Monday, February 20, 2012

Anti-Vaxx Parents Take their Case to Court

On 8 February 2012, some media outlets announced that two Queens, N.Y. parents were suing the Department of Education in Queens Supreme Court.  The case involves Nicole Phillips, the mother of two children at P.S. 188 forced to miss several weeks of class since November and Fabian Mendoza-Vaca, the father of two students at P.S. 107.  Both have religious exemptions for vaccines and are asking the court to, "nullify a law that would keep their children out of school if classmates are carrying communicable diseases such as measles, mumps, and chicken pox." When Ms. Phillips and Mr. Mendoza-Vaca obtained their religious waivers, they agreed to this:
Title: Section 66-1.10 - Exclusion of susceptibles in event of disease outbreak

66-1.10 Exclusion of susceptibles in event of disease outbreak. (a) In the event of an outbreak of diphtheria, polio, measles, rubella or mumps in a school, the commissioner may order the appropriate school officials to exclude from attendance all students without documentation of immunity, as specified in section 66-1.3 (a) or (b) of this Subpart, including those who have been excused from immunization under section 66-1.3 (c) or (d) of this Subpart.

(b) The exclusion shall continue until the commissioner determines that the danger of transmission has passed or until the documentation specified in section 66-1.3(a) or (b) of this Subpart has been submitted.
They are now complaining that they wish to risk the "chances with these mild childhood illnesses."  But it's not just about their acceptance of the risks, it's about public health overriding their wishes and protecting others for whom cannot be vaccinated for health reasons (who also must stay home in the event of an outbreak) and the larger community.

An attorney representing the parents, Patricia Finn states:
"The regulation violates both state laws regarding vaccination, as well as the free exercise clause of the First Amendment.
 “As it currently stands, the DOE’s policy is unfair to the children being taken out of school,”
"I'd like the judge to strike down the Chancellor's regulation as unconstitutional and order these children returned to school," Finn said. "It defeats the purpose of the state exemption. You can't have someone off applying the rule when they feel like it."
 No it doesn't.  The parents are free to exercise their religious freedom which consists of:
"We don't want anything being put into our bodies at all," said Nicole Phillips, the mother of two children at P.S. 188 forced to miss several weeks of class since November. "We'd rather rely on our natural immune system and our faith in God. This is about my children's rights."
"It is my opinion that resorting to vaccinations demonstrates a lack of faith in God, which would anger God and therefore be sacrilegious," Mendoza-Vaca claims.
There is no violation of their First Amendment rights as they're not being prevented from practising their religion.  Their children are being prevented from becoming infected and also acting as disease vectors in the school community.  There is simply no constitutional protection for vaccine exemptors attending school in the event of an outbreak.  An excerpt from Vaccination Mandates: The Public Health Imperative and Individual Rights (Is There a Constitutional Right to a Religious Exemption from Mandatory Vaccination? pp. 274) states:
Challenges to mandatory vaccination laws based on religion or philosophic be­lief have led various courts to hold that no constitutional right exists to either religious or philosophic exemptions. First Amendmentf free exercise clause Freedom to believe in a religion is absolute under the First Amendment. How­ever, freedom to act in accordance with one’s religious beliefs “remains subject to regulation for the protection of society.”40 The U.S. Supreme Court in the 1963 case of Sherbert v. Verner41 established a balancing test for determining whether a regulation violated a person’s First Amendment right to free exercise of religion. The test, which prevailed until 1990, required the government to justify any substantial burden on religiously motivated conduct by a compelling VACCINATION MANDATES 275 government interest and by means narrowly tailored to achieve that interest (374 U.S. at 406–8, 83 S.Ct. at 1795–6).
In addition, in a case that predates the Yoder decision and enactment of a statutory religious exemption by Arkansas, the Arkansas Supreme Court in Wright v. DeWitt School District 45 held that no First Amendment right existed to a religious exemption given the state’s compelling interest in mandating vac­cination under its police power to protect the public health.g (238 Ark. at 913, 385 S.W.2d at 648). Significantly, the U.S. Supreme Court in Yoder referenced the Wright decision in dicta regarding cases in which the health of the child or
public health are at issue, with the implication that a vaccination mandate pro­viding no religious exemption would meet the compelling state interest test (406 U.S. at 230, 92 S.Ct. at 1540–1).
The lawsuits have been transferred to Brooklyn Federal Court for an emergency hearing that could be decided any day now.

22 comments:

  1. Excellent and informative post. I was not aware that this was moving so quickly.

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  2. I can't help but think about this old joke in association with this case:

    http://www.coolfunnyjokes.com/Funny-Jokes/Religious-Jokes/The-Big-Flood.html

    "It had been raining for days and days, and a terrible flood had come over the land. The waters rose so high that one man was forced to climb onto the roof of his house.

    As the waters rose higher and higher, a man in a rowboat appeared, and told him to get in. "No," replied the man on the roof. "I have faith in the Lord; the Lord will save me." So the man in the rowboat went away. The man on the roof prayed for God to save him.

    The waters rose higher and higher, and suddenly a speedboat appeared. "Climb in!" shouted a man in the boat. "No," replied the man on the roof. "I have faith in the Lord; the Lord will save me." So the man in the speedboat went away. The man on the roof prayed for God to save him.


    The waters continued to rise. A helicopter appeared and over the loudspeaker, the pilot announced he would lower a rope to the man on the roof. "No," replied the man on the roof. "I have faith in the Lord; the Lord will save me." So the helicopter went away. The man on the roof prayed for God to save him.

    The waters rose higher and higher, and eventually they rose so high that the man on the roof was washed away, and alas, the poor man drowned.

    Upon arriving in heaven, the man marched straight over to God. "Heavenly Father," he said, "I had faith in you, I prayed to you to save me, and yet you did nothing. Why?" God gave him a puzzled look, and replied "I sent you two boats and a helicopter, what more did you expect?" "

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  3. Any idea what religions these two families are?
    Middle Roader

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  4. I think there are a few that prohibit or recommend against, but they are fringe groups. The only other thing I could think of is a non-standard interpretation of their religious text.

    It just seems that so often it's the non-standard people that get coverage as "religious" and give the rest of us a bad name or "wack-job" label. It can also make for some bad court decisions/infringement of rights that later on down the road hurt everyone. This suit seems like a very bad idea.

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  5. "and order these children returned to school,"

    Does she also want immunosuppressed children ordered to go to school when to do so would be life threatening for them? Ordered to school seems a bit harsh.

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  6. Does she also want immunosuppressed children ordered to go to school when to do so would be life threatening for them? Ordered to school seems a bit harsh.

    Good catch MR. It would be a slippery slope should the suit be successful (and I don't believe it will on the basis of constitutional infringement and the states rights to override individual "freedoms") because parents of immunocompromised children would be able to attend school during an outbreak. And while I believe that most if not all parents of medically fragile children wouldn't, who knows?

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  7. I believe that most if not all parent so of medically fragile children would be very careful to keep their children home in a case of preventable disease in school. What worries me is if the children involved in the court case are "ordered" back to school, what is to prevent medically fragile children from being "ordered" to attend school? That would mean that the parents would then have to face the choice of risking death to their child or risking truancy charges. I think that it would be sufficient for the court case children to be "allowed" back into school.

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  8. That would mean that the parents would then have to face the choice of risking death to their child or risking truancy charges. I think that it would be sufficient for the court case children to be "allowed" back into school.

    Exactly. That is why if this suit should prevail, a dangerous precedent would be set. The susceptible clause isn't limited to vaccine preventable diseases either so there is that to consider.

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  9. It's another case of, "I want to do what I want to do, but I don't want to deal with the consequences of what I want to do."

    They made the choice to not vaccinate and risk their kids catching diseases. They can live with the consequences - risking the disease and having to keep their kids home if there is an outbreak.

    It's got nothing to do with their religious rights being infringed. They're still able to worship as they please. They just don't get to send their kids to school when they want (ie: during a breakout). That's not infringing on their religion in any form.

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  10. I'm reading a midwife's diary from Maine in the 18th century. Obviously, she was literate, had above average access to natural medicine, doctors in her family, decent nutrition. She was also very religious and punctuated her entries by praising and thanking God. Three of her children died from diptheria in ten days. We here in the US in 2012 do not know how to process that kind of grief- it was a fact of life for parents like her. Mild diseases my ass.

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  11. Do any states have legislation that require schools to publish the number of students that are fully vaccinated, partly vaccinated and unvaccinated? Given the continuing decrease in vaccination rates, this would be useful information to parents of immune compromised children and even parents who want to make sure their healthy, vaccinated child isn't trapped with in a sea of unvaccinated vaccine-preventable-disease carriers.

    During Tucson-area's 2008 measles outbreak, where there were 21 cases, many involving young children, the Pima County Health Dept declared a medical emergency for the county. Arizona has a "personal beliefs" waiver that parents can sign to not vaccinate their child, but, like above, there is a clause that says unvaccinated children can be required to stay home during vaccine-preventable-disease outbreaks, for their safety as well as that of others. I called many of the school districts in the Tucson area, asking them if they were going to start enforcing this clause and they all, to a T, said they would not because there had not been any measles in their schools. I tried explaining that the county HD had declared a medical emergency, but the schools said they wouldn't send those kids home unless the HD told them to. I called the HD and asked about this and they said it was at the discretion of the school districts! I called the CDC, who were involved, and their rep rather useless replied that the CDC was merely serving in an advisory role and it wasn't up to the CDC at all (thanks, CDC).

    Thankfully the outbreak stopped at 21 cases, with no deaths. Still, I don't think that anyone at the schools understood that if they waited until measles showed up on their campus, given its extreme contagiousness and incubation period, it would have already been too late to prevent further spread to other students, especially those who were not vaccinated against measles.

    -Chris Hickie, MD, PhD

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  12. California does:
    http://www.cdph.ca.gov/programs/immunize/Pages/ImmunizationRatesatCaliforniaSchools.aspx

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  13. Chris (Dr. Chris) - thank you for sharing. I guess the long period of very few measles cases is making everyone complacent. It is ironic that all school directors and officials have forgotten what measles means (closed schools, isolation stations in hospitals, deaths, disability) and that it will most likely take some of that to remind them.

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  14. Chris-Thanks for the link showing how California does it for at least kindergarten. I feel it ought to be for all schools and all grades with a total for each school as well, which, given that schools are mandated to know the vaccine status of each student, shouldn't be a big deal. And not sure why smaller schools were exempt for "privacy" reasons, since infectious diseases care not a whit for "privacy".

    And you're welcome, Catherina. As a pediatrician it is heartening to find blogs like this were common sense still exists and people call things for what they are and use facts to back it up.

    And I sure do wish the AAP would decide to actually put somewhere, anywhere on their web site that the "alternative" schedules of Drs. Sears and Gordon should not be used by anyone since they have no basis in science, nor have they been tested by either physician. Trying to battle the nonsense put out by those two greedy charlatans is the bane of a pediatrician's existence and a clear and present threat to public health in this country.

    -Chris Hickie, MD, PhD.

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  15. Your welcome, Dr. Hickie.

    I assume the limited data is due to budget constraints. You may wish to write your legislators about immunization notifications in your state. Remind them of how expensive it is when there are disease outbreaks.

    And there is this paper in Pediatrics: The Problem With Dr Bob's Alternative Vaccine Schedule.

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  16. I very much like "The Problem With Dr Bob's Alternative Vaccine Schedule", but I've given this paper to vaccine-hesitant parents who've been wrongly convinced not to vaccinate by Sears, and unfortunately I've only had one parent read the paper and change his mind. Most said it was too scientific for them.

    I think most parents would be happier with a clear one-page policy statement from the AAP stating there is no basis or clinical evidence to support any alternative vaccine schedules, including those of Sears and Gordon, and that use of such schedules incurs unneeded danger to your child from vaccine-preventable diseases.

    Basically, I'm just irked beyond belief that these two pediatricians go merrily on their way threatening public health and endangering children while making money off their quackery, and the AAP can't find it in themselves to say enough is enough. I stopped paying my dues I'm so mad about it.

    -Chris Hickie, MD, PhD.

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  17. You might want to create your own flyer. Here are a couple of ideas:

    http://vaccines.com/_img/body/1-0/1-1_infographic_01.gif

    http://www.cdc.gov/vaccines/vac-gen/6mishome.htm#risk

    I wish this group would do this for more than the two vaccines:

    http://www.informationisbeautiful.net/2011/is-the-hpv-vaccine-safe-v-2-0/

    http://www.informationisbeautiful.net/2009/is-the-h1n1-swine-flu-vaccine-safe/

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  18. CDC Announces New Autism Rate of 1 in 88

    http://www.reuters.com/article/2012/03/29/us-autism-idUSBRE82S0P320120329

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  19. thats ASD rate 1 in 54 boys, according to CDC

    what about heavy U.S. vaccination schedule and immunogenic polyvalent vaccine (aluminium, viral vectors exposure) correlation ?

    e.g. hep B at birth and then hexavax shots in the first months of life

    is MMR vaccine really safely developed vax in regard to infant immnune and nervous system ?

    what about mitochondrial genetic abnormalities..

    aluminium neurotoxicity etc..

    arent we ignoring something here ?

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  20. Thats pretty clear there must be enviromental factors to the rising ASD epidemic, and so heavy "industrial" vaccination schedules in U.S. are suspect..

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    1. The environmental reasons are prenatal. If you have any other evidence please present it.

      The MMR is not given until a child is a year old, when they no longer are defined as "infants." The MMR vaccine has been used in the USA since 1971. If you have evidence that autism rates started to rise about forty years ago, please present them.

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  21. arent we ignoring something here ?

    Nope, you are actually by holding on to the vaccinesdidit dead hypothesis. Why don't you let the scientists do their jobs and stop playing one on the interwebz? It is going to take a long time and a lot of work to elucidate the aetiologies of autism but in the meantime, we can rule some things out like vaccines.

    Thats pretty clear there must be enviromental factors to the rising ASD epidemic, and so heavy "industrial" vaccination schedules in U.S. are suspect..

    It's pretty clear to minds like yours. How do you explain unvaccinated autistics? How do you explain that countries with much lighter vaccine schedules have reported higher ASD prevalence prior to the U.S.? Why don't you consider these factors before making such vapid, unsubstantiated statements. Have you also considered that when the DSM-V is implemented that ASD rates will decrease? Will you then be prepared to say that vaccines prevent autism? It's consistent with your "logic" after all.

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