May 12, 2015
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 email@example.com or at (212) 998-6212 if I can be of any assistance.
Mary S. Holland