by: Alan Phillips, J.D. 
A New York federal court recently dismissed a case brought by parents whose unvaccinated children were excluded from school during local outbreaks. The parents, whose children were exempt from vaccines on religious grounds, claimed that the exclusion policy violated their Constitutional and state law rights.[1] The court’s written opinion suggests possible problems with both the parents’ attorney’s approach and the court’s response.
Regarding the latter, the court accurately states that there is no Constitutional right to a vaccine religious exemption, which means that the Constitution does not require states to offer a religious exemption. But the court failed to explain that once a state does offer a religious exemption, the state is lawfully obligated to protect that right with the full force and effect of the U.S. Constitution. So, the parents in this case had a valid Constitutional right to refuse vaccines on religious grounds. Therefore, the real issue in the case concerned the boundary of those rights; specifically, whether or not the parents’ Constitutional rights prohibit the state from requiring children with religious exemptions to stay out of school during a local outbreak.
Allowing that the court may have ruled properly based on the evidence and legal arguments presented in this particular New York case, is this nation-wide policy otherwise really Constitutional? Is the policy sound, medically and scientifically? I say “no” on both counts, for the reasons explained below, with reasoning that remains fully without the bounds of standard legal principles and mainstream medicine.[2]
First, an “outbreak” is typically defined as any number of documented disease cases greater than “normal.” A few decades ago, that might have been 10, 20 or even more cases. Nowadays, though, “normal” is generally considered zero cases. This enables a single case of chicken pox, for example, to be labeled an “outbreak,” requiring all unvaccinated kids in a classroom or school to be excluded for 21 days, the upper end of the 10 to 21 day incubation period for this particular disease.
While I applaud the presumed underlying intent of the exclusion policy (to prevent the spread of disease), this policy is fundamentally flawed. It is based on a false medical pretense. To explain:
First, according to the CDC website:
1. Routine immunizations are 85 – 95% effective.[3] That is, 5-15% of vaccinated children do not develop immunity from their vaccines. While the medical literature cites much higher figures for some vaccines, and lawsuits have been filed over the use of fraudulent research to fake efficacy rates in this range, I’ll give the benefit of the doubt and use these flawed-in-favor-of-vaccines figures anyway;
2. Nationally, an average of 1.8% of kindergartners had vaccine exemptions in the 2012-2013 school year;[4] and
3. Non-vaccinated children can develop natural immunity, without even developing symptoms.[5]
From these three CDC “facts,” we can clearly deduce that:
1. A child’s vaccination status does not tell us that child’s immune status. To determine a child’s immune status, a titer test must be performed, regardless of whether or not the child has been vaccinated;
2. There are, on average, more than 5 times the number of non-immune, vaccinated children as there are unvaccinated exempt children (the latter of which may have natural immunity whether or not they’ve even been sick);
3. Therefore, the exclusion policy is fundamentally flawed, medically and scientifically, because it assumes that excluding a small number of potentially immune exempt children will have a significant protective effect, while inadvertently presuming that the much greater number of non-immune vaccinated children left in school will have no impact on the spread of disease.
Exclusion policies, then, unfairly punishes unvaccinated children and their families, who must contend with having a healthy child kept at home for up to three weeks or more. This reality provides the basis for sound legal reasoning as to why the policy is also unconstitutional.
Religious Exemptions
State and federal religious exemptions come with federal Constitutional First Amendment “free exercise” of religion rights. When government treats people differently because of religious beliefs, it must have a compelling reason for doing so, or it is violating those people’s First Amendment rights. If non-vaccinated children were necessarily lacking immunity and vaccinated children were necessarily protected, excluding children with religious exemptions might very well be Constitutional. But given the lack of any definitive relationship between vaccination status and immune status as to any given child, and the far greater number of non-immune vaccinated children than exempt children, we can clearly conclude that the exclusion policy in question is not supported by a compelling government interest (or at best by a misguided one). The goal of curtailing the spread of infectious disease is not adequately addressed if 1.8% of children are kept home during an outbreak (despite the fact that they may be immune) while 10% of the students who remain in school are lacking immunity. This amounts to an arbitrary exclusion of children based on their parents’ religious beliefs, and that is discriminatory behavior in violation of those parents’ First Amendment Constitutional rights.
Philosophical Exemptions
There are rights that apply both to parents exercising religious exemptions and philosophical exemptions. In both instances, parents are exercising a state law exemption right, but also a higher, federal Constitutional right, the right to parent their children. This right comes from the 14th Amendment’s “due process” clause, as interpreted and applied to parental authority by the Supreme Court in a series of cases extending back over the past 100 years or so. Parents’ right to the “care, custody and control” of their children includes the right to make medical decisions, and the state may only intervene in a narrow range of situations such as medical emergencies or when parents are abusing or neglecting their children. An additional Constitutional right called into question here is the 14th Amendment’s “equal protection” clause, which requires each state to provide “the equal protection of the laws” to all persons in the state. Since the exclusion policy in question has a clearly arbitrary aspect to it–the exclusion from school of exempt children who may or may not be lacking immunity, while retaining a greater number of vaccinated children who lack immunity–the exclusion policy should not hold up to proper legal scrutiny under either the due process clause or the equal protection clause. Such policies do not constitute a rational intervention even if an outbreak of chicken pox is properly considered to be an “emergency,” and they clearly do not apply a proper standard fairly and equally to all of the parents and children involved.
State Constitutional Right to a Public Education
Finally, many if not all state constitutions guarantee the right of children to a public education to their citizens. This right may also be violated in any event, since the children are excluded despite all concerned being in compliance with the law.
Is There a Better Solution?
If we assume that titers are an accurate way of measuring a child’s protection from disease (an assumption contradicted by the medical literature[6]), the ideal solution might be to do titer tests on all students once or twice each year, or immediately upon confirmation of an infectious disease in a fellow student. But it would probably not be feasible for schools or parents to perform regular titer tests on all students. However, the following proposal would constitute a policy with integrity that is both scientifically and legally valid. It grants parents final decision-making authority based on complete information, and allows parents to make their decision in consultation with the healthcare professional of their choice. If we don’t return parental decision-making authority to parents in such matters, we doom ourselves to the ongoing and further abuse of parents and children by the same special interests that managed to implement this flawed policy in the first place.
A Rational School Infectious Disease Policy for Common Childhood Diseases
Once an infectious disease case has been confirmed in a school, the schools should be required to immediately notify all parents about:
1. The fact of the outbreak, including the number of cases, the specific disease, and the location in the school;
2. The statistical percentage of vaccinated children whose vaccines don’t work, and the average rates of immunity decline over time, based on the latest independently verified medical literature to date;
3. The fact that non-vaccinated children may have natural immunity, whether or not they have ever developed symptoms, and the statistical likelihood of this in any given child;
4. The fact of the existence of the National Vaccine Injury Compensation Program (NVICP), with current statistics for cumulative payouts from the NVICP and average annual payout to date (at the time of this article, $2.86 billion cumulative to date, over $115 million/year average);[7]
5. The fact that the CDC, FDA and other reputable entities estimate that only 1 to 10% of serious vaccine adverse events are reported;[8] and
6. The parents’ right and obligation to determine what steps are necessary and appropriate for their children, in consultation with the healthcare professional of their choice, which may include:
a) Having their children tested to determine their level of immunity,
b) Having their children vaccinated or revaccinated,
c) Doing nothing at all (favoring exposure and the life-long immunity that may ensue), and/or
d) Keeping their child home for the incubation period of the disease, whether or not their child is vaccinated
Days missed for children kept home during an infectious disease outbreak as a precautionary measure exercised in the discretion of a parent should be “excused” absences.
In the event that the state should insist on classifying benign childhood infectious diseases as an “emergency” requiring intervention (which makes no more sense than classifying a car ride as an emergency based on the 10’s of thousands of automobile deaths each year in the U.S.), the state should provide a temporary alternative location for the uninterrupted education of all excluded children, and provide any needed transportation. If you’re going to impose a hardship on people to soothe your own misguided conscience (or worse, in deceptive support of a private business agenda), you should be fully responsible for the decision and its impact on others.
In Conclusion
Modern vaccine policy and law has been driven by fear-based propaganda designed to further private pharmaceutical interests, and possibly other non-monetary goals as well. It’s time to correct this problem. We need to bring transparency and honesty to the political process and healthcare policy. Introducing legislation to end the unnecessary discrimination imposed on innocent students and parents every time some vaccinated kid gets the chicken pox would be a big step toward this end.
I work with clients, attorneys, and vaccine legislative activists throughout the U.S. If you’d like my help, please feel free to contact me.
Alan Phillips, Attorney at Law
attorney@vaccinerights.com
www.vaccinerights.com
[1] http://law.justia.com
[2] Current policy throughout the U.S. requires unvaccinated children to be excluded from school, during a local outbreak, for the incubation period of the disease. This has caused some unfortunate problems. For example, one North Carolina parent reported her non-vaccinated child was excluded three times in one year, each time for 21 days, due to a single case of the chicken pox. An Alabama parent reported her unvaccinated child’s excluded absences were all marked “unexcused.” Let’s look at the medical and legal problems with this policy.
[3] Centers for Disease Control and Prevention, Vaccines and Immunizations, Misconception #2. The majority of people who get disease have been vaccinated, http://www.cdc.gov/vaccines/vac-gen/6mishome.htm
[4] “Vaccination Coverage Among Children in Kindergarten – United States 2012-2013 School Year,” Morbidity and Mortality Weekly Report (MMWR), CDC, http://www.cdc.gov
[5] Centers for Disease Control and Prevention, Vaccines and Immunizations, Glossary, “Asymptomatic infection: The presence of an infection without symptoms. Also known as inapparent or subclinical infection.” http://www.cdc.gov/vaccines/about/terms/glossary.htm
[6] See “Dispelling Vaccination Myths,” Myth 4, www.vaccinerights.com/articles.html
[7] http://www.hrsa.gov/vaccinecompensation/statisticsreports.html
[8] See Note 6, Myth 1.
About the author:
Alan Phillips, Vaccine Rights Attorney
attorney@vaccinerights.com, 1-828-575-2622
Vaccine Rights (www.vaccinerights.com)
