senate Bill S2337

2009-2010 Legislative Session

Enacts the "philosophical exemption to immunizations act"

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Archive: Last Bill Status - In Committee

  • Introduced
  • In Committee
  • On Floor Calendar
    • Passed Senate
    • Passed Assembly
  • Delivered to Governor
  • Signed/Vetoed by Governor

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Jan 06, 2010 referred to health
Feb 18, 2009 referred to health

S2337 - Bill Details

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Law Section:
Public Health Law

S2337 - Bill Texts

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An act to amend the public health law, in relation to enacting the
"philosophical exemption to immunizations act"

This Act establishes a new exemption status based on personal
objections of a philosophic nature.

Subdivision 6 of sections 2164 and 2165 is amended to provide a means
for applicants who declare "personal objections" to immunization to be
exempt, utilizing the existing form originally instituted in this
subdivision. This consent form is to be amended to accommodate an
affirmation of "personal objections" to immunization, as described
fully in the bill.

The phrase, "or other evidence of compliance as noted in this
section", is added to ยง 2164(8-a) for clarification of the statute, as
described fully in the bill.

Subdivision 9 of sections 2164 and 2165 is amended to introduce the
"personal objection" waiver, alongside the existing medical and
religious waivers. The phrase, "of immunization, medical tests and
treatments" is also added for clarity and consistency, as described
fully in the bill.

Legislative Background:

Currently, parents of children in school must show proof of
vaccination of legislatively mandated vaccines, unless they have an
approved religious or medical waiver. To obtain religious waivers,
applicants are required to demonstrate their religiousness to a level
acceptable to the school. Claimants are asked to submit to myriad and
lengthy verbal affidavits or written questionnaires that delve broadly
into their personal affairs to an extent unanticipated by the
legislature at the time the section was amended in 1989.

Recognizing that this practice impinges on First Amendment
protections, regulators have been careful not to specify a mechanism
for schools to execute this function. Claimants feel they are denied
the exemption unfairly, based upon determinations having no apparent
uniform criteria. This has generated grievances that the process does
not operate in an equitable manner. The intrusive nature of the
inquiry, has led to widespread appeals to the Commissioner, and
litigation in the state and federal circuits.

Alternatively, to be exempted medically, a licensed physician or nurse
practitioner (for post-secondary school students) must certify a
vaccine may be detrimental to health, and stipulates when it will no
longer remain so.

However, in practice, a physician's determinations are subject to
oversight by the Department of Health (DOH), which employs
inappropriate standards. The DOH compares certifications from
physicians to broad-based, pre-established, vaccination product
recommendations from the CDC's Advisory Committee on Immunization
Practices (ACIP) - a non-legally binding government committee, and the
American Academy of Pediatrics Committee on Infectious Diseases (AAP)
- a private, special interest medical organization.

These vaccine usage recommendations are a composite of, (a) the
Vaccine Injury Table maintained by Health and Human Resources, that
sets strict legal rules for establishing causality for the federal
vaccine injury compensation program, and (b) safety studies sponsored
by vaccine manufacturers. Ironically, ACIP's recommendations appear
lax compared to the cautious recommendations written on the product
inserts, intended to protect manufacturers from liability. Indeed, the
vaccine approval and licensing process, as operated by the FDA and
ACIP, actually functions primarily to release federal funds to buy
vaccines from the manufacturers. (1)

Physicians and nurse practitioners are aware that they may become
subjects of investigation by the DOH or suffer sanctions and penalties
from their licensing boards, if they are seen as departing from these
official policy recommendations. Yet, these broad-based
recommendations use restrictive criteria for determining vaccine
contraindications, and often fall outside the parameters that a
personal-care clinician may rightfully deem an unacceptable risk to
health, based upon his/her medical training, experience, patient's
medical and family history, and medical conditions unique or peculiar
to the patient.

Safety Concerns:

Autism and autoimmune diseases have soared to epidemic proportions in
the U.S. and the developed world. The rates of type-1 diabetes and
asthma in children have doubled since 1980 in places where air
pollution has sharply declined. (2) Debates that are currently raging
within medical circles concerning the role that vaccinations may play
in autistic spectrum disorders, learning disabilities, chronic
neurological and autoimmune diseases may be indicative that medical
consensus is waning on vaccine recommendations.

Today, a child receives about 39 doses of vaccines by the time he's 6
years-old. By the time he's finished primary school, he would have
received roughly four times that many doses. Over 200 new genetically
engineered vaccines are now under development, and are candidates for
mandates. What most physicians are concerned about is protecting the
most vulnerable children.

The aforementioned concerns prompted the 4,000 members of the
Association of American Physicians and Surgeons (AAPS) - a
professional association of physicians founded in 1943 - to vote on
November 2000, at their 57th Annual Meeting in St. Louis to pass a
resolution calling for an end to all state mandatory childhood
vaccines. The resolution passed without a single "no" vote.
(Resolution and mandatory vaccine fact sheet posted at (3)

But rescinding vaccination mandates is not a measure that has to be
taken. This bill provides a prudent and equitable alternative, proven
so in 18 other states (see below). While permitting a means for
parents to opt out, existing safeguards remain in place - authorized
in section 2164, as well as Health and Education Law (4) - for
educating the public, surveying for outbreaks of communicable
diseases, and requiring schools to exclude susceptibles, inform the
DOH, and inform other parents of children attending the school, in
such an event. A completed consent form provided under subdivision 6 -
amended to accommodate an affirmation of "personal objections" to
immunization - will properly distinguish a parent who is acting
responsibly, from one who may be negligent.

Restricting exemptions in order to maintain, "herd immunity" isn't
justified. Herd immunity is maintained with a "threshold" vaccine
coverage of 80-90%. But according to 1994-1995 data from 40 states
reported to the CDC, about 0.5% of parents in the U.S. file for
vaccination exemptions, citing medical, religious or philosophical
reasons, although the number is as high as 2.5% in some states.
Nevertheless, herd immunity is supposed to indirectly protect those
who are not vaccinated from infection (not necessarily disease).
Therefore, those choosing to be vaccinated are theoretically protected
from disease, whether vaccine coverage achieves the required threshold
or not.

Parental Involvement:

With the aforementioned restrictions placed on obtaining religious and
medical waivers, this bill - herein referred to as the "Philosophical
Exemption Act" - essentially permits parental involvement in medical
decisions involving their children. This is actually in accord with
the CDC's own statements: "...the goal that all parties share
regarding vaccine risk communication should be informed decision
making. Consent for vaccination is truly "informed" when the members
of the public know the risks and benefits and make voluntary
decisions." (5) "Voluntary decisions" and "informed decisions" implies
there's freedom to make those decisions. This bill affords parents the
opportunity to act on their decisions.

In recent years, there has been increased public awareness of apparent
vaccine-associated injuries and diseases. People now have access - via
the Internet - to medical journals and public health bulletins.
Parents observing permanent changes in their children just hours or
days following vaccination are numbering in the tens of thousands, and
are questioning the official position that there are no causative
associations. Some parents believe that the high level of doses
currently mandated for school may be diminishing the overall benefits
of vaccination. Others - in consultation with their family physicians
- have concluded that the "one-size-fits-all" vaccination schedule is
inappropriate for their children. Many of these parents are in fact
doctors, health professionals, lawyers, and teachers themselves.

Surprisingly, based on the current ACIP vaccine recommendations, a
student in NYS cannot qualify for the medical waiver for a particular
vaccine based solely on evidence that it produced severe reactions in
his siblings, or for other vaccines that contain any of the same
preservatives, adjuvants, neutralizers, carrying agents, and
extracting agents - such as thimerosal (a mercury derivative),
benzethonium chloride, methyl paraben, phenol red, pyridene, ethanol,
ethylene chlorophyrin, aluminum hydroxide, aluminum hydrochloride,
sodium hydroxide, aluminum sulfate, aluminum potassium sulfate,
sorbitol, hydrolyzed gelatin, carbonic acid, thiosalicyclic acid, or
formaldehyde (in the form of formalin). Indeed, there exists parents
with one or more children who are autistic, or otherwise
neurologically impaired from vaccination, who are not allowed the
medical exemption for those children, or other siblings.

In observing the strenuous lobbying efforts to mandate the
controversial (re: safety and efficacy) hepatitis-b vaccine - for
children who are at low-risk for the disease, and the precipitous
approval of the dangerous rotavirus vaccine - subsequently withdrawn
from the market, many parents sense a growing fanaticism has taken
hold of public health officials, who appear too eager to maximize
vaccination rates at any cost - not solely to prevent disease, but
also to maximize receipt of federal grants that are directly matched
to state vaccination levels, as well as to sustain and vindicate the
efficacy of the medical paradigm that has become the cornerstone of
their profession.

Consequently, some parents have taken an active role in their family's
health. So in addition to some aspects of allopathic medicine, some
parents also include homeopathy, anthroposophy, or eastern medicine as
an integral part of their overall health strategies. Others have
adopted principles of Natural Hygiene, among which includes the safe
and effective reliance on fasting instead of antipyretic and
antipruritic drugs - at the onset of catarrhal diseases. As evidence
mounts that vaccines solely stimulate humoral immunity, and suppress
cell-mediated immunity (that which prevents infectious diseases) (6)
these people are seeking answers to prohlyaxis in other ways.

Apparently, these alternatives are yielding good results. For example,
lifestyle factors associated with anthroposophy - characterized by
restricted use of antibiotics, few vaccinations, and a diet rich in
live lactobacilli - may lessen the risk of atopy in childhood. (7)
Conversely, disease outbreaks are known to occur amid highly
vaccinated populations - and often disproportionately among those
vaccinated. Also satisfactory long-term studies on vaccine safety are
yet to be performed (Appendix 1).

Perhaps parents should no longer be stigmatized for their decision not
to vaccinate. By definition, parents making these choices are
responsible and conscientious, and their names should no longer be
listed in 'watch' registries of child protection services for either
medical, or educational neglect (if rejection of waiver leads to
children being excluded from school).

The Philosophical Exemption:

Currently, all states except West Virginia and Mississippi have
religious exemptions. Philosophic-type exemptions are allowed in 18
states: Arizona, California, Colorado, Idaho, Indiana, Louisiana,
Maine, Michigan, Minnesota, New Mexico, N. Dakota, Ohio, Oklahoma,
Rhode Island, Utah, Vermont, Washington, Wisconsin. At the time of
this writing, a House and Senate bill in the Missouri legislature, and
a Senate bill in West Virginia, if enacted, would establish
philosophic-type waivers in those states.

Most states that have philosophic-type waivers also have religious
waivers. However, in NYS, where only a religious waiver is allowed,
regulations specifically require school officials to distinguish
between what is 'philosophical' and what is 'religious'. Litigation
most often involves the state arguing that parents hold 'personal
philosophies', rather than 'legitimate' religious beliefs.

All states allow medical waivers based on a risk to health. This is
not surprising, given that the basis for the mandates themselves
derive from allopathic medicine. However, what might be surprising
that while the right of the state to impose the mandates has been
upheld since 1905 in "Jacobsen v. Commonwealth of Massachusetts", (8)
the actual efficacy of vaccination as a public health measure to
justify state mandates has never been reviewed by the judiciary.

That was the basis for the decision in Viemeister v. White (1904), in
which New York State's compulsory vaccination law against smallpox was
upheld. From "Viemeister", the court affirmed the legislative mandate,
based on "the common belief of the people" that vaccination fulfills
its promise, "whether it does in fact or not." (9) The U.S. Supreme
Court followed suit a year later in "Jacobsen", using similar phrases
"this is the common belief of the people of the state" in upholding
the state's mandatory vaccination statute. Thereafter, courts
generally made allowances for exemptions based on personal and
religious freedoms, and parental rights, but restricted them with
respect to countervailing factors: protection of the community from
communicable diseases and protections of minor children. (10)

The grounds for Viemeister and Jacobsen decisions can be traced to the
U.S. Constitution. The creation by the legislature of the coequal
executive and judicial branches laid the foundation for the
establishment of an aristocratic class: A hierarchical system emerged
which depended on experts whose authority had to be taken as given.
In particular, the rise of the status of medical doctors in America
was acknowledged through the acceptance by the U.S. Supreme Court of
the doctrine of "high medical authority". (11) in "Jacobsen" and its
progeny, the doctrine of high medical authority is used to preclude
new countervailing medical evidence, least of all alternative
paradigms of health and disease. Thus describes the root of the
problem in expanding freedoms to dissent from medical mandates.

However, the grounds for philosophical dissent are also rooted in the
Constitution. It provides the right to hold views different from the
majority, and the right to act conscientiously in accordance with
those views. Certainly, a pluralistic society flourishes if the views
of the minority are afforded some protection. The theme of the
Philosophical Exemption Act is the acknowledgment that a system of
health care has emerged dominant in the society, and that rightly or
wrongly, the government has chosen to promote it through legal
mandates. However, just as the government is restricted from
establishing religion, it can be argued in the abstract, that it is
not the role of government to sanction one theory of health and
disease over any other. Indeed, some of the Founders of our Republic
wanted to include a guarantee for medical freedom in Article I of the
Constitution, as had been provided for civil and religious freedoms.
But the efforts were blocked by the established medical interests at
the time. (Appendix 2)

Nevertheless, a legislated philosophical exemption provides a rightful
means for an individual to decline and abstain from medical mandates.
It's a guarantee that no government sanctioned paradigm or system of
beliefs will retain absolute authority over an individual's freedom of

Religious and Philosophical Beliefs - Discussion:

As noted earlier, some of our nation's Founders thought that some
secular beliefs and expressions (i.e., dissent from compulsory
medicine) should be extended the same Constitutional protections as
religious beliefs. Indeed, the coexistence of both religious and
philosophical-type waivers from vaccination in 18 states (currently)
tends to validate that view. But to what extent has the distinction
between 'religious' and 'philosophic' become blurred as it relates to
the right to decide, and act upon ones beliefs?

Let us consider a hypothetical example of a belief: suppose a tenet of
a religion was to avoid eating meat and grains in the same meal.
Apparently, a thousand years ago, adherents to this religion realized
that consuming meat and coarse grains together led to indigestion.
They believed its discomfort arose because God had forbade this
dietary mixture. A thousand years later, modern science uncovers a
physiological explanation for the discomfort: starch-based foods
require an alkaline medium in the stomach for it to be digested
properly. But the meat portion of the food triggers the secretions of
pepsin, an acid which lowers the pH and disrupts the digestion of the
starch portion of the meal. The result is that some of the undigested
starch decomposes via fermentation, yielding alcohol and methane gas,
causing indigestion and discomfort. Despite the after-the-fact
scientific explanation that became available later, this dietary
decree would likely remain a recognized religious tenet to this day.
But the opposite is not likely: a modern-day admonition against this
diet would not be accepted as a religious tenet today.

Is it because this dietary rule is introduced in the modern era? Are
beliefs considered religious only if they originated long ago?
Perhaps they should not. What was thought to be discomforting 1000
years ago is still discomforting today.

Or is it because this dietary rule is now "colored" with a scientific
explanation to account for the discomfort engendered by not adhering
to the diet? Possibly. But it wouldn't affect the strength of
conviction: An atheist may be just as certain that the airplane he's
traveling in won't crash-based on his "faith" in technology - as a
religious person may be - based on his faith in his god.

Religious beliefs entail a faith in God, or absolutes. Philosophical
beliefs might include God-or "nature"-but would essentially be based
on science-which describes how nature works. But functionally-in
degree of convictions, certainty and expectations-they appear to be no
different. So, as science endeavors to reduce the number of absolutes,
shouldn't people have the right to make decisions based on those "less
than absolute" aspects of life-like whether or not vaccination is
appropriate for their children? For example, courts have restricted
devoutly religious parents from withholding life-saving medical
treatments from their children. Apparently today, society approves of
religious sentiments only when they don't involve "life-and-death"
issues, like a victorious baseball pitcher thanking God after the
game-deemed quaint, but harmless by the public. But deciding whether
or not to vaccinate is a serious medical decision. Should religious
beliefs be the sole means available for parents to decline

The definition of religion in the Random House Dictionary is: "Concern
over what exists beyond the visible world, differentiated from
philosophy in that it operates through "faith or intuition", rather
than reason." A millennium ago, faith and intuition' explained most
aspects of life. Today, reason and science have supplanted much of
that. But while we are now left with less faith and are provided more
science, straight facts about vaccination appear to have a minor
influence on most parents. Doctors often complain that all the facts
they bring to bear on some parents fails to persuade them to
vaccinate. That is because facts must conform to people's already
developed system of beliefs-i.e., their overall philosophy of life,
much of which includes aspects of "faith and intuition". If new facts
don't conform to people's belief systems, then it's the facts that are
rejected, and not their core belief systems. How else can anything
other than strongly held, insurmountable core beliefs allow parents to
face public ostracism, by standing against such a widely-supported
public health measure?

A Natural Hygienist, for example, believes that disease is not an
inevitable part of life; that it depends on how you live and eat, and
not who coughs in your direction. Or, as Pidoux said to Pasteur's
annoyance-"Disease is born of us and in us". Conversely, doctors are
taught that disease is more a function of the germ, than the health of
the host. Their preference for artificial prophylaxis (vaccination) is
a manifestation of their beliefs, and the facts that they subsequently
accept or reject is directly influenced by the medical theory they
learned in school.

Although we don't admit it, we act on our beliefs. "Mere" facts are
either accepted or rejected.

In March of 2001, in taking notice of the state's claim that a
parent's objection to vaccination was based on medical aspects, and
not religious, the Wyoming Supreme Court asked rhetorically, "If
parents have not consistently expressed those religious beliefs over
time, should they be denied an exemption? Can parents have beliefs
that are both philosophical and religious without disqualifying their
exemption request?" Acknowledging the State's concern with "improper
evasion" of the vaccination law, the Court wrote, "we are confident in
our presumption that parents act in the best interest of their
children's physical, as well as their spiritual health."

S.3031/A.5468 of 2007-08 *Senate Health Committee
S.305 of 2005-06 (Senate Health Committee)
S.695 of 2003-04 (Senate Health Committee)
S.7111 of 2001-02

If enacted, funds previously spent on screening applicants for the
religious exemption and possible appeals, would be retained by the
Department of Education. Similarly, local school districts would not
face litigation expenses.

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