California bill eliminating religious and personal belief exemptions passes in Assembly

California bill eliminating religious and personal belief exemptions passes in Assembly

​California Senate Bill 277, which eliminates religious and personal belief exemptions from vaccination for school children, passed in the Assembly on June 25.  It is now back before the Senate for consideration of Assembly amendments to the bill. Assuming the Senate concurs in the amendments, which appears likely, the bill heads to Gov. Jerry Brown for his consideration.

If signed by Gov. Brown, California will become the third state, along with Mississippi and West Virginia, to eliminate all but medical exemptions. Students will non-medical exemptions on file as of January 1, 2016, will be allowed to enter school and retain those exemptions, in some cases through several grades.  But after July 1 of next year, no student, no matter what his or her exemption status, will be allowed to enter the seventh grade without being fully vaccinated. 

Coverage of this historic event was mostly limited to California media, likely due, at least in part, to the Supreme Court's making health care history of its own in King v. Burwell, upholding the Affordable Care Act. This decision dominated coverage by the health care media, leaving the Assembly's vote little noticed outside California. Actually, the two events have some relevance to each other: the ACA requires that childhood vaccinations be a covered health insurance benefit with no co-pay.

One might think that a bill passing with bipartisan support after a full and fair public airing of the issues would be a no-brainer for the Governor, but unfortunately that is not the case. Gov. Brown has not said he will, and he has not said he won't, sign the bill. His previous insertion of a religious exemption into a bill requiring a health care provider's signature on vaccination exemption forms concerns the bill's supporters. This event underscored his willingness to go against the legislative and public grain, as he had absolutely no authority to add the exemption. Had it been challenged in court, it almost certainly would have been overturned.

The fight will be far from over if the bill becomes law. There are already recall petitions aimed at the bill's legislative supporters. A new bill filed in the next legislative session (which begins in January, 2017) might attempt to repeal the law or weaken it with amendments. And I have little doubt it will be challenged in court.

A couple of possibilities for a constitutional challenge come to mind. First, anti-vaxxers have been itching to overturn Jacobson v. Massachusetts and subsequent cases that put the brakes on parents' using their religious beliefs to endanger their children's health. (Philosophical objections do not raise a constitutional issue.) That would mean a trip to the U.S. Supreme Court after the case made it through the trial and appellate level, which could take several years. Even then, the Supreme Court might decline to hear the case, leaving Jacobson and its progeny standing.

A challenge could also be filed in state court based on a claim that the law violates the protections given religious freedom by the California state constitution. I see no indication that this would be successful either, but I will leave a call on that one to experts in California constitutional law.

A suit based on the claim that the law violates a child's right to an education has been discussed as well, but legal experts don't think it would be successful. UC Berkeley, law professor Stephen Sugarman, an expert on education rights, said he does not believe SB 277 violates parents' or students' constitutional rights. According to the San Jose Mercury News,

"'We interfere with people's liberty in the name of public health in many ways," said Sugarman. . . . He pointed out that individuals with tuberculosis can be quarantined, while chemicals are added into the public water supply to fight tooth decay. He said if objecting parents 'lose this battle in Sacramento, I don't think that the courts are the right place to provide them with relief in this instance.'"

Whatever grounds they chose, the plaintiffs will almost certainly seek an injunction barring the law from taking effect pending resolution of the litigation. It is far from clear that the injunction would be granted, given the demonstrable threat to public health posed by unvaccinated children and the well-settled law against their position.

Senate Bill 277 is certainly a great public health victory and a sign that public sentiment is turning away from the anti-vaccinationists' illogical position. Unfortunately, this battle is far from over. 

Points of Interest 06/28/2015
Points of Interest 06/22/2105

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