Alan Phillips, J.D.
March 31, 2011
Recently, Washington State voted to pass SB 5005, a law making doctors the gatekeepers of all vaccine exemptions — medical, religious and philosophical. This law was passed despite SB 5005’s Constitutional failings (for a legal analysis of the bill, see Proposed new limits on vaccine exemptions: Are they Constitutional?) Washington citizens now have two choices: Challenge the law in court, or get their representatives to repeal SB5005, since it is unconstitutional.
The reality is, legislators can pass a law that whether it is Constitutional or not, and once passed, the new law is “good law” — enforceable — unless and until it is successfully challenged in court or repealed. If Washington State citizens pursue one of these courses successfully, legislators who voted for it will take a credibility hit, as they were informed about the Constitutionality problems in advance of the vote on the bill.
Meanwhile, the war rages on in other states. For example, New York’s S00384/A00343 would allow health care practitioners to administer STD vaccines to minors without the consent or knowledge of their parents. This is unconstitutional on several grounds. For one, parents are legally presumed to act in their children’s best interests, so unless a judge rules that a parent is unfit, bypassing parental consent would usurp the parents’ Fourteenth Amendment due process right to parent their own children. This bill presumes that fit parents can’t or won’t make the right decision for their child, and would set a disturbing precedent if passed.
The New York bill is questionable on other grounds as well. Since minor’s religious beliefs are deemed to be those of their parents for legal purposes, every time a health care practitioner vaccinates a minor whose parent has religious objections to vaccines, that parent’s First Amendment “free exercise” rights will be violated, with that Constitutional violation sanctioned by the state. The bill also requires the minor to have the “capacity to consent” to the vaccine and to give their consent, but it doesn’t define “capacity” or explain what constitutes “consent” for a minor. This makes a consistent application of the bill all but impossible, which means it may violate the Fourteenth Amendment’s equal protection clause. For a more detailed legal analysis of this bill, seeNY Vaccine Bill Usurps Constitutional Rights.
Finally, despite criticism of New Jersey’sACR157on Constitutional grounds in recent weeks, this “Assembly Concurrent Resolution” went on to become billS2625and A3836. It requires applicants for a religious exemption to immunizations to provide a written statement explaining how the vaccines conflict with the applicant’s religious tenets and practices. However, federal courts have held that one need only have a belief that is religious in nature and sincerely held to qualify for a vaccine religious exemption, not a tenet or practice. In addition, the words ‘tenet’ and ‘practice’ clearly imply, if not outright require, membership in an organized religion. But federal courts have held that it doesn’t matter whether or not you belong to an organized religious organization, nor which one you belong to if you do, so this bill violates both the free exercise and establishment clauses of the First Amendment. If enacted into law, S2625/A3836 will clearly be vulnerable to a formal challenge in court, and New Jersey residents should seek immediate repeal, as it is clearly an unconstitutional statute.
The race is on to limit vaccine exemption rights and to add new immunizations to the schedule around the country. If you are not in the states mentioned above, you have no reason to be complacent, because your state will be next! We must be vigilant, and we must become legislatively active. Rights in this arena are not stagnant. If we are not taking steps to expand them, we will become victims of their disappearance. I recommend joining theNational Vaccine Information Center’s Advocacy Portal. It’s free to sign up, and you can track vaccine legislation in your state and act quickly and easily to support vaccine freedom of choice. If your state doesn’t already have a director, volunteer! Our future depends on it.
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: Thursday, March 31, 2011 at 4:57 am