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Legal Scholar Mary Holland: Letter to CA Senators Re Vaccination Bill SB277

NYU Law


Senators on the Judiciary Committee
California State Senate
State Capitol, Room 2032
Sacramento, CA 95814

                                                                                                            May 12, 2015

Dear Senators:

Thank you for having given me the opportunity to address the California Senate Judiciary Committee on April 28, 2015 regarding Senate Bill 277 to restrict childhood vaccination exemptions to medical ones alone.  I promised to revert to you regarding California law on informed consent; I do so now, and seek to clarify my comments regarding enforcement, should SB 277 become law.

California law fully embraces the doctrine of informed consent to medical decision-making. The California Supreme Court has upheld the doctrine of informed consent and the right to refuse nonconsensual invasions of bodily integrity in Thor v. Superior Court, 5 Cal. 4th 725 (1993). There, the unanimous Court reviewed the federal common law and California precedents on bodily integrity and self-determination, noting, “we respect human dignity by granting individuals the freedom to make choices in accordance with their own values.” Id. at 737.  Thor regards the right of a prisoner to refuse life-sustaining treatment.  The Court notes that there are countervailing considerations in determining the scope of autonomy, including protecting innocent third parties. Id. at 738.  In that case, however, the Court found no compelling countervailing reasons and required that the prison respect the inmate’s desire to refuse medical treatment.  Many courts have cited the case with approval since. 

While there are no California precedents specifically on informed consent and vaccination, there is a provision in the California Code of Regulations regarding informed consent and medical interventions for children in juvenile detention.  Under 15 CCR § 4733, even wards of the state must be provided consent “for all medical or dental treatment.” The section states “informed consent is defined as consent which is obtained without duress or coercion and which clearly and explicitly manifests consent to the proposed medication, treatment or procedure in writing.” 

If SB 277 becomes law, parents will not have the ability to consent to vaccination without coercion. As so many parents testified at the hearing, medical exemptions are not available for most families, including those with serious contraindications to vaccination, and homeschooling is an illusory option, especially for those of limited means.  Indeed, the intent of SB 277 would seem to be precisely to coerce parents into vaccinating according to the state vaccine schedule, under the banner of paternalism.  While protection of other schoolchildren from infectious disease outbreaks is unquestionably an important consideration regarding SB 277, the state has at its disposal the ability to suspend unvaccinated children during outbreaks. 

This has worked for decades, and the state did not even choose to employ it during the much-publicized Disneyland measles outbreak.  In a legal challenge, the state would be required to prove that the consideration of other schoolchildren requires the exclusion of those with exemptions.  Dr. Tetyana Obukhanych’s analysis, attached, explains clearly why such

exclusion of healthy children is unnecessary and irrationally discriminatory outside the context of disease outbreaks.

Despite coercion, a substantial percentage of the parents of the estimated 225,000 children with exemptions in California out of a total of 6.2 million would likely not vaccinate their children, because to do so would violate their most deeply held religious and conscientious beliefs.  Some will be able to get medical exemptions; others will be able to homeschool; but thousands of families will be unable to do either. 

I asked rhetorically how the state would enforce SB 277, and whether it would engage in forced vaccination or imprisonment of parents.  Unfortunately, neither of these questions is hyperbolic.  “Medical neglect” is a consideration in child removal proceedings, and California’s Department of Children and Family Services has noted that a mother was “behind on [the children’s] immunizations” as one consideration among many in a proceeding to terminate parental rights.  Brenda H. v. Superior Court of Contra Costa County, 2003 WL 21054769.  Similarly, under California Penal Code Section 270.1(a) a parent or guardian of a child six years old or older may be subject to a fine or imprisonment up to a year, or both, if a child is a “chronic truant…[and the parent] has failed to reasonably supervise and encourage the pupil’s school attendance.”  In this context, I believe my questions accurately reflected the concerns of thousands of families who oppose SB 277.

All vaccination decisions, like decisions about all invasive medical procedures, carry the risk of severe injury or death.  Congress acknowledged this risk in its 1986 National Childhood Vaccine Injury Act, 42 U.S.C. §§ 300aa-1 to 300aa-34.  By preserving California’s personal belief exemption, you ensure a modicum of consent for those parents and guardians who cannot vaccinate their children in good conscience.  If the state deprives them of that right, pressuring them into making decisions with potentially permanent consequences without free consent, the state would violate their most basic human rights.

Many peer countries with excellent healthcare outcomes have no vaccination mandates, only recommendations, including the United Kingdom, Canada, Ireland, Australia, Sweden, Germany and Japan.  California should consider these impressive examples.

I deeply appreciate your efforts to craft an ethical and effective law to protect children. Please feel free to contact me at mary.holland@nyu.edu or at (212) 998-6212 if I can be of any assistance.

                                                                                    Sincerely yours,

                                                                                  

                                                                                    Mary S. Holland

 

  Attachment: Letter from Dr. Tetyana Obukhanych, Ph.D

Comments

iris

Hi, we just moved from Canada last summer and i'm very surprised with this Bill and I already used the parents waiver. as I'm knew to the system anyone knows how fast will this bill become a law? in a month , in 3 months? how fast does it go?

thanks in advance
Ri

Linda1

You know when you're a kid in school and the teacher says that if anyone does something wrong, that not only will that person be punished, but everyone will be punished? Works like a charm.

I'm starting to think that none of these senators should win another election. Get rid of them all. Why? Because even the ones who voted no, apparently didn't work hard enough to make it fail, they weren't convincing enough, they weren't effective in protecting the public from evil. So all of them should be replaced.

IF we still have elections where we can have a say in who sits there, that should be a deterrent to future abuses like SB277.

Laura Hayes

Results from yesterday's (4-14-15) Senate floor vote:

UNOFFICIAL BALLOT
MEASURE: SB 277
AUTHOR: Pan
TOPIC: Public health: vaccinations.
DATE: 05/14/2015
LOCATION: SEN. FLOOR
MOTION: Senate 3rd Reading SB277 Pan Amend by Anderson
(AYES 25. NOES 10.) (PASS)


AYES
****

Allen Beall Block De León
Galgiani Hall Hancock Hernandez
Hertzberg Hill Hueso Jackson
Lara Leno Leyva Liu
McGuire Mendoza Mitchell Monning
Pan Pavley Roth Wieckowski
Wolk


NOES
****

Anderson Bates Fuller Gaines
Moorlach Morrell Nielsen Runner
Stone Vidak


NO VOTE RECORDED
****************

Berryhill Cannella Huff Nguyen
Vacancy

So much for light it up blue

Yes Barry, names should be named.

4Bobby

Thank you so very much for your dedication to this issue.
We are so grateful to you.

Barry

About 10 minutes ago SB#277 passed the California Senate with a vote of 25-Yes, 10-No.

*********

What are the names of the 25 sociopaths who voted yes??

Silvana Appleman

Thank you for following up.It was shameful and terrible that you got shut down in the committee. They could have learned a lot from you of course. But it's obvious that they didnt need to as their minds were already made up. Please keep fighting.

Birgit Calhoun

What i am worried about is the complete negation of the possibility that vaccines might contain multiple toxic substances. What if our government presumes that it is for the good of all and then finds adjuvants that are not even remotely related to the functioning of an individual vaccine.

How about? It's for the good of all to not be depressed. Therefore there will be a vaccine against that. Parents will never know the difference. As long as it's called a vaccine, it must be given. And how about a mind-control vaccine on the order of "Manchurian Candidate." Am I too far out of touch. The mind can wander into all kinds of directions as long as it's called a vaccine.

What also concerns me is that people will be forced to visit a doctor if they want to opt out, and only the wealthy will be able to find a willing doctor to absolve the mother from an early vaccination routine.

Mind you, I am not against vaccines. I am primarily against the lack of informed consent. The information nowadays given along with a shot is woefully inadequate, and it will turn off those people who, like me, are wanting to be protected against rabies and polio, and rubella and measles and whooping cough.

I prefer my flu virus first hand through a handshake, and I think mumps can be suffered through. I want to be protected against tetanus when I have stepped on a nail. I don't want to get protected against a non-existent diptheria epidemic.

I want my immune system to primarily fight it's own battles. It makes it stronger because the system has to fight for real. Why fight a weakened vaccine when you can have a good fight and fight it only once rather than in future times have to fight it over and over again.

Lissa

Are we suddenly in North Korea? Outrageous!!

Wake Up America

First our children were silenced by toxins.
Then the witnesses to this travesty were silenced by the press.
Finally we have all been silenced by our legislature.

A sad, terrifying day in America.

The emperor of herd immunity and safe vaccination has no clothes, but legislator after legislator refused to listen to the testimony of those of us who found this out the hard way.

When Vietnam protests started, people thought that the threat of communism was worn the collateral damage of so very many soldiers. And now they thing the threat of disease is worth the collateral damage of our children. The only difference is most of the vaccine injury victims don't come home in body bags, they are instead silenced and disabled for life.

There has to be something we can do. Please God tell us what we can do and how we can reach these people. VACCINE INJURY SILENCING is the Canary in the Coal Mine. What grievous lies will our people accept next?

Tim Lundeen

The bill passed the Senate, but still has to get through the Assembly and then be signed by Gov Jerry Brown to become law. If all this happens that it will be litigated, and very likely an injunction will be issued pending resolution of the court cases. So still an excellent chance that it will not become law.

But, the CA senators who voted for it don't seem to be able to hear anything: not their constituents, not the polls showing a majority are against vaccine mandates, not the science, not the law.

Mary, I want to say thanks, too, for all you do.

Chris

SB 277 Is just the first step! Now that Obamacare is the law of the land, it would only be natural for the powers that be to track our every medical procedure through Epic!

New Federal Vaccine Mandate Proposed: All Shots Required, No Parental Exemptions - See more at: http://healthimpactnews.com/2015/new-federal-vaccine-mandate-proposed-all-shots-required-no-parental-exemptions/#sthash.tHTPYMQu.dpuf

Jeannette Bishop

The most recent bill amendment online:

http://leginfo.ca.gov/pub/15-16/bill/sen/sb_0251-0300/sb_277_bill_20150507_amended_sen_v95.htm

I'm not certain this is the same version voted on today.

patricia

Correction. The countries who do not mandate are at the end of Mary's letter.

patricia

If vaccinations became mandatory all over the US (??) does that then apply to all and any visitors from countries around the globe? Note the countries that only recommend not insist in Dr Tetyana's attached letter.

kapoore

I'm devastated this passed and I'm not sure what is going to happen to the 225,000 unvaccinated children in California. Maybe they'll have to move to Oregon. How many vaccinations fall under the mandate? Does anyone know? At one point they had gotten the vaccines down to about ten. One strategy might be to skip all the infant vaccinations and just concentrate on those required for entry into kindergarten. Given this forced vaccination situation any vaccine not absolutely required should not be taken so as to keep the accumulative toxins down.

patricia

I just cannot understand what is going on in the US. That ANY state could pass such a bill is beyond belief. Staggering.

John Stone

Plainly they have very odd ideas about information and they have very odd ideas about consent. If information is only something which is officially approved and not subject to inedependent examination then it is merely dogma. And if you are not allowed to challenge it it is obviously because it does not bear exeamination. And if consent is based on dogma it is already in part coercion. If you have no choice but to consent because of draconian penalties it is obviously not consent in any meaningful sense. Political infantilism is taking over. I gather the Senate have just passed the bill.

David Taylor

It is 1:35 PM EDT. About 10 minutes ago SB#277 passed the California Senate with a vote of 25-Yes, 10-No.

PANDAS Mom

The CA Senate is voting on SB277 this morning!

http://calchannel.granicus.com/MediaPlayer.php?view_id=2&event_id=1631

cmo

Thank you Mary,

Obviously, this is simply an “office revenue enhancement” for the California AAP.

Any chance of even …one of their members… taking the “six month CDC infant vaccines” plus the MMR / plus a two dose mercury flu shot adjusted for their body weight ??? Perhaps this could be made a part of the California vaccine mandate process.

They should have to pay for all these vaccines in full / with cash… a $5 discount if they post their vaccination on Youtube… They would then come back a few months as many of the vaccines do not work very well on the first try….

Those with some Photoshop skills could create what “such a vaccine tray would look like” so the AAP members would not be surprised when they show up to take their own medicine..

PANDAS Mom

Was this letter also sent to the governor?

Mary, so grateful for your time, effort and ability!

victorpavlovic

Georg, I agree, it seems as if there is now plenty of evidence, especially with the whistleblower information, and his testimony should be more than enough to stop them.

patricia

What puzzles me is how did this Doctor Pan imagine he could bring such a bill to senate without checking his legal facts first. Does he in fact already know all of this information that Mary Holland has so concisely laid out, with attachment?
If so whatever route does he think he can successfully go down now? And if he had no knowledge of this information then why not, comes to mind....

Twyla

Thank you so much, Mary!

Louis Conte

Mary: Thank you placing California's insanity in the correct legal context. Louis

Georg Elser

Mary - lets take them to court .
Lets take on Mr Pan in a court of law .
Surely the precedent 1993 allows this to be contested .

John Stone

Before David Gorski invented the soubriquet 'Respectful Insolence' Orwell coined (ironically) the political slogan 'Freedom is Slavery'. Of course Gorski was only insolent while the senators of California are only tyrannical, and make laws which subvert law.

It is evident that coercion over vaccines has been with us in some degree for some time but if you recognise the right of informed consent then you are involved in an absolute contradiction over enforcing vaccine mandates.

These senators are people apparently without wisdom or integrity and they think in terms of polarity: if you are not in favour all vaccines all the time - and every vaccine that will ever be - you are "anti-vaccine" and a "thought criminal". They are grim stupidity personified and to history they will simply look ridiculous: minimal people trying legislate against complex reality. Only the appalling question remains how much human damage will they achieve before their follies are overturned.

Thank you Mary for your tireless defence of logic, truth and decency.

John

Bob Moffitt

God bless Mary .. you continue to be a bright shinning light in an otherwise dark era of the emerging "medical tyranny" that Founding Father Benjamin Rush warned of over two centuries ago.

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