae type b; measles; mumps; pertussis; poliomyelitis;
rubella; tetanus; hepatitis B; varicella; and any other
disease deemed appropriate by the California Department of
Public Health, taking into consideration the recommendations
of the Advisory Committee on Immunization Practices of the
U.S. DHHS, the American Academy of Pediatrics, and the
American Academy of Family Physicians. (Health & Saf. Code
Sec. 120335(b).)
Existing law provides the intent of the Legislature to provide
exemptions from immunization for medical reasons or because of
personal beliefs. (Health & Saf. Code Sec. 120325(b).)
Existing law provides that if a parent or guardian files with
the governing authority a written statement by a licensed
physician to the effect that the physical condition of the
child is such, or medical circumstances relating to the child
are such, that immunization is not considered safe, indicating
the specific nature and probable duration of the medical
condition or circumstances that contraindicate immunization,
that child shall be exempt from the immunization requirements
to the extent indicated by the physician's statement. (Health
& Saf. Code Sec. 120370.)
Existing law requires, on and after January 1, 2014, that a
separate form prescribed by the California Department of
Public Health accompany a letter or affidavit to exempt a
child from immunization requirements on the basis that an
immunization is contrary to beliefs of the child's parent or
guardian. The form must include:
A signed attestation from a health care practitioner
that indicates that the parent or guardian of the person
who is subject to the immunization requirements, the adult
who has assumed responsibility for the care and custody of
the person, or the person if an emancipated minor, was
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provided with information regarding the benefits and risks
of the immunization and the health risks of the
communicable diseases listed above to the person and to the
community.
A written statement signed by the parent or guardian of
the person who is subject to the immunization requirements,
the adult who has assumed responsibility for the care and
custody of the person, or the person if an emancipated
minor, that indicates that the signer has received the
information provided by the health care practitioner
pursuant to the provision above. (Health & Saf. Code Sec.
120365(b).)
Existing law provides, in relation to children exempted from
immunization under the personal belief exemption, when there
is good cause to believe that the person (i.e. child) has been
exposed to one of the specified communicable diseases, that
person may be temporarily excluded from the school or
institution until the local health officer is satisfied that
the person is no longer at risk of developing the disease.
(Health & Saf. Code Sec. 120365(e).)
This bill would repeal the personal belief exemption and
provisions relating to the exercise of the personal belief
exemption above, leaving only a medical exemption to the
immunization requirements above.
This bill would provide that the mandatory immunization
provisions above do not apply to a home-based private school
or to a student who is enrolled in an independent study
program pursuant to the Education Code, as specified.
This bill would provide that when there is good cause to
believe that a child whose documentary proof of immunization
status does not show proof of immunization against the
communicable diseases required has been exposed to one of
those diseases, that child may be temporarily excluded from
the school or institution until the local health officer is
satisfied that the child is no longer at risk of developing or
transmitting the disease.
COMMENT
1. Stated need for the bill
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According to the authors:
In early 2015, California became the epicenter of a measles
outbreak which was the result of unvaccinated individuals
infecting vulnerable individuals including children who are
unable to receive vaccinations due to health conditions or age
requirements. According to the Centers for Disease Control and
Prevention, there were more cases of measles in January 2015
in the United States than in any one month in the past 20
years. Measles has spread through California and the United
States, in large part, because of communities with large
numbers of unvaccinated people. Between 2000 and 2012, the
number of Personal Belief Exemptions (PBE) from vaccinations
required for school entry that were filed rose by 337
[percent]. In 2000, the PBE rate for Kindergartners entering
California schools was under 1 [percent]. However, as of
2012, that number rose to 2.6 [percent]. From 2012 to 2014,
the number of children entering Kindergarten without receiving
some or all of their required vaccinations due to their
parent's personal beliefs increased to 3.15 [percent]. In
certain pockets of California, exemption rates are as high as
21 [percent] which places our communities at risk for
preventable diseases. Given the highly contagious nature of
diseases such as measles, vaccination rates of up to 95
[percent] are necessary to preserve herd immunity and prevent
future outbreaks.
This bill removes the ability for parents to file a personal
belief exemption from the requirement that children receive
vaccines for specific communicable diseases prior to being
admitted to any private or public elementary or secondary
school, child care center, day nursery, nursery school, family
day care home, or development center. It further provides a
home school exemption for students who are of a single
household or family.
The sponsor of this bill, Vaccinate California, writes that they
believe it is "unfair and unreasonable for a small minority to
put the rest of us at risk [ . . . ] Those who can vaccinate
their children but refuse are jeopardizing their own children as
well as the rest of us. [ . . . ] We ought to be able to send
our kids to daycare and school without fear they will come home
with measles or whooping cough."
In support, an individual law professor, writes that "[w]hile
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California's courts found that education is a fundamental
interest under our constitution, that finding has been used in
the wealth and race contexts; it has never been applied to
prevent the state from regulating to make schools safer, as SB
277 tries to do. Safe schools are a precondition to education;
and it's well established that the state can act to obtain that
goal: there are few interests more compelling than the health
and safety of the students entrusted to our system. SB 277 helps
protect this compelling interest, and by increasing herd
immunity, would also protect the vaccine-deprived children
themselves from disease." This professor adds that the bill does
not prevent children from getting an education: the bill
"exempts a variety of homeschooling options, some with support
from our private schools. If the parents are unwilling to
protect children from disease, they have choices-even if those
would not be their first choice." Additionally, she adds that
school immunization requirements have been upheld as
constitutional, even without religious exemptions, "by every
court-federal and state-that ruled on the issue, since the
seminal case of Prince v. Massachusetts, 321 U.S. 158, 170
(1944). Most recently, two circuit courts upheld them [in the
4th and 2nd Circuits] [citations omitted]. That's because
religious freedom do[es] not justify putting other states at
risk of disease. [. . .]"
Multiple supporters, including the California State Association
of Counties (CSAC), write that "California has seen an increase
in the number of personal belief exemptions (PBE) from
vaccinations. In fact, from 2010 to 2012, the number of
children entering Kindergarten without receiving some or all of
their required vaccinations rose by 25 percent. Vaccine
coverage at the community level is vitally important for people
too young to receive immunizations and those unable to receive
immunizations due to medical reasons. States that easily permit
personal belief exemptions from immunizations have significantly
higher rates of exemptions and consequently a larger unimmunized
population than states with more complex exemption approvals.
However, school and child care immunization requirements have
been shown to effectively increase immunization coverage, limit
the spread of disease, and provide an overall public health
benefit." California Hepatitis Alliance (CalHEP) shares similar
statistics, adding that "[s]ince 2000, the number of California
families requesting a [PBE] from vaccinations required for
school entry has risen by 337 [percent]. In 2000, the PBE rate
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for Kindergarteners entering California Schools was under 1
[percent] (0.77 [percent])." CalHEP writes that "[p]rotecting
the individual and the community from communicable diseases such
as measles, mumps, and pertussis, is a core function of public
health."
The American Academy of Pediatrics argues that "[i]f there is a
single place that children must be kept safe as humanly possible
it is at school/child care." California Academy of Family
Physicians writes in support that while AB 2109 (Pan, Ch. 821,
Stats 2012) "resulted last year in the first decrease in PBE use
in a decade, the recent measles outbreak underscored the need to
do more. In 2000, the Centers for Disease Control determined
that measles had been eradicated in the United States. However,
since December 2014, California has had 134 confirmed cases of
measles across [13] counties. Twenty percent of those cases
have required hospitalization. Efforts to contain the outbreak
have resulted in mandatory quarantines and the redirection of
public health resources to investigations into exposure. [ . . .
] Removing the PBE will protect the most vulnerable, babies too
young to be immunized, and people who are immunocompromised,
from the risks associated with contracting these diseases. It
will also protect the community at large from increased
outbreaks of vaccine-preventable disease." The California
School Nurses Association also writes in support that they know
"certain schools and school districts have high rates of
unvaccinated children [ . . .] Having 'community immunity'
varies by vaccine but it provides protection for those students
and staff who for medical reasons are unable to be vaccinated or
are immunocompromised." [Footnote omitted.]
In support, the California Immunization Coalition adds that
while AB 2109 "helped to tighten up the [PBE] process-it is not
enough. We do not want to see a child die from measles before
we take this important step to prevent additional outbreaks and
spread of diseases. California needs to take stronger measures
to protect children in our schools and in our communities."
2. Liberty rights and parental rights balanced against the
police powers of the state
According to the National Conference of State Legislatures
(NCSL), California is one of 20 states that currently provides
for a philosophical or personal belief exemption. Almost all
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states provide a religious exemption. There are also two
states, Mississippi and West Virginia, that provide neither a
religious, nor a philosophical, exemption. (NCSL, States with
Religious and Philosophical Exemptions from School Immunization
Requirements (Mar. 3, 2015)
[as of Apr. 19, 2015].)
This bill seeks to repeal California's personal belief exemption
to the state's mandatory vaccination law as a condition upon
entrance into public and private schools, as well as child care
centers, and like institutions, leaving only a medical exemption
to the existing immunization requirements. For parents electing
to not vaccinate their children, the bill would provide that the
mandatory immunization requirement does not apply to a
home-based private school or to a student enrolled in an
independent study program, as specified. Additionally, where
there is good cause to believe that a child whose documentary
proof of immunization status does not show proof of immunization
against a communicable disease for which immunization is
otherwise required by law and that the child has been exposed to
the disease, this bill would allow for the child to be
temporarily excluded from the school or institution until the
local health officer is satisfied that the child is no longer at
risk of developing or transmitting that disease.
Committee staff recognizes that there has been significant
public debate over the propriety of mandating vaccinations.
That debate has been reflected in both the support and
opposition to this bill. Moving beyond the health arguments,
and into the legal arguments, on the one hand, many people feel
very strongly that they have the right, as parents, to make
these medical decisions for their children with their children's
doctor, and that any effort to limit their authority to do so
would infringe not only upon that right, but the right to
education for their children, and potentially even their
religious beliefs. On the other hand, many other people
believe that parents do not have the right to make choices that
place other children and the larger public at risk, particularly
when it comes to sending their children to schools where other
children are placed at greater risk. This side also tends to
believe that the state has both the authority and obligation to
ensure the public health and safety against communicable
diseases so that their children can safely go to school, as they
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are required to do. Each side, notably, relies heavily on
"rights" and "liberties" in making their arguments against the
other side.
As a matter of constitutional law, rights do not exist in a
vacuum; in fact, they often clash with other rights, if not the
rights of others around them. As such, when assessing whether
certain actions are protected as a valid exercise of one's
rights-or alternatively, when assessing the validity of
limitations inherent to or placed upon that right by the
government-the issue is, in actuality, trifold: does a
constitutionally or statutorily cognizable right exist, either
under federal or state law? Where does the right begin? And
where does it end? Further, if the state does have the authority
to place limits upon the exercise of that right, how extensive
can those limits be? At what point does the state interest
outweigh the right?
At the outset, the rights implicated by this bill include the
right of the individual (or his or her parent, in the case of
minors) to refuse a specific treatment or to exercise religious
beliefs against the treatment-namely, vaccinations. Inversely,
the bill also implicates the liberty interests of other students
and members of the public to be free of harm that could be
avoided by way of vaccination. It also implicates the right to
education for all involved. With those issues in mind, this
bill arguably seeks to exercise the police power authority of
the state, and the state's parens patriae authority to step in
to protect persons legally unable to act on their own behalf in
order to prevent the spread of communicable diseases.
a. Supreme Court has recognized that states' police powers
include the power to stop the spread of communicable
diseases
In 1905 the U.S. Supreme Court, in the case of Jacobson v.
Massachusetts (197 U.S. 11), upheld a Massachusetts law
mandating vaccinations for adults, holding that the police
power of a state must be held to embrace, at least, such
reasonable regulations established directly by legislative
enactment as will protect the public health and safety (such
as by stopping the spread of communicable diseases). In that
case, the state required in the inhabitants of a city or town
to be vaccinated only when, in the opinion of the Board of
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Health, vaccination was necessary for the public health or
safety. There, the Court upheld the Massachusetts compulsory
vaccination law despite arguments that such laws violate
personal liberty rights protected under the 14th Amendment to
the U.S. Constitution and that vaccines can cause injuries or
dangerous effects. As expressed by the Court, it is within
the police power of a State to enact a compulsory vaccination
law, and it is for the legislature, not for the courts, to
determine in the first instance whether vaccination is or is
not the best mode for the prevention of smallpox and the
protection of the public health. "The possibility that the
belief may be wrong, and that science may yet show it to be
wrong, is not conclusive; for the legislature has the right to
pass laws which, according to the common belief of the people,
are adapted to prevent the spread of contagious diseases."
(Id. at 35.)
In rendering its decision, the Court recognized the legitimate
police power of the state to enact reasonable regulations to
protect the public health and public safety in this fashion,
but also acknowledged that the regulations cannot contravene
the federal Constitution or infringe on rights granted or
secured by the Constitution:
The authority of the State to enact this statute is to be
referred to what is commonly called the police power-a
power which the State did not surrender when becoming a
member of the Union under the Constitution. [ . . . ]
According to settled principles the police power of a State
must be held to embrace, at least, such reasonable
regulations established directly by legislative enactment
as will protect the public health and the public safety. [
. . . ] The mode or manner in which those results are to
be accomplished within the discretion of the State,
subject, of course, so far as Federal power is concerned,
only to the condition that no rule prescribed by a State,
nor any regulation adopted by a local governmental agency
acting under the sanction of state legislation, shall
contravene the Constitution of the United States or
infringe any right granted or secured by that instrument.
(Id. at 24-25.)
In Jacobson, the defendant argued that the Massachusetts
compulsory vaccination law invaded his liberty rights by
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subjecting him "to fine or imprisonment for neglecting or
refusing to submit to vaccination; that a compulsory
vaccination law is unreasonable, arbitrary and oppressive,
and, therefore, hostile to the inherent right of every freeman
to care for his own body and health in such way as to him
seems best; and that the execution of such a law against one
who objects to vaccination, no matter for what reason, is
nothing short of an assault upon his person." (Id. at 26.)
The Court, however, disagreed, writing that:
The liberty secured by the Constitution of the United
States does not import an absolute right to each person to
be at all times, and in all circumstances wholly freed from
restraint. There are manifold restraints to which every
person is necessarily subject for the common good. . . .
In Crowley v. Christenson, 137 U.S. 86, 89, we said: "The
possession and enjoyment of all rights are subject to such
reasonable conditions as may be deemed by the governing
authority of the country essential to the safety, health,
peace, good order and morals of the community. Even
liberty itself, the greatest of all rights, is not
unrestricted license to act according to one's own will.
It is only freedom from restraint under conditions
essential to the equal enjoyment of the same right by
others. It is then liberty regulated by law." (Id. at
26-27.)
While the Court recognized that there is, of course, "a sphere
within which the individual may assert the supremacy of his
own will and rightfully dispute the authority of any human
government, especially of any free government existing under a
written constitution, to interfere with the exercise of that
will," the Court also recognized it is "equally true that in
every well-ordered society charged with the duty of serving
the safety of its members the rights of the individual in
respect of his liberty may at times, under the pressure of
great dangers, be subjected to such restraint, to be enforced
by reasonable regulations, as the safety of the general public
may demand." (Id. at 29.)
The Court expressed that the power of the judiciary in
reviewing legislative action in respect of a matter affecting
the general welfare arises when "a statute purporting to have
been enacted to protect the public health, the public morals
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or the public safety, has no real or substantial relation to
those objects, or is, beyond all question, a plain, palpable
invasion of rights secured by the fundamental law." (Id. at
31 (internal citations omitted).) The Court held that this
was not such a situation where there was no real or
substantial relation between the law to the protection of
public health and safety, or that the law was, beyond
question, in palpable conflict with the Constitution. (Id. at
31-32.) Additionally, the Court declined to hold that
"liberty" as secured by the U.S. Constitution dictated that
the concerns of one, or of a minority (regarding vaccine
safety), could override laws seeking to protect the public
health and safety of all others. (Id. at 38.)
b. Liberty interests of the individual to refuse treatment
post-Jacobson
While there is a general right to refuse medical treatment for
adults encompassed in the liberty interests protected by the
14th Amendment, that right as noted above, is not absolute and
can be regulated by the State. (See Jacobson v. Massachusetts
(1905) 197 U.S. 11; see also Cruzan v. Director, Missouri
Dept. of Health (1990) 497 U.S. 261, where the Court held that
a competent adult has a fundamental right to accept or reject
medical treatment, including the right to withdraw or withhold
life-sustaining treatment that may cause or hasten death; and
Washington v. Harper 494 U.S. 210 (1990) 221-222, 229,
recognizing that prisoners have a significant liberty interest
under the Due Process Clause of the Fourteenth Amendment to be
free of unwanted administration of anti-psychotic medications,
but also recognizing that such interests are adequately
protected if the inmate has been provided notice and a hearing
before a tribunal of medical and prison personnel at which the
inmate could challenge the decision to administer the drugs.)
Unlike in Jacobson, however, the question implicated by this
bill involves not the right of the individual to refuse
certain medical treatment, but the right of the parent(s) to
refuse that treatment on behalf of the child. Whereas
competent adults can make even the most reckless of decisions
when it comes to their own health care, the same cannot be
said of parents or guardians making health care decisions for
children. Accordingly, in many instances, the Supreme Court
has recognized the authority of the state to step into the
family sphere, under the states' inherent parens patriae power
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to protect the health of children and other vulnerable members
of society who are legally unable to act on their own behalf.
(See discussion below for more.)
c. Parental rights
It is well established by U.S. Supreme Court precedent that
the federal Constitution prohibits any state or local
government from "depriving any person of life, liberty, or
property without due process of the law." (U.S. Const., 14th
Amend., Sec. 1.) The Supreme Court has interpreted the due
process clause as "a promise of the Constitution that there is
a realm of personal liberty which the government may not
enter," including the right of parents to direct the
upbringing of their children. (Planned Parenthood v. Casey
(1992) 505 U.S. 833, 847; see also Truxel v. Granville (2000)
530 U.S. 57, 65: "We have long recognized that the Amendment's
Due Process Clause . . . 'guarantees more than fair process.'
[Citation omitted.] The Clause also includes a substantive
component that 'provides heightened protection against
government interference with certain fundamental rights and
liberty interests.'") As stated by the Court, "the interest
of parents in the care, custody, and control of their children
. . . is perhaps the oldest of the fundamental liberty
interests." (Truxel, 530 U.S. at 65).)
The Supreme Court first recognized family autonomy and the
right of parents to control the upbringing of their children
using substantive due process in the 1923 case of Meyer v.
Nebraska (1923) 262 U.S. 390. That case declared
unconstitutional a state law that prohibited teaching in any
language other than English in public schools. Two years
later, the Court reaffirmed this principle, holding
unconstitutional a state law that required children to attend
public schools. (Pierce v. Society of Sisters (1925) 268 U.S.
510; see also Chemerinsky, Constitutional Law Principles and
Policies (2011) 4th Edition, p. 829.) And while the Court has
given great deference to parents in weighing the competing
claims of parents and of the state on behalf of children in
other cases such as Wisconsin v. Yoder (1972) 406 U.S. 205
(holding that Amish parents had a constitutional right based
on their right to control the upbringing of their children and
based on free exercise of religion, to exempt their 14- and
15-year old children from compulsory school attendance law),
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such deference is not limitless. In fact, some scholars
believe that in both Yoder and another case involving the
procedural due process rights of children when parents seek to
have them committed, the Court undervalued the importance of
ensuring the children's education and protecting against
unneeded institutionalism (which is a massive curtailment of
liberty). (See Chemerinsky at pp. 830-831.)
Of specific relevance to this bill, in Prince v. Massachusetts
(1944) 321 U.S. 158, 166, the Court recognized that this right
to make parental decisions regarding the care and upbringing
of the child is not absolute, and can be interfered with if
necessary to protect a child:
It is cardinal with us that the custody, care and nurture
of the child reside first in the parents, whose primary
function and freedom include preparation for obligations
the state can neither supply nor hinder. Pierce v. Society
of Sisters [(1925) 268 U.S. 510]. And it is in recognition
of this that these decisions have respected the private
realm of family life which the state cannot enter.
But the family itself is not beyond regulation in the
public interest, as against a claim of religious liberty.
Reynolds v. United States, 98 U.S. 145; Davis v. Beason,
133 U.S. 333. And neither rights of religion nor rights of
parenthood are beyond limitation. Acting to guard the
general interest in youth's well being, the state as parens
patriae may restrict the parent's control by requiring
school attendance, regulating or prohibiting the child's
labor, and in many other ways. Its authority is not
nullified merely because the parent grounds his claim to
control the child's course of conduct on religion or
conscience. Thus, he cannot claim freedom from compulsory
vaccination for the child more than for himself on
religious grounds. The right to practice religion freely
does not include liberty to expose the community or the
child to communicable disease or the latter to ill health
or death. People v. Pierson, 176 N. Y. 201, 68 N. E. 243.
(Id. at 166-167, (internal footnotes omitted).) (See
Comment 3 below for more discussion on the issue of
religious exemptions.)
As reflected in Prince, states have already encroached upon
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the family sphere by creating compulsory education laws, and
child labor laws, which are largely accepted today, despite
objections about the rights of parents to make these choices
for their children regarding their schooling and work when
those laws were first enacted.
Similarly, while this bill may be viewed as an
unconstitutional encroachment of parental rights by some, it
could arguably be viewed as a valid exercise of its police
powers and the power of the state to intervene, under the
parens patriae doctrine, on behalf of children to ensure that
all children in public and private schools (and similar
institutions, such as child care centers) maintain adequately
high levels of immunization. Staff notes that without the
recent broadening of the homeschooling exemption and the
addition of the independent study option, many parents might
not have been able to feasibly exercise any choice, due to the
combination of financial constraints and compulsory education
laws.
Thus, stated in another way, insofar as police powers must
still be "reasonable" regulations, in order to be
constitutional, this bill must strike a reasonable balance
that furthers public health and safety without unduly
encroaching on the private family sphere. Again, such
balancing is important because even fundamental rights are not
absolute; they do not, in other words, operate as "on/off"
switches. Nor do state interests, for that matter. Instead,
as one slides up, the other slides down; at some point, the
right outweighs the state interest and at another point the
state interest outweighs the right. Further, if the courts
were to apply strict scrutiny to the bill (as it generally
does with laws that impinge upon fundamental rights), the bill
would survive if it is found to serve a compelling state
interest (to ensure that the school and community vaccination
levels overall remain sufficiently high) but at the same time
is narrowly tailored to that purpose ( it neither requires
compulsory vaccination where children might have a medical
condition that makes vaccination unsafe for that child, nor
when children would otherwise be homeschooled or enrolled in
independent study programs).
d. Fundamental interest in education under state law
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While under the federal constitution, the U.S. Supreme Court
has declined to find a fundamental right in education (see San
Antonio Independent School District v. Rodriguez (1973) 411
U.S. 1), pursuant to a state Supreme Court decision, education
is recognized as a fundamental right in California, fully
protected and guaranteed under the California Constitution.
Accordingly, the state must therefore provide children equal
access to education subject to the equal protection clause of
the state constitution. That being said, as much as education
is a fundamental right under California law, it is also a
requirement. California's compulsory education laws require
that children between six and 18 years of age to attend
school, with a limited number of specified exceptions. (See
Educ. Code Sec. 48200 et seq.; exceptions exist, for example,
for children attending private schools; child being tutored by
person with state credential for grade being taught; children
holding work permits (subject to compulsory part-time
classes); among other things).
For individuals on both sides of this larger debate, the bill
implicates questions as to the fundamental interests of
children, both vaccinated and unvaccinated alike, in
education. While parents against vaccination would be forced
to choose whether to vaccinate their child and send them to
public or private school, or not vaccinate their child and
exercise the home school or independent study option, parents
who fear their child might be placed at an increased risk of
harm as a result of being surrounded by unvaccinated children
in a fairly confined environment, five days a week, must make
a similar choice under existing law.
The American Civil Liberties Union (ACLU) writes a letter of
concern, indicating that while it understands "the legitimate
concerns that underlie the bill, and the potential harms of
highly contagious diseases that present serious public health
risks if 'herd immunity' levels are not reached or sustained"
and appreciates "that vaccination against childhood diseases
is a prudent step that should be promoted for the general
welfare," the ACLU "does not believe there has been a
sufficient showing of need at present to warrant conditioning
access to education on mandatory vaccination for each of the
diseases covered by this bill for every school district in the
state." The ACLU further cautions that "[u]nlike other
states, public education is a fundamental right under the
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California Constitution. (Serrano v. Priest, 5 Cal.3d 584
(1971)["Serrano I"]; Serrano v. Priest, 18 Cal.3d 728
(1976)["Serrano II"].) Equal access to education must
therefore not be limited or denied unless the State
demonstrates that its actions are 'necessary to achieve a
compelling state interest.' [Serrano, 18 Cal.3d at 768.]" To
this end, ACLU recommends that if there is, in fact, a
compelling governmental interest in mandating that students in
every school be vaccinated against each of the enumerated
diseases except for medical reasons, "the bill should be
amended to explain specifically what that interest is, where
it exists, and under what conditions and circumstances it
exists."
Staff notes, first, that this letter pre-dates the most recent
amendments to expand the homeschooling exemption and add an
exemption for children enrolled in independent study programs.
Second, assuming that the ACLU maintains its concerns with
respect to the current version of the bill, while education is
indeed recognized as a fundamental interest in California
fully protected and guaranteed under the state Constitution
pursuant to Serrano,<1> and the state must therefore provide
access to children equally to education subject to the equal
--------------------------
<1> As stated by the Serrano I court: "We are convinced that the
distinctive and priceless function of education in our society
warrants, indeed compels, our treating it as a 'fundamental
interest.' In dicta, the court relied in part on the recognition
of the California Constitution, which states in Article IX,
section 1: "A general diffusion of knowledge and intelligence
being essential to the preservation of the rights and liberties
of the people, the Legislature shall encourage by all suitable
means the promotion of intellectual, scientific, moral, and
agricultural improvement." (Id. at 608.) Note that the Court
in "Serrano II" recognized that the majority of the U.S. Supreme
Court in cases subsequent to Serrano I, did not find a
fundamental right to education protected, either implicitly or
explicitly, under the Equal Protection Clause of the 14th
Amendment to the U.S. Constitution; instead the "interest of
children in education was explicitly and implicitly protected
and guaranteed by the terms of California Constitution" - the
state constitution's equal protection provisions under Article
IV, sec. 16, and Article I, sec. 7. See Serrano v. Priest 18
Cal.3d. 768, 749-750 (including footnotes 19, 20), citing San
Antonio School District v. Rodriguez (1973) 411 U.S. 1.
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protection clause of the federal and state constitutions, the
bill does not facially discriminate against a suspect class.
As stated by the Serrano court, in the case of legislation
involving "suspect classifications," or touching on
"fundamental interests," judicial review under the equal
protection clause "requires active and critical analysis,
subjecting the classification to strict scrutiny." (Id. at
597.) Specifically, "[u]nder the strict standard applied in
such cases, the state bears the burden of establishing not
only that it has a compelling interest that justifies the law
but also that the distinctions drawn by the law are necessary
to further its purpose." (Id. at 597 (internal citations
omitted, emphases in original).)
The intent of the bill for all intents and purposes appears to
be to protect the health and safety of the public by
preventing the spread of communicable diseases that can have
devastating, if not potentially fatal effects. At the same
time, the bill seeks to provide children with access to
education even if their parents elect to not vaccinate them,
by way of homeschooling or independent study programs.
Opponents argue (see Comment 5 for more) that most parents
neither have the economic resources to leave gainful
employment, nor the academic acumen to teach in the home,
"rendering the application of SB 277 particularly punitive for
all those not in the highest income brackets." Many of the
opponents raise concerns regarding the lack of options that
are appropriate for children with exceptional needs or
disabilities. To block unvaccinated children from a free,
adequate, public education from the viewpoint of the
opposition, is discriminatory and in violation of their
rights.
As argued by the author, "California public school students
have a right to education in California, but also that their
schools be clean, safe, and functional. A safe school for many
children is a school with a high level of community immunity
which would protect them from known diseases. This legislation
provides the most comprehensive measure to ensure high
vaccination rates- by limiting the presence of those who are
not vaccinated from a campus where children mingle and may be
at risk of exposure to vaccine-preventable diseases. The
students however are not barred from enrolling in a public
education, they may do so, with the curriculum and assistance
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of the school, which allows them this option but strikes the
balance of minimizing the exposure of unvaccinated students to
a school campus."
As currently drafted, it should be also noted that this bill
raises a question as to what happens come January 1, 2016, to
the unvaccinated students who are currently enrolled in a
private or public elementary or secondary school or other
covered institutions pursuant to an existing PBE, if this bill
is signed into law. Potentially, these students can be
brought into compliance pursuant to existing law, Section
120340 of the Health and Safety Code, which provides that a
person who has not been fully immunized against one or more of
the diseases may be admitted by the governing authority on
condition that within time periods designated by regulation of
the department he or she presents evidence that he or she has
been fully immunized against all of these diseases. The
author states:
Vaccination requirements under SB 277 should apply to
students whose first enrollment in one of the mandated
settings or whose 7th grade enrollment is after January 1,
2016. The bill will require some additional clarification,
which we are committed to including.
3.Repeal of statutory personal belief exemption effectively
repeals any possible religious exemptions
As noted in Comment 2 above, California is one of 20 states that
provide a "philosophical" exemption to its mandatory vaccination
law for school age children. All but two states also provide a
religious exemption. Most of those states do so separately from
the philosophical exemption, whereas some, including California,
Minnesota and Louisiana, do not explicitly recognize religion as
a reason for claiming an exemption, though it is recognized
that, as a practical matter, the non-medical exemption may
encompass religious beliefs. (See NCSL, States with Religious
and Philosophical Exemptions from School Immunization
Requirements (Mar. 3, 2015)
[as of Apr. 19, 2015].) Accordingly, while
California law does not expressly provide for a religious
exemption, any possible claim of religious exemption that might
be encompassed within the "personal belief" exemption would
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hereinafter be eliminated by the repeal of the statutory
personal belief exemption. While Jacobson v. Massachusetts
(see Comment 2a) suggests that it is a valid exercise of police
powers to prevent the spread of communicable diseases, that case
was decided prior to the application of the First Amendment's
Free Exercise Clause to the states. (See Cantwell v.
Connecticut, 310 U.S. 296, 303, 60 S. Ct. 900, 84 L. Ed. 1213
(1940).)
An objection has been raised by many of the opponents to this
bill that this bill violates the constitutional right to freedom
of religion, relying in part on cases such as Wisconsin v.
Yoder. (See Comment 2c above.) The authors point to the case
of Phillips v. City of New York (2012) 775 F.3d 538 to
illustrate why compulsory vaccination laws are valid, even
without a religious exemption. In that case, the Second Circuit
Court of Appeal held that New York could constitutionally
require that all children be vaccinated to attend public school
and that the New York law actually "goes beyond what the
Constitution requires by allowing an exemption for parents with
genuine and sincere religious beliefs," citing the U.S. Supreme
Court decision in Prince v. Massachusetts, where the Supreme
Court held that "the right to practice religion freely does not
include liberty to expose the community or the child to
communicable disease or the latter to ill health or death."
(Id. at 533.)
Additionally, whereas under pre-1990 Supreme Court precedents,
government actions burdening religions would only be upheld if
they were necessary to achieve a compelling governmental
purpose, in 1990, the Court held in Employment Div., Dept. of
Human Resources of Oregon v. Smith (1990) 474 U.S. 772, that the
free exercise clause cannot be used to challenge neutral laws of
general applicability. In that case, the Oregon law prohibiting
the consumption of peyote, a hallucinogenic substance, was
deemed neutral because it was not motivated by a desire to
interfere with religion and it was a law of general
applicability because it applied to everyone. Thus, as
interpreted in more recent Supreme Court cases, Smith "largely
repudiated the method of analysis used in prior free exercise
cases like Wisconsin v. Yoder [internal citation omitted] and
Sherbert v. Verner [(1963) 374 U.S. 398]" where the Court
"employed a balancing test that considered whether a challenged
government action that substantially burdened the exercise of
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religion was necessary to further a compelling state interest."
(Holt v. Hobbs (2015) 135 S. Ct. 853, 859; see also Burwell v.
Hobby Lobby Inc. (2014) 134 S.Ct. 2751, 2760.) While Congress
has taken actions to supersede Smith, as reflected in cases such
as Hobby Lobby, and thereby ensure that strict scrutiny is
applied when the law substantially burdens religion, those later
decisions appear based on federal law, the Religious Freedom
Restoration Act, to which California has no counterpart.
Staff notes that in Mississippi, one of the two states that does
not provide for either a philosophical or religious exemption to
its compulsory vaccine law, the Supreme Court of that state has
held that, "requiring immunization against certain crippling and
deadly diseases particularly dangerous to children before they
may be admitted to school serves an override and compelling
public interest, and that such interest extends to the exclusion
of a child until such immunization has been effected, not only
as a protection of that child but as a protection of the large
number of other children comprising the school community and
with whom he will be in daily close contact in the school room."
(Brown v. Stone (1979) 378 So.2d 218, 222.) In discussing
parental rights and duties, the court warned that "[i]t must not
be forgotten that a child is indeed himself an individual,
although under certain disabilities until majority, with rights
in his own person which must be respected and may be enforced.
Where its safety, morals, and health are involved, it becomes a
legitimate concern of the state. [ . . . ] To the extent that
[the compelling public purpose of the state law] may conflict
with the religious beliefs of a parent, however sincerely,
entertained, the interests of the school children must prevail."
(Id. at 222-223.) Accordingly, the court upheld Mississippi's
statute mandating vaccination before entry into school as a
reasonable and constitutional exercise of its police power, but
struck down the statute's religious exemption. The court wrote
that to give effect to the religious exception, "which would
provide for the exemption of children of parents whose religious
beliefs conflict with the immunization requirements, would
discriminate against the great majority of children who have no
such religious conviction" in violation of the 14th Amendment's
Equal Protection Clause, "in that it would require the great
body of school children to be vaccinated and at the same time
expose them to the hazard of associating in school with children
exempted under the religious exemption who had not been
immunized as required by the statute" (Id. at 223.)
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4.Amendment to further narrow the bill to the compelling state
interest
As noted above, given the above constitutional issues, it is
important that the bill be narrowly tailored to a compelling
state interest in the event that reviewing courts apply strict
scrutiny in light of the rights that could be potentially
impinged upon by this bill. Despite the recent amendments,
there is an argument that the bill is too broad with respect to
the "catch all" type provision ("paragraph 11") that would
require that the child be immunized against "any other disease
deemed appropriate by the California Department of Public
Health, taking into consideration the recommendations of the
Advisory Committee on Immunization Practices of the U.S. DHHS,
the American Academy of Pediatrics, and the American Academy of
Family Physicians" before being granted unconditional entry into
schools, day care centers, or developmental centers. (Health &
Saf. Code Sec. 120335(b)(11).) In other words, paragraph 11 has
the potential to dramatically expand the scope of the bill and
disrupts the careful balancing of the various rights involved,
as discussed above. Accordingly, the following amendment would
be suggested to maintain the status quo policy decision made in
allowing for this 11th category of vaccines, but limit the bill
to only those 10 listed vaccines currently reflected in the
Health and Safety Code.
Suggested amendment :
Add a new provision to the Health and Safety Code, following
Section 120335, that provides: "Notwithstanding Section 120325
and Section 120335, any immunizations required for diseases
added pursuant to paragraph 11 of subdivision (a) of Section
120325 or paragraph 11 of subdivision (b) of Section 120335,
may only be mandated prior to a pupil's first admission to any
private or public elementary or secondary school, child care
center, day nursery, nursery school, family day care home, or
development center, if exemptions are allowed for both medical
reasons and personal beliefs.
Some opponents have raised questions as to whether the bill is
actually "narrowly tailored" if the issue of public health could
be addressed by mandating vaccines on a community by community
or school district or school district basis. (See Comment 7 for
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example). In response, the authors assert that a statewide
approach is the correct approach because:
[t]his legislation aims to prevent outbreaks, and pockets of
unimmunized individuals may appear at any district at any
time. To provide a statewide standard, allows for a consistent
policy that can be publicized in a uniform manner, so
districts and educational efforts may be enacted with best
practices for each district. While pockets cluster in
regionalized area, districts may have one school which does
not reach community immunity, and therefore should have a
policy which they can easily implement. Further in
consultation with various health officers, they believe a
statewide policy provides them the tools to protect all
children equally from an outbreak.
5.Opposition
Staff notes that the Committee received thousands of letters on
this bill. To the extent possible, the following summary seeks
to summarize the arguments made in the letters.
Families for Early Autism Treatment (FEAT) writes that "the
denial of an effective, appropriate education is damage that
cannot be mitigated. The denial of childcare to families will
result in economic hardship that will not be overcome by most,
and will create segregation based upon a characteristic of an
individual's private health record." FEAT urges this Committee
to consider that: a free public education is a fundamental right
provided in the State Constitution; the equal protection clause
further upholds a fundamental right to freedom from the threat
of bias or discriminatory consequence imposed by government; the
right to exercise the free expression of religion and core
beliefs is protected by both the State and U.S. Constitutions.
FEAT believes that because of these issues, "California Parents
are soundly protected to make personal beliefs decisions for
vaccinations."
FEAT argues (and other opponents similarly assert) that the
majority of parents do not have economic resources to leave
gainful employment nor do they possess the academic acumen to
teach in the home rendering the application of SB 277
particularly punitive for all those not in the highest income
brackets. FEAT also argues, among other things, that
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independent study under the direction of the public school is
voluntary. Specifically, individuals with exceptional needs (as
defined under the Education Code to mean a child with a
disability as defined under federal law whose impairment
requires instruction and services which cannot be provided with
modification of the regular school program in order to ensure
that the individual is provided a free appropriate public
education, as specified, and who comes within one of specified
age categories, including between the ages of five and 18 years,
inclusive) may only participate when indicated in the student's
individualized education program.
FEAT raises a host of other arguments that relate to: informed
consent and the availability of medical exemptions; religious
discrimination; least restrictive environments for those with
special needs required under the Education Code and the Federal
I.D.E.A. [Individuals with Disabilities Education Act]; the
Developmental Disabilities Assistance and Bill of Rights Act of
2000; Welfare and Institutions Code, the Lanterman Act's maximal
participation and choice requirements for medical, community,
and education services from agencies receiving state funds; home
based education misconceptions; absence of public funding of
education for student who is excluded or dis-enrolled from
school; and issues surrounding necessary approvals to access
home-based education.
Homeschool Association of California (HSC) opposes this bill
because it "would negatively impact the freedom to homeschool in
the state of California and would make it impossible for many
families to choose to homeschool legally." (Emphasis in
original.) HSC comments that while private tutoring is a third
legal option, the tutor must hold a currently valid state
teaching credential for the grades and subjects taught under
California law and hiring such tutors would be very expensive
and most parents do not hold such credentials. Thus, "telling
families whose children have not been fully vaccinated on
schedule that they can homeschool using the tutoring option is
not meaningful or realistic." Additionally, HSC contends that
the choice of "vaccinate or homeschool" is not true because the
bill "prohibits children from attending any private or public
school, even if the child spends most education time in the
family home."
Innumerable letters from individuals write to raise relatively
similar points regarding various constitutional rights, inform
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consent, vaccine safety/injuries, absence of a health crisis,
lack of real choice for parents/inadequacy of the current
exemptions in the bill, and the like. One such letter reflects
the following:
AB 2109 from 2012 is working and that there has already been a
20 percent decline in PBEs, thereby eliminating the need for
sweeping legislation that removes a parent's right to informed
consent.
The California Constitution states that a free public
education is a right for all children. Even children who are
positive for HIV or Hepatitis B are allowed to attend public
school. Denying a child this right based upon vaccination
status is discriminatory and unconstitutional, adding that
there will be social ramifications if vaccinated and
under/unvaccinated children are forced to be segregated.
This bill removes freedom of religion as well as parental
rights as they cannot afford to homeschool their children and
would otherwise be forced to submit their child to medical
procedures with risks or leave the state.
California vaccination rates are high-higher than the national
average for each disease listed on the CDC schedule.
The U.S. Supreme Court has recognized that vaccines are
"unavoidably unsafe," citing the case of Bruescewitz v. Wyeth
LLC (2011) 131 S.Ct. 1068.
Parents should have the right to determine for themselves what
substances are injected into their child's body without giving
up their children's right to a free public education.
Any law that compels the public "to use a pharmaceutical
product which carries an unpredictable risk of injury/death
for a minority of vulnerable individuals is not humane."
Californians for Medical Freedom-Tahoe, raises similar points,
also arguing that the bill removes federally mandated rights of
services to students with disabilities under the federal IDEA.
This group, like many others, points to the National Childhood
Vaccine Injury Act (NVIC) and the fact that the U.S. government
"has paid out more than $3 billion to the victims of vaccine
injury" as support for why medical choice is appropriate. "If
there is risk of injury or death there must be a choice." In
contrast, they argue that "[v]accination rates of California
schoolchildren are high at 98.64 [percent]" and cite the success
of recent legislation, AB 2109, which they write has resulted
"in a 19 [percent] decrease in exemptions amongst
kindergarteners in just one year. The public health concern,"
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they write, "is already adequately addressed with current
California laws." In other words, as stated by the California
Chiropractic Association, "SB 277 is a solution in search of a
problem."
Educate.Advocate. raises many similar points and adds that PBEs
"DO NOT represent the number of unvaccinated individuals in the
state. A PBE must be obtained for any child who misses one dose
of a vaccine or is on a staggered vaccine schedule. The state
does not keep track of this information; it treats all PBE's
equally." Educate.Advocate. writes that the children served by
their organization are all in special education and on an
individualized education plan. "Many of these children also
have pre-existing medical conditions (mitochondrial dysfunction,
compromised immune system) making it impossible to vaccinate
them without hurting them further. Obtaining a medical
exemption is very difficult to receive as the CDC's pink book
guidelines are incredibly narrow and trump patient and doctor
reasons. [ . . . ] The only option for these children has been
the personal belief exemption. Stripping families such as these
of the right to get a personal belief exemption is
discriminatory and in violation of the Americans with
Disabilities Act."
ParentalRights.Org writes in opposition that "[w]hile we
appreciate the intent of the amendment to exempt homeschoolers
from the vaccination requirement, it is not sufficient to
protect the rights of parents and children in California. While
there are many parents with strong convictions that the risks of
vaccines to their child (as reflected in lengthy disclaimers
which accompany these products) outweigh the potential benefits,
many of these same parents are also deeply convinced that the
best educational opportunity they can provide their child is in
the public schools. These parents should not be forced to give
up their rights in one area to exercise their rights in another.
No child should have to forego the best available education for
the sake of his best health, nor give up his best health for the
sake of a better education."
1.Oppose unless amended
The California Naturopathic Doctors Association (CNDA) states
that it supports immunization for the prevention of disease and
the public health objective of achieving high rates of immunity
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to infectious disease but opposes this bill unless it is amended
to include Naturopathic Doctors as providers who can sign
medical waivers for vaccination. CNDA argues that as licensed
primary care doctors who can diagnose medical conditions such as
anaphylaxis and immunodeficiency, reasons outlined in the CDC's
list of contraindications to common pediatric vaccinations,
naturopathic doctors must also be able to sign medical waivers
for vaccination, when such medical conditions exist.
2.Concerns
A San Lorenzo Valley Unified School District (SLVUSD)
superintendent writes a letter of concerns, based in large part
on points raised in the Senate Health Committee hearing. Noting
both the ACLU's letter of concern and recent successes of AB
2109 (see Background), SLVUSD comments that "[t]here are some
geographic pockets in the state where PBE rates are higher than
average. We understand the concerns this raises, but
alternatives to SB 277, including 'educate and encourage'
efforts could address those concerns." These efforts, they note,
are the focus of the federal government's National Adult
Immunization Plan, as opposed to mandate. SLVUSD also questions
what public health risk these PBE rates represent given that
only 0.7 percent of children nationwide are fully vaccinated and
that most parents request a PBE to "selectively" vaccinate (for
example, choosing to vaccinate against pertussis, tetanus, and
measles but opting out of those they consider unnecessary like
Hepatitis B.) "PBE rates," it writes, "do not equate to a
public health risk for a specific disease. SLVUSD believes the
"educate and encourage" efforts used in conjunction with better
data on actual vaccination opt-out by disease in each area would
be a better legislative solution than statewide mandates.
SLVUSD is concerned about the education options left for
children under SB 277 and the fact that the bill allows parents
to homeschool on their own (private school affidavit)-not
through public or private school satellite programs.
3.Author's technical and clarifying amendments
This bill currently provides that when there is good cause to
believe that a child whose documentary proof of immunization
status does not show proof of immunization against a disease
listed in subdivision (b) of Section 120335 has been exposed to
one of those diseases, that child may be temporarily excluded
SB 277 (Pan and Allen)
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from the school or institution until the local health officer is
satisfied that the child is no longer at risk of developing or
transmitting the disease. The first amendment would clarify
that this temporary exclusion authority applies only if there is
good cause to believe that a student has been exposed to a
disease listed under the mandatory vaccination law and his or
her documentary proof of immunization status does not show proof
of immunization against that specific disease.
The author is also making a second, technical amendment that
would place the homeschooling and independent study exemption
within a separate subdivision to ensure that the exemption also
applies to seventh grade level checks for pertussis.
Author's amendments :
(1) On page 5, strike lines 26-29, inclusive and on line 30
strike "disease," and insert: "(b) When there is good cause
to believe that a child has been exposed to a disease
listed in subdivision (b) of Section 120335 and the child's
documentary proof of immunization status does not show
proof of immunization against that disease,"
(2) On page 4, strike lines 16-20 and on page 5 after line
10, insert: "(f) This section does not apply to a
home-based private school or a pupil who is enrolled in an
independent study program pursuant to Article 5.5
(commencing with Section 51745) of Chapter 5 of Part 28 of
the Education Code."
Support : Alameda County Board of Supervisors; American
Federation of State, County and Municipal Employees (AFSCME)
AFL-CIO; American Academy of Pediatrics; American Lung
Association; American Nurses Association\California; Biocom;
California Academy of Family Physicians (CAFP); California
Association of Nurse Practitioners (CANP); CAPG; California
Chapter of the American College of Emergency Physicians
(California ACEP); California Children's Hospital Association;
California Coverage and Health Initiatives; California Health
Care Institute; California Health Executives Association of
California (CHEAC); California Hepatitis Alliance (CalHEP);
California Immunization Coalition; California Hospital
Association; California Medical Association; California School
SB 277 (Pan and Allen)
PageE of?
Nurses Association; California Pharmacists Association;
California Optometric Association; California Primary Care
Association; California School Boards Association (CSBA);
California School Employees Association (CSEA); California
School Nurses Organization; California State Association of
Counties (CSAC); California State PTA; Child Care Law Center;
Children Now; Children's Defense Fund-California; Children's
Specialty Care Coalition; City of Beverly Hills; City of
Pasadena; County Health Executives Association of California;
County of Los Angeles; County of Santa Clara Board of
Supervisors; County of Santa Cruz Board of Supervisors; County
of Yolo Board of Supervisors; First 5 Association of California;
Health Officers Association of California; Kaiser Permanente;
Insurance Commissioner Dave Jones; Kaiser Permanente; Los
Angeles County Board of Supervisors; March of Dimes California
Chapter; Marin County Board of Supervisors (support if amended);
National Coalition of Black Women; Osteopathic Physicians and
Surgeons of California (OPSC); Providence Health and Services
Southern California; Reed Union School District; San Dieguito
Unified School District; San Francisco Unified School District;
Secular Coalition for California; Silicon Valley Leadership
Group; Solana Beach School District; The Children's Partnership;
UAW Local 5810; numerous individuals
Opposition : Alder Grove Charter School - Director; American
Civil Liberties Union (concern); Association of American
Physicians & Surgeons; Association of Personalized Learning
Schools & Services (APLUS); AWAKE California; California
Chiropractic Association; California Coalition for Health
Choice; California Coalition for Health Choice, the Central
Valley and Central Sierra Chapters; California Naturopathic
Doctors Association (oppose unless amended); California Nurses
for Ethical Standards; California ProLife Council; California
Right to Life Committee, Inc.; Californians for Freedom of
Choice; Californians for Medical Freedom- Tahoe; Canary Party;
Capitol Resource Institute; Children's Healthcare is a Legal
Duty, Inc. (CHILD); Connecting Waters Charter School; Educate.
Advocate.; Families for Early Autism Treatment (FEAT);
Homeschool Association of California; Libertarian Party of
Sacramento County; National Autism Association of California;
National Vaccine Information Center; Our Kids, Our Choice
(OKOC); Pacific Justice Institute Center for Public Policy;
ParentalRights.Org; Plumas Charter School's Executive Director;
Pro-Parental Rights; Safe Minds; Saint Andrew Orthodox Christian
SB 277 (Pan and Allen)
PageF of?
Church - Pastor; San Lorenzo Valley Unified School District -
Superintendent (concerns); UnblindMyMind; Vaccine-Injury
Awareness League; numerous individuals
HISTORY
Source : Vaccinate California
Related Pending Legislation : SB 792 (Mendoza) would prohibit a
person from being employed at a day care center or day care home
unless he or she has been immunized against influenza,
pertussis, and measles.
Prior Legislation :
AB 2109 (Pan, Ch. 821, Stats. 2012) See Background.
Prior Vote :
Senate Education Committee (Ayes 7, Noes 2)
Senate Health Committee: (Ayes 6, Noes 2)
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