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  









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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  









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          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)
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          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)

                                   **************