California Journal
Robin Abcarian Commentary, news and analysis
California Journal

Fight against vaccination bill finds ally in ACLU

The ACLU says vaccination bill could violate state Constitution, which mandates a right to public education

The anti-vaccine moms began lining up in the hall outside the state Senate hearing room at 7 a.m. on Wednesday, two hours before the doors opened. Some had babies strapped to their chests, others sat on the floor with small children.

They had arrived from Oakland, from Santa Cruz and from Sonoma. They were protest veterans now, having trekked to the Capitol two, three, four other times to raise their voices against a law that would bar most unvaccinated children from classrooms. Most wore red.

"I'm so emotional about the possibility that this is over and I can finally rest," one said.

"My daughter asked, 'Mommy, are you going to fight the Evil Empire again today?' " said another.

"I was going to post on Facebook, 'Whose sex life is gone?' " joked a third.

The moms laughed, knowingly.

"If they kill the bill, we have closure," said Oakland chiropractor Eileen Karpfinger, a mother of four. "If not we keep going."

There was no closure for the anti-vaccine moms, who cling to the belief, despite all science to the contrary, that vaccines can cause autism, diabetes, rheumatoid arthritis, seizure disorders, behavior disorders, food allergies, tics, sudden infant death syndrome and cancer.

The bill they came to defeat would end "personal belief exemptions" and require almost all California children attending public or private school to be immunized. Children with legitimate medical reasons, such as compromised immune systems due to chemotherapy, are excused. So are home-schooled children.

After the bill was amended to include multiple-family home schools and public school independent study programs in the definition of home-schooling, it passed easily out of committee.

The moms, who were wary of me but willing to make their case, will be back at the Capitol next week when the law is taken up by the Senate Judiciary Committee.

This time, they will have an unexpected ally: the ACLU.

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Earlier this month, an attorney for the venerable civil rights group wrote a letter to the bill's two Democratic authors, Richard Pan of Sacramento and Ben Allen of Santa Monica, raising alarms about the bill's constitutionality.

Under the California Constitution, wrote Kevin G. Baker, legislative director of the ACLU of California's Center for Advocacy and Policy, children have the right to a public education.

The ACLU does not take issue with the wisdom of vaccinating children against the full range of childhood diseases, nor with the fact that serious public health risks can occur when vaccination rates fall below what is required for herd immunity. But, Baker wrote, the bill does not explain why the state has a "compelling interest" in requiring that all students in every school be vaccinated.

This, of course, dovetails neatly with the anti-vaccine camp's overheated accusations that the bill will create a "police state." "If SB 277 becomes law," anti-vaccine activist Laura Hayes said at an April 8 rally at the Capitol, "police will be required to forcibly take our children, against our will, to be force-vaccinated."

This is not exactly what the ACLU is suggesting.

"Because of the important, fundamental right to education, we think that there just needs to be some very thoughtful consideration given to how to solve this problem," Baker said. "We're not solving it with this broad brush approach that keeps kids out of school."

In his letter, Baker suggested that a 16-month-old state law, AB 2109, should be given more of a chance to work before taking such a drastic step. That legislation requires health professionals to discuss the benefits and risks of immunization with parents before they are allowed to file belief exemptions, and it has already led to an increase in vaccination rates.

Also, Baker said, sometimes schools appear to have lower vaccination rates because they are lax about data-keeping and reporting, or because they lack staff. "Maybe we should put some teeth in this obligation to report to see if we really have a problem, and if so, where it is."

Lawmakers have not responded. "I was hoping for more of a dialogue," Baker said, "but they think they've got the moral high ground here and they intend to just push this through."

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On Tuesday, Dr. Richard Pan was behind the wheel of his Lexus SUV, barreling back to the Capitol from a news conference where he had just introduced elderly survivors of polio at a medical society museum that exhibits outdated equipment such as an iron lung. The low-key event was organized as a TV-friendly response to all the anti-vaccination protests.

"Please, please get your children vaccinated," said Lynn Lane, 63, who contracted polio at the age of 5. In 2009, her 24-year-old daughter died of swine flu about three months before a vaccine became available. "She went from perfectly healthy to gone in 20 days."

Pan, a pediatrician who still sees patients in a low-income clinic on Fridays, told me about a devastating measles outbreak he witnessed 24 years ago in Pennsylvania when he was a medical student. Nine children died; none had been vaccinated.

"I thought never to see a case of measles in my career," he said. "People weren't getting it anymore."

But that's not the case, as the world discovered last year, when 147 people were stricken with measles spread by visitors to Disneyland. The majority of them were unvaccinated, and, especially alarming, some were young adults.

"We are building this unvaccinated population that is getting bigger by the year," Pan said. "We have to get our vaccination rates back up in our schools and our communities and the most effective way is to catch kids before they enter school."

Pan's bill most assuredly has the potential to inflict chaos on families who have taken advantage of the protection provided by children who are fully immunized. If the bill passes, vaccine-resistant parents will have to home-school their children.

Although I take the ACLU's points, I believe the state does indeed have a compelling interest here.

Schools should have the right to ban unvaccinated children. One kid's civil liberty cannot trump another's health and safety.

robin.abcarian@latimes.com

Twitter: @abcarianLAT

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