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Wednesday, October 09, 2013

Viewpoint: Signing Statement on Vaccines Is Not Law

Professor Dorit R. Reiss

Professor Dorit R. Reiss

Beginning in January 2014, the requirements for parents who want to utilize California's personal belief exemption and send their children to school without the required childhood immunizations will change, as AB2109 becomes effective.

This article is reprinted with permission from the October 9, 2013 edition of The Recorder.

by Dorit Reiss

Beginning in January 2014, the requirements for parents who want to utilize California's personal belief exemption and send their children to school without the required childhood immunizations will change, as AB2109 becomes effective. Previously, a parent only had to file a letter or affidavit claiming some or all immunizations were "contrary to his or her beliefs." (Health and Safety Code, §120365). Under the new law, parents or guardians will also have to submit a "signed attestation" from a health practitioner that the practitioner has explained to them the risks and benefits of vaccines and the risks of vaccine preventable diseases and a statement that the person(s) requesting the exemption received the information.

In his signing statement, Governor Jerry Brown said that he was "directing the Department of Public Health to oversee this policy so parents are not overburdened in its implementation. Additionally, I will direct the department to allow for a separate religious exemption on the form. In this way, people whose religious beliefs preclude vaccinations will not be required to seek a health care practitioner's signature."

The governor is well within his rights to direct the Department of Public Health how to implement the law, and it is laudable that he did that in a transparent manner, via the signing statement, rather than behind the scenes. But instructing the Department of Public Health to create a religious exemption from this requirement is neither desirable nor legal.

New Requirements Do Not Violate Freedom of Religion

No major religion in the United States prohibits its members from vaccinating, and many encourage it. Religious scholars have stated that the pork gelatin in some vaccines does not prevent observant Muslims and Jews from being vaccinated. The Vatican had ruled that vaccines manufactured using fetal cell lines are ethical for Roman Catholic parents to receive. Even Christian Scientists, while clearly discouraged from vaccinating, were directed by founder Mary Baker Eddy to vaccinate if the law requires it:

"Rather than quarrel over vaccination, I recommend, if the law demand, that an individual submit to this process, ... and then appeal to the gospel to save him from bad physical results." (Mary Baker Eddy, Prose Works, Miscellaneous, pp. 219-220).

While some religions do expressly oppose vaccination, for example, the Congregation of Universal Wisdom founded by chiropractor Walter Schilling (created at least in part for the purpose of avoiding compulsory vaccination), it is doubtful that Brown wanted to accommodate such groups when he added the exception.

At any rate, AB2109 would not even run afoul of a religion that expressly prohibited vaccination. The statute does not require anyone to vaccinate; it preserves the personal belief exemption. It simply requires that parents receive information about risks and benefits. No religion prohibits that. Even parents whose religious beliefs would prohibit vaccination deserve full information on which to base the decision whether to vaccinate. Indeed, such parents have a particular need of medical information to devise appropriate strategies to preserve their children's health absent vaccination. The state is entitled to require that parents and guardians have the information they need to consider the consequences of a healthcare decision being made for children. The requirements of AB2109 make it more likely that parents and guardians get that information before choosing not to vaccinate.

Health Department Should not Discriminate Among Beliefs

A state is not constitutionally required to provide a religious exemption — it is within police power to prioritize the health of the children involved and the public health over freedom of religion in the context of vaccination (Prince v. Massachusetts, 321 U.S. 158 (1944); Workman v. Mingo County Bd. Of Education, 419 Fed.Appx. 348). On the other hand, a state may choose to provide a religious exemption. But if it does, courts in most states have ruled that it cannot limit that exemption to established religions, because that violates the Equal Protection Clause in the 14th amendment of the Federal Constitution by discriminating against non-organized religion.

It is appealing to make the criterion "established" religion; that provides a workable guideline, and can help reduce concerns about fraud, since you can check whether the established religion holds the beliefs claimed. But it may not prevent abuse: as the Congregation of Universal Wisdom demonstrates, religions can be established for the sole goal of providing the required exemption. It also discriminates against those who may have a sincere religious belief, but are not part of an organized congregation, and are too sincere to join one for just this purpose. It is not surprising that most courts reject that approach.

The Governor May Not Unilaterally Change the Statute

The statute does not exempt those with religious objections to vaccination from obtaining a healthcare practitioner's signature on the exemption form. Without that signature, the governing authority is simply not authorized to "unconditionally admit any person as a pupil of any private or public elementary or secondary school, child care center, day nursery, nursery school, family day care home, or development center" (§120335).

Signing statements are useful and important. They can make transparent the views of the administration on how laws should be interpreted. They can provide courts with guidance on interpreting a statute (though scholars disagree about their role in interpretation), and can help direct public officials how to implement a statute. But a governor can only direct executive officials to act consistent with powers provided in the statute, and may not go beyond it. If the governor goes beyond the statutory mandate, his words in the signing statement do not carry the force of law. A governor is not authorized to add an exemption that is not in the statute without going through the legislative process.

The limits on the United States' President's powers in signing statements have been extensively discussed by legal scholars. Several scholars support a president's use of signing statements to say a provision will not be enforced (Bradley, Curtis A.; Posner, Eric A., Presidential Signing Statements and Executive Power 23 CONST. COMMENT. 310 (2006)). Bradley and Posner note that a president's powers allow the setting of enforcement priorities — with or without a signing statement — and the statement simply adds transparency. But none support the complete rewriting of a statute to add an exemption that is not in it. There is nothing in California's constitutional structure to suggest a different result. Brown is certainly within his rights when he instructs officials to implement the new law in a non-burdensome manner; but a court is extremely unlikely to, and indeed should not, uphold a new exemption whose only source is a signing statement. The signing statement would not inoculate the state against a hard-to-win legal challenge.

Dorit Reiss is a professor of law at UC Hastings where she teaches public law, public administration, and law and politics.

The Recorder welcomes submissions to Viewpoint. Contact Vitaly Gashpar at vgashpar@alm.com.

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