California children betrayed: Governor Jerry Brown and the neutering of a law designed to make vaccine exemptions harder to get

About a year ago, I became aware of the latest celebrity antivaccinationist with a penchant for saying truly stupid things and thus making an even bigger fool of himself than he usually does. I’m referring to Rob “makin’ copies” Schneider, who most recently has been making waves for narrating a misinformation-packed “viral” video about the Vaccine Court and the National Vaccine Injury Compensation Program (NVICP). It’s a video that’s so mendacious that it even amazes me, and I’ve been watching the antivaccine movement for a decade now.

However, back in 2012, Rob Scheider, apparently being a California resident, was outraged at what he viewed as an assault on freedom so horrific that, if allowed to stand, it would obviously produce a slippery slope that would lead straight to fascism and medical experimentation on par with what Josef Mengele did at Auschwitz. (No one ever accused Rob Schneider of subtlety—or much intelligence.) I’m referring to California Bill AB 2109, which ultimately passed the legislature to be signed by Governor Jerry Brown. AB 2109 was a simple bill, based on a simple concept, designed to try to alleviate the problem of increasing rates of school vaccine exemptions being claimed by parents. California is a state that allows both religious and philosophical exemptions, and the use of philosophical exemptions was increasing. In certain areas, it was increasing to the point that vaccination rates were falling below herd immunity levels, a development of much concern to public health officials. There’s a reason I’ve said that, when the outbreaks begin, they’ll probably begin in California.

In any case, the idea behind AB 2109 was this. The old California vaccine exemption form made it too easy to get a philosophical exemption. Basically, all a parent had to do is to check a box on a form, and that’s that. In fact, it was so easy that many public health and school officials believed that some parents were claiming the exemption because it was easier to do than to actually make sure their children got their shots as required. Originally, AB 2109 was designed to bring informed consent and a minor hoop to jump through to the process by requiring a parent to speak to a health care practitioner (physician, nurse practitioner, or physician’s assistant) for a discussion of the risks and benefits of vaccines—and vaccine refusal. The doctor would then have to sign the form, attesting that such a conversation took place. It was a case of trying to provide true informed consent versus the misinformed consent that antivaccinationists generally provide, to make it just a little more difficult to claim a philosophical exemption by requiring at least one trip to a health care provider. Not surprisingly, the antivaccine-friendly Dr. Bob Sears and the rest of the antivaccine movement blew a proverbial gasket, attacking the bill as a horrific assault on parental rights and freedom, one example being Rob Schneider, as mentioned above.

They probably needn’t have worried. AB 2109 in action is probably going to be next to useless to decrease the number of philosophical exemptions, as I found out from the California Immunization Coalition, Emily Willingham, and Harpocrates. Of course, I was concerned with one major amendment to the bill before it passed that expanded the list of health care practitioners (see text of bill) who could counsel parents. While I approved of the addition of school nurses to the list, unfortunately the bill was also amended to include “naturopathic physicians” (i.e., quacks), which are the favored health care provider of many antivaccinationist because naturopaths tend to be antivaccine themselves. (Indeed, it is rare to find a pro-vaccine naturopath, and most of them are barely pro-vaccine.) Harpocrates and Emily don’t dwell on this enormous loophole, which is probably enough to neuter the law just by itself, but unfortunately, as I mentioned before, because it would allow parents to see whatever antivaccine quack they wanted for “counseling,” thus avoiding any uncomfortable science-based information.

Even worse, though, when Governor Brown finally signed the law he added this signing message:

This bill is about explaining the value of vaccinations – both the benefits and risks – for an individual child and the community. Whether these are simple “information exchanges” or more detailed discussions, they will be valuable even if a parent chooses not to vaccinate.

I am signing AB 2109 and am directing the Department of Public Health to oversee this policy so parents are not overly burdened by 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.

As I said at the time, arrrrrggggh! This statement seems to say that just requiring a religious person to talk to a health care provider is some sort of massive violation of his religious freedom. There was also nothing in the law that authorized the governor to add any such statement to the form. But what did Brown mean? Now, thanks to the California Immunization Coalition, we’ve found out. I’ve seen the California Department of Public Health press release, which includes a link to the actual form to be used.

And I say again: Argggggghhhh!

Or maybe I should just throw in a facepalm as well:

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The form is pretty minimalist in its design, which is what one would expect from the law. Basically, there’s a statement for the health care practitioner to sign:

Provision of information: I have provided the parent or guardian of the student named above, the adult who has assumed responsibility for the care and custody of the student, or the student if an emancipated minor, with information regarding 1) the benefits and risks of immunization and 2) the health risks to the student and to the community of the communicable diseases for which immunization is required in California (immunizations listed in Table below).

There are boxes for the parent to check to attest that she got the information from her health care provider and boxes to choose either affirming that the child got all his shots or that the parent is claiming a philosophical exemption:

Immunizations for which exemption is requested: An unimmunized student and the student’s contacts at school and home are at greater risk of becoming ill with a vaccine-preventable disease. I understand that an unimmunized student may be excluded from attending school or child care during an outbreak of, or after exposure to, any of these diseases for the protection of the student and others (17 CCR §6060). I hereby request exemption of the student named above from the required immunizations checked below because such immunization is contrary to my beliefs.

What follows is a list of required vaccines that the parent can then refuse. So far, nothing unexpected. However, there is also a box that can be checked that says this:

Religious beliefs: I am a member of a religion which prohibits me from seeking medical advice or treatment from authorized health care practitioners. (Signature of a health care practitioner not required in Part A.)

WTF????

What on earth does this mean? It basically seems to sanction child abuse. As we’ve seen before, while competent adults have the right to refuse medical care for any medical condition for basically any reason at all, they do not have the “right” to medically neglect their children. True, in this country, as I’ve pointed out before, parental rights seem to trump all, and it takes a child in danger of dying from a deadly disease like lymphoblastic lymphoma to get the child protection authorities to act. Oh, wait. They didn’t, even in that case. A hospital did. The principle is there, though. The state of California has basically said on its vaccine exemption form that it’s OK not to take your child to see a doctor and even gone so far as to allow parents to use the claim that their religion doesn’t let them take their children to see a physician, NP, PA, school nurse, or “naturopathic physician.” Of course, the number of religions that include such beliefs is vanishingly small, as is the number of people who belong to such religions. Small though they may be, such religions cause enormous harm, leaving dead children in their wake. One wonders why Governor Brown felt the need to bend over backwards to show such deference to such fringe beliefs? It’s a misguided concept of religious freedom that privileges beliefs that

Also, as Harpocrates has pointed out, this is not in the text of AB 2109. There is no provision for religious exemption in the bill that allows parents to opt out of even seeing a health care professional to have the form signed. The law requires a:

…signed attestation from the health care practitioner that indicates that the health care practitioner provided the parent or guardian of the person who is subject to the immunization requirements of this chapter, the adult who has assumed responsibility for the care and custody of the person, or the person if an emancipated minor, with information regarding the benefits and risks of the immunization and the health risks of the communicable diseases listed in Section 120335 to the person and to the community. This attestation shall be signed not more than six months prior to the date when the person first becomes subject to the immunization requirement for which exemption is being sought.

How can this form not be against the law? Worse, this form reinstates the very problem that AB 2109 was designed to correct: The ability of parents to gain an exemption from school vaccine requirements simply by checking a box on a form, something easier than actually taking their children to the doctor to get them vaccinated according to school requirements. We know that antivaccinationists have no compunction about lying about their religion in order to claim vaccine exemptions. This form will facilitate that.

The California Department of Public health claims that “the form also allows for constitutional freedom of religious expression.” I suppose that’s true in a way, but in reality the form goes far beyond constitutional requirements to protect freedom of religious expression. As I said, it basically bends over backwards and ties AB 2109 into a pretzel, all to protect “freedom of religious expression” above and beyond what other laws do. One wonders if the state of California would view it in such a benign fashion if, as in the case of Catherine and Herbert Schaible, who through medical neglect let two of their children die of pneumonia rather than take them to a doctor because their religion proclaimed that prayer, rather than medicine, would heal them?

Harpocrates and Emily also bring up another rather dicey issue. By signing the form, parents are stating that they believe in a religion that forbids them from from seeking medical advice or treatment from one of the five classes of health care practitioners, four science-based and one quack. That’s not just vaccines, but all medical treatment, leading Harpocrates to ask:

What happens if Timmy needs a doctor’s note to be excused from school or participation in some school activity (e.g., gym)? Will a note from some unauthorized health care practitioner (i.e., quack) be accepted, or will the parent have to “go against their religious beliefs” and see an authorized health care practitioner? Or perhaps Timmy gets sick or injured. What if he breaks a bone and requires medical attention to ensure it is set correctly? Do the parents do it themselves, or do they take Timmy down to the local health center for treatment, against their professed religious beliefs? And in any of these situations, if the parent goes to an authorized health care practitioner for medical advice or treatment for the child, does that mean that the form is invalidated, since they have demonstrated that they can and will go to a provider despite stating religious objections to the contrary?

While it’s true that these are issues that the state of California, through its misguided desire to please the religious, created, I really doubt that there will be a problem here. I don’t express doubt because I don’t think these are legitimate issues. I express my doubts because I’m betting that these forms will be treated as nothing more than a piece of paper and that, once the parents check the religious exemption box and sign the form, no further attention will be paid to it for anything other than vaccines. I’d really love to see a school official challenge such parents if their child ever needs a note from a doctor or the child becomes ill or injured at school, forcing the parent to acknowledge that little Timmy will be taken to the doctor after all, but I know it will never happen. Similarly, I’d love to see a school, the first time one of these children are taken to the emergency room or hospitalized for any reason, go to the parents and ask them about their so-called “religious beliefs” preventing them from utilizing modern medicine—after the child recovers, of course.

AB 2109 was a good idea, and it could have worked simply by making it a little more difficult for parents to claim an philosophical exemption—and it did. However, it more than neutered that requirement by allowing quacks (naturopaths, many of whom are antivaccine) to be health care providers on par with physicians, PAs, NPs, and DOs who provide vaccine counseling before signing the exemption form. As if that weren’t enough, Governor Brown, privileging religious beliefs above all else, finished the neutering by instructing the CDPH to add this inane checkbox, with a statement that is so vague, so obviously not well-thought out, and that is likely to be fraught with unintended consequences, that California might not have even bothered to pass AB 2109 in the first place. It’s so obviously against the intent of the law, that one wonders why the CDPH obeyed the governor; it almost certainly doesn’t have to. The law is the law, after all, whatever the governor said in his signing statement. By kowtowing to extreme religious beliefs the governor and the CDPH have betrayed all of those who fought so hard to get AB 2109 passed. Worse, they have betrayed the children of the state of California.