Tuesday, February 22, 2011 by: Alan Phillips, J.D.
Health authorities around the country are set on further restricting vaccine exemption rights, probably due to the growing awareness of vaccine problems and increase in exemptions around the country. Currently, proposed laws in Washington State and New Jersey would limit the ability of residents in those states to refuse vaccines. If not stopped, those new restrictions will soon become law and pave the way for further restrictions across the country. Predictably, anti-vaccine activists are opposing these bills, but with state health departments and well-financed pharmaceutical lobbyists on the other side, is a grass roots effort likely to succeed? Hopefully so, but if the proposed laws are shown to raise significant Constitutional issues, anti-vaccine activists may find that they have a “David” advantage against the “Goliath” opposition.
The importance of this critical strategic point cannot be overstated. A bill can die a quick death if it is unconstitutional, regardless of how many constituents or special interest groups support it. It may take thousands of activists to successfully oppose legislation supported by state health authorities and the pharmaceutical industry, but it may take only one activist revealing serious Constitutional flaws to stop the bill dead in its tracks. So, let’s take a look at some of the arguments, as these may apply to future attempts to restrict vaccine exemptions in other states in the future, as well as to these two states now.
In Washington State, SB 5005 would require that forms for all exemptions, whether religious, medical or philosophical, to “include a statement signed by a health care practitioner, that the parent or guardian has been informed of the benefits and risks of the immunization.”1 Aside from failing the common sense test – health care practitioners should not be the gatekeepers of non-medical exemptions – this bill may also be unconstitutional with regard to religious exemptions.
The U.S. Constitution does not require states to offer religious exemptions, but when they do, those laws must conform to the boundaries of the First Amendment’s ‘free exercise’ and ‘establishment’ clauses. But since the Constitution doesn’t mention vaccines or exemptions, how do we know what these clauses really mean with regard to vaccine exemptions? When the application of law to a specific set of facts is unclear, we must look to legal precedent from the courts for guidance.
Federal courts have held that the only two requirements needed to invoke First Amendment protection for religious exemptions is that the beliefs be religious in nature and that they be sincerely held.2 The boundaries of those two requirements are defined by legal precedent as well, but for SB 5005 purposes, the point is that this bill would add an additional requirement, above and beyond what the First Amendment requires. Since federal law is a higher authority than state law, a state law arguably can’t add requirements over and above what is required by the federal, First Amendment, as set forth in federal legal precedent.3 So, Washington State’s SB 5005 may violate the First Amendment, and if passed, it would be vulnerable to attack and subject to being stricken accordingly.