Senate Bill S1331

                                BILL NUMBER:S1331

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

PURPOSE OR GENERAL IDEA OF BILL:
This Act establishes
a new exemption status based on personal objections of a philosophic
nature.

SUMMARY OF SPECIFIC PROVISIONS:
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 § 2l64(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.

JUSTIFICATION:
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, which 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-l 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 www.aapsonline.org). (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, adjutants, 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 1 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
choice.

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, modem 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 modem-day admonition against this diet would
not be accepted as a religious tenet today.

Is it because this dietary rule is introduced in the modem 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 vaccination?

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 200l, 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."

LEGISLATIVE HISTORY:
2009-10 - S.2377/A.4886
2007/08 - S.3031/A.5468
2005/06 - S.305
2003/04 - S.695/A.10326
2001/02 - S.7111


FISCAL IMPLICATIONS:
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.

EFFECTIVE DATE:
Immediate.