Alan Phillips, J.D.
Aug 3, 2011
Colorado is among the growing list of states seeking to increase the number of mandatory vaccines while restricting access to vaccine exemptions. Previous recent efforts have occurred in WA, NY, NJ, CA and NC. (See Articles by Alan Phillips, and Stealth Vaccine Laws Allow Children to Consent to Vaccines.) This matter is of grave concern to all. The Colorado Immunization Workgroup’s proposed religious and personal exemption forms are posted online here.
A request for hearing will bring these immunization proposals before the Colorado Board of Health this fall. Colorado citizens should bring their concerns to the attention of their State Board of Health. All are welcome to use my letter below in full or in part as desired. In the meantime, everyone else should familiarize themselves with these concerns to be prepared to respond quickly when the matter arises in their state, or to argue repeal of statutes and regulations already in place with any of these same concerns.
August 3, 2011
Joni Reynolds, RNC, MSN, Director
Colorado Immunization Program
Colorado Board of Health
RE: CIP Meeting/Agenda Notes May 18, 2011
Draft Religious and Personal Exemption Forms
Dear Director Reynolds:
I’m writing with concerns about the draft religious and personal exemption forms proposed in the May 18, 2011 CIP Meeting/Agenda Notes and posted on the Internet at http://www.cdphe.state.co.us/dc/immunization/BOHMinutesdraftExemptionForm5-18-2011.pdf.
My concerns are itemized below. Please review and respond at your earliest convenience. In the meantime, thank you for your kind consideration.
Alan G. Phillips, Esq.
P.O. Box 3473
Chapel Hill, NC 27515-3473
Draft Religious Exemption Form
The draft religious exemption form raises three primary concerns:
1. First, it includes a line for the signature of a “Religious Leader.” This implies a requirement that religious exemption applicants must be members of an organized religion. However, federal courts have held that requiring membership in an organized religion for the exercise of a vaccine religious exemption violates the U.S. Constitution. For example, Sherr and Levy vs. Northport East-Northport Union Free School DistrictMason v. General Brown Cent. School Dist., 851 F.2d 47, 51 (2nd Cir. 1988) (quoting United States v. Seeger, 380 U.S. 163, 166, 85 S.Ct. 850, 854) held that “it is sufficient if the belief ‘occupies a place in the life of its possessor parallel to that filled by the orthodox belief in God.’” In Lewis v. Sobol, 710 F. Supp. 506, 511 (S.D.N.Y. 1989) (quoting Mason v. General Brown Central School Dist., 851 F.2d 47, 54 (2d Cir. 1988)), the court said that the state must provide “a general exemption for any person who opposes immunization of their child based on a sincerely held religious belief.” The court in Lewis further stated that the fact that the plaintiffs “are not members of an organized religion does not preclude them from protection under the Free Exercise clause if their beliefs are in fact religious,” id. at 512, and awarded parents money damages for the violation to their First Amendment free exercise of religion. Id. at 517. More recently, the court in Farina v. The Board of Education, 116 F. Supp.2d 503, 507 (S.D.N.Y. 2000) (citing Sherr, 672 F.Supp. at 91) stated, with regard to the exercise of a vaccine religious exemption: “The beliefs need not be consistent with the dogma of any organized religion, whether or not the plaintiffs belong to any recognized religious organization.” Finally, the court in McCarthy v. Boozman, 212 F.Supp.2d 945 (W.D.Ark. 2002) said that the state’s religious exemption clause requiring membership in an organized religion with tenets in opposition to the immunization requirements was found to violate the First and Fourteenth Amendments. The only contrary federal court ruling in recent decades came from a Kentucky federal court held in 1976, which held that requiring applicants to be members of an organized religion did not violate the First Amendment, but Kentucky has since revised its religious exemption statute to remove the requirement of membership in an organized religion, in apparent recognition of the overwhelming majority view.
State courts have come to the same conclusion. Vaccine religious exemption laws requiring membership in an organized religion were struck down as unconstitutional in Massachusetts in 1971 (Dalli v. Board of Education, 358 Mass. 753, 267 N.E.2d 219 (1971)) and Maryland in 1982 (Davis v. State, 294 Md. 370, 451 A.2d 107 (1982)).
Given the substantial body of legal precedent cited above, DOH should remove the line for the signature of a Religious Leader, to avoid violating Colorado citizens’ Constitutional rights.
2. The second concern is that the religious exemption form includes a list of “Recommended” vaccines. Since the exemption would only apply to required vaccines, the inclusion of recommended vaccines is misleading and irrelevant, and likely to cause confusion for those applying and those processing the exemption. In addition, it is inappropriate for DOH to use a legal exemption form as an opportunity to promote non-mandatory pharmaceutical products, or to give the appearance of this regardless of DOH’s intent.
3. The third concern with the religious exemption form pertains to the list of “Required” vaccines. First, this list is misleading, as it implies a right to refuse some (but not all) vaccines for religious reasons. However, Colorado’s religious exemption statute (Colo. Rev. Stat. SS 25-4-903) does not provide a “pick and choose” option for the exercise of a religious exemption. Therefore, itemizing required vaccines gives the appearance of DOH inviting good-faith applicants with sincere religious objections to vaccinations to engage in selective vaccine refusal that may result in their loss of the entire right–that DOH is trying to trick good-faith applicants into failing to secure the exemption. For example, good-faith applicants might reasonably object to only those vaccines produced with the use of aborted fetal tissue when seeing itemized vaccines on the list, but then have their exemption rejected when they attempt to do, since the statute does not appear to allow this option. So, absent an explicit statutory right (or case law creating one) and corresponding policy providing the right to refuse some but not all vaccines for religious reasons, this list should be excluded in the final form, as it invites argument, controversy and litigation.
Even more importantly, the list of Required vaccines should be excluded from the vaccine religious exemption form for moral and ethical reasons. When an applicant turns to God, a list of individual vaccines is irrelevant. Furthermore, itemizing required vaccines gives the appearance that DOH is attempting to persuade citizens to violate their religious beliefs, of DOH putting itself between the citizens and God. This is offensive to both those individuals’ beliefs and the free exercise clause of the First Amendment of the United States Constitution. It is unethical to try to persuade citizens to compromise their relationships with God or to impose guilt on them for choosing to follow God in the exercise of a statutory right. While this may not be DOH’s intent, this is clearly the result of the current draft form.
In sum, listing Required vaccines is legally misleading, is irrelevant to a religious exemption, is offensive to citizens’ state and federal religious freedom rights, and implies an inappropriate bias on the part of DOH with regard to a legal right granted state citizens by the state legislature. The state must either offer the exemption free and clear or not at all. DOH cannot add these further qualifications, stated or implied, or use a form intended for the refusal of mandatory vaccines to promotes non-mandatory vaccines. If DOH disagrees with the state legislature’s offering a religious exemption option, it’s argument is with the state legislature, and not with state citizens via impediments in its design of an exemption form.
Tennessee’s Education Department has drafted a Model Form for the exercise of a religious exemption that avoids all of the above concerns. It may serve as a model for Colorado DOH. See http://www.tn.gov/education/schoolhealth/healthservices/doc/ReligiousExemptionFormED-5379.pdf.
Personal Exemption Form
The draft Personal Exemption Form raises several concerns:
1. First, like the religious exemption form, the personal exemption form lists “Recommended” vaccines, which are irrelevant to the exercise of the exemption and therefore misleading. The exemption right concerns only required vaccines, so a form for the exercise of that right should be restricted to address only mandatory vaccines. Listing Recommended vaccines gives the appearance of DOH improperly promoting non-mandatory pharmaceutical products.
2. Next, including the phrase that the exempt person’s not following “the advice of the Physician . . . may endanger the health or life of my child and others” is problematic for three reasons:
a. First, inclusion of the statement is unethical. It amounts to a state reprimand to those who choose to exercise a state right. The state (and DOH) must either offer the exemption or not. It cannot give citizens the right but tell them they are a bad person and scold them for exercising it.
b. There is a legislative presumption that the exercise of a vaccine exemption does not put anyone at significant risk. That is, if exercising a statutory exemption would create a significant health risk, the state legislature would not have enacted the exemption law in the first place. If DOH disagrees, its argument is with the state legislature, and not the good citizens of Colorado. For this reason, DOH’s inclusion of this statement amounts to DOH overstepping its authority, as agencies must act within the constraints of statutory authority.
c. Finally, the assertion is legally and medically false. Legally, it is false because of the legislative presumption discussed above. Additionally, Colorado, like other states, can require exempt children to stay home during a local outbreak, and require immunization of exempt persons during a declared emergency; so, the exercise of a personal exemption will not create a significant health risk for anyone in the future, either (and again, if DOH disagrees, its argument is with the legislature, not the citizens of Colorado in an exemption form). The statement is also false medically, because of the widely accepted herd immunity theory, which states that so long as most people are immunized, all are protected.
In sum, inclusion of the sentence in question is unethical, exceeds agency authority, and is legally and medically false. The sentence in question should therefore be removed from the draft personal exemption form.
3. The next concern is the requirement for a medical professional’s signature. This is problematic for several reasons:
a. First, it unfairly requires those exercising the exemption to spend money to exercise the right, as healthcare professionals will charge for visits in which citizens seek to get the form signed. This is especially unfair to low-income parents. DOH should not impose a financial penalty on citizens who choose to exercise a statutory right. When the state legislature gives citizens a legal option, DOH should not impose its bias by providing a financial penalty or incentive for citizens to choose one right over another.
b. Next, DOH would require citizens to get a lecture from a healthcare professional without any evidence that they are in need of such a lecture as compared to their peers who do not seek the exemption. This raises Constitutional due process and equal protection concerns. Parents are presumed under the 14th Amendment to make decisions in the best interests of their children absent a showing that they are unfit, and no parent can be deemed to be unfit for the proper exercise of a legal right granted by their state legislature. This requirement of a medical professional’s signature, then, amounts to DOH declaring that any parent who wishes to exercise an exemption is unfit with regard to immunization concerns, when by definition due to legislative presumption and Constitutional right they are not. Therefore, inclusion of this line constitutes a violation of parents’ due process rights.
c. Third, despite the underlying noble intent, this requirement promotes conflict. One would not seek to exercise a personal exemption right if they agreed with the majority of physicians about vaccines. So, requiring an interaction of those with opposing views on this emotional controversy, given that medical professionals are all but professionally prohibited from opposing vaccines (they can be ostracized or even lose their jobs for questioning vaccines), will necessarily create substantial, unnecessary conflict, emotional turmoil, and emotional distress, for medical professional and citizens alike.
d. Fourth, by providing the personal exemption option, the state legislature has implicitly acknowledged that parents have the ability and right to make an informed decision to refuse vaccines, that parents are qualified to make that decision independently, and that there may be or is a good-faith reason for refusing vaccines–perhaps because of the reality that vaccines do cause permanent disability and death, and no one can determine the risk for any given individual vaccine recipient. In any event, there is a legislative presumption that citizens may have and act on their good-faith reasons for refusing vaccines. DOH cannot override this statutory presumption and authority by presuming otherwise and requiring these citizens submit to a condescending lecture by a medical professional. If DOH disagrees with the statutory presumption, it must take that up with the legislature, and not the good citizens of Colorado directly through an exemption form.
e. On a more controversial note, but perhaps ultimately the most critical point of all, the requirement for a medical professional’s signature is also misplaced because the majority of medical professionals are, respectfully, ill-equipped to discuss the legitimate, fundamental issues with current vaccination policy and law that have given rise to the enactment of personal exemption laws and citizens’ choice to exercise that right in the first place. That is, such applicant-physician encounters would be an exercise in futility.
For example, most doctors are unaware of the long list of toxic ingredients in vaccines., and ill-equipped to discuss the precise risks they pose for individual patients (indeed, no one knows). Most are unaware that 95% of infectious disease decline actually preceded vaccines, or that the first polio vaccine actually reversed a pre-existing natural decline in polio from about 1950 to 1955–that authorities actually redefined “polio” to exclude coxsackie virus and aseptic meningitis when the vaccine was introduced, thereby ensuring that “polio” decreased on paper, while polio as defined pre-vaccine actually increased substantially for two years. Nor are most medical professionals aware that the CDC and FDA have stated that 90-99% of adverse drug events are never reported, and therefore, doctors’ reassurances about the safety of vaccines are based on profoundly incomplete data–the fact is, no one can say with any certainty whatsoever that vaccines provide a net benefit to society, because the data from which to make such an assessment doesn’t exist. Nor are most medical professionals aware of the recent study that found a direct statistical correlation between the number of vaccines a country administers and infant mortality–that is, the more vaccines a country administers, the higher the country’s infant mortality rate; or that the U.S., the most highly vaccinated country in the world, is ranked a shameful 47th in infant mortality according to the CIA Factbook. They won’t mention to their patients that Poul Thorsen, the researcher the CDC relied on for studies used to refute a vaccine-autism connection, was indicted on 13 counts of fraud with the CDC and 9 counts of money-laundering this past April, bringing into question the CDC’s long-held position of the vaccine-autism connection; or that Helen Ratajczak, a former senior pharmaceutical firm scientist, recently reported in the Journal of Immunotoxicology, following her review of the autism literature from the early 1940′s, that “(d)ocumented causes of autism include . . . encephalitis following vaccination.” They won’t mention that every year, pharmaceutical companies pay over a billion dollars in civil and criminal fines for the illegal marketing of their products, and that members of that same industry essentially dictate vaccine policy and law for everyone in the United States. The list is endless, but the point is this: DOH seeks through the proposed design of its vaccine personal exemption form to discourage the exercise of personal vaccine exemptions by requiring communication between exemption applicants and professional members whose typical bias in favor of vaccines does not stand up to scrutiny. It is, therefore, inappropriate for DOH to take sides on any legal choice matter, and unethical for DOH to side with a pharmaceutical industry that routinely engages in criminal behavior. Once again, if DOH disagrees with the state legislature, it must take its concerns up with the legislature, and not the good citizens of Colorado directly.
In sum, for each and all of the above reasons, DOH should not require a medical professional’s signature of the personal exemption form .The state and DOH must either offer the exemption free and clear, or not at all. DOH’s desire to qualify or discourage the exemption may be well-meaning but is misplaced. Its concerns must be directed to the state legislature.
4. Finally, it could only be appropriate to list individual “Required” vaccines on a personal exemption form if citizens may “pick and choose” vaccines under that exemption. Absent an explicit right and option to pick and choose, it is at best unclear whether or not that option exists. So, listing individual vaccines is misleading and potentially confusing, and could even undermine a good-faith exemption applicant’s ability to exercise the exemption, if “picking and choosing” could result in denial of the entire exemption. But even if this is not DOH’s intent, the form gives this appearance. So the draft personal exemption form is at best unclear, and the Required list should be removed from the personal exemption form, unless there is and is clearly communicated the legal right to do so.
I applaud DOH’s concern for the safety and well-being of the good citizens of Colorado. I hope, however, that it will revise its expression of those concerns in the current drafts of personal and religious exemption forms, for the reasons stated above, and in accordance therewith.
 See, e.g., Troxel v. Granville, 530 U.S. 57 (2000).
 Vaccine Excipient and Media Summary, Part I,http://www.cdc.gov/vaccines/pubs/pinkbook/downloads/appendices/b/excipient-table-1.pdf, Vaccine Excipient and Media Summary, Part II,http://www.cdc.gov/vaccines/pubs/pinkbook/downloads/appendices/b/excipient-table-2.pdf; alphabetical vaccine ingredients list with corresponding toxicological effects,http://www.sailhome.org/Concerns/Vaccines.html.
 Harold Buttram, M.D., “Vaccine Scene 2000, Review and Update,” Medical Sentinel, Vol.5 No. 2, March/April 2000.
 Hearings before the Committee on Interstate and Foreign Commerce, House of Representatives, 87th Congress, Second Session on H.R. 10541, May 1962, at 94.
 Testimony of Barbara Loe Fisher, Co-Founder & President National Vaccine Information Center, U.S. House Government Reform Committee – August 3, 1999 “Vaccines: Finding a Balance Between Public Safety and Personal Choice”; Testimony of Bernard Rimland, Ph.D., Before House Committee on Government Reform, April 6, 2000.
 Infant mortality rates regressed against number of vaccine doses routinely given: Is there a biochemical or synergistic toxicity?, Human and Experimental Toxicology 2011,http://www.nvic.org/PDFs/Infant-Mortality-study.aspx.
 Poul Thorsen’s indictment:http://www.rescuepost.com/files/thorsen-indictment.pdf.
 Journal of Immunotoxicology, 2011; 8(1): 68-79.
 Public Citizen Study: Pharmaceutical Industry Is Biggest Defrauder of the Federal Government Under the False Claims Act,http://www.pharmpro.com/news/2010/12/government-and-regulatory-Pharmaceutical-Industry-Is-Biggest-Defrauder-of-the-Federal-Government/.
About the author:
Alan Phillips, Attorney at Law
P.O. Box 3473
Chapel Hill, NC 27515-3473
The Pandemic Response Project:www.pandemicresponseproject.com
This article was posted: Wednesday, August 3, 2011 at 3:32 am