We speak frequently of our privacy, but seldom of our freedom though they are one and the same. We call ourselves consumers—thus defining our significance by what we buy—but in fact, we are citizens. A consumer interested in privacy looks at California Senate Bill 277, which removes all but medical exemptions for childhood vaccinations, in the light of his or her own protection from unvaccinated children. But, a citizen, interested in personal liberty, looks at this bill in light of protection from abuse of power and has concerns about conflict of interest.
CONFLICT OF INTEREST
I posted a link on my Facebook Page to an article about the $92,000 donated to California Senator Richard Pan, the sponsor of SB 277, and someone commented that conflict of interest didn’t matter if it benefitted society. While vaccines do provide a benefit to society, it is naive to ignore that they are also commercial products which realize tremendous profits when they are recommended as childhood vaccines. For example, Merck, the sole manufacturer of the MMR vaccine, reported $18.2 billion in US revenues in 2014 and $42.2 billion worldwide.
In Robert F. Kennedy, Jr’s speech at the California state house, he talked about the five barriers that usually historically stand between what he calls rapacious industry and the public—children in particular:
- Regulatory Bodies
- The Press
According to Kennedy, SB 277 removes all five of these checks and balances from vaccines.
Robert F. Kennedy Jr. at The California State Capitol on April 8, 2015
In regards to government, we know from recent studies that money talks. A recent University of California at Berkeley study found that a majority of the American public actually have little influence over the policies our government adopts. Specifically, Congress and their staff made themselves available for meetings with political donors three to four times more often than to constituents. In fact, according to a Princeton study, which doubts if America is still a democracy:
“… policymaking is dominated by powerful business organizations and a small number of affluent Americans.”
As the number one group lobbying Congress, Big Pharma spends twice as much each year on lobbying as the oil and gas industry and four times as much as the defense industry. according to Kennedy. Government can not be expected to be a barrier to avarice in industry.
Lawyers cannot provide a barrier because they can not sue for vaccine damages outside of the “Vaccine Court.” The National Childhood Vaccine Injury Act of 1986 established an office of special masters within the United States Court of Federal Claims that determines who will receive compensation. By 2012, nearly $2.5 billion dollars had been awarded to vaccine victims for their catastrophic vaccine injuries, although two out of three applicants were denied compensation.
The CDC suffered a crisis of confidence in the late 1990s and early 2000s that reverberates today. The crisis was caused by concrete events that eroded parents confidence in the vaccine program mostly between 1997 and 2001. Here are some highlights:
- 1991: CDC recommended that all infants receive the first dose of the hepatitis B vaccine before discharge from the hospital.
- 1997: The FDA Modernization Act of 1997 called for the FDA to review and assess the risk of all mercury-containing food and drugs so the FDA asked US vaccine manufacturers to provide information about the thimerosal content of their preparations. On December 19, 1997, the EPA released the “Mercury Study Report to Congress,” in which a reference dose of 0.1 microgram/kg./day was set.
- 1998: France became the first country to end hepatitis B vaccination requirements for schoolchildren after reports that many children were developing chronic arthritis and symptoms resembling multiple sclerosis following the administration of hepatitis B vaccine.
- August 31,1998: FDA licensed the rotavirus vaccine.
- November 1998: The American Academy of Pediatrics (AAP), CDC, and the A Committee on Immunization Practices (ACIP) recommended rotavirus vaccine for all infants.
- May 18, 1999: The House subcommittee on “Criminal Justice, Drug Policy, and Human Resources held a hearing on “Hepatitis B Vaccine: Helping or Hurting Public Policy,” chaired by John Mica (R-FL). It was reported at the hearing that the US government database showed 3,080 hepatitis B vaccine adverse events, including 47 deaths. These reactions outnumbered the actual hepatitis cases 20 to one for the same period.
- May 19, 1999: Following the hearing, the AAP and CDC suspended the hepatitis B vaccine for low-risk newborns.
- July 9, 1999: A joint statement of the United States Health Service (USHS) and the AAP called for a rollback of the universal recommendation that all newborn infants receive hepatitis B vaccine at birth and for a delay in vaccination of premature or underweight babies. It also called for the elimination of mercury in hepatitis B and other childhood vaccines.
- July 15 or 16, 1999: CDC withdrew its recommendation of the rotavirus vaccine due to 15 cases of bowel obstruction reported to the Vaccine Adverse Events Reporting System (VAERS) between September 1, 1998 and July 7, 1999. During this time 1.5 million doses or rotavirus were administered.
- July 17, 1999: EPA notified vaccine experts that if infants younger than six months receive a number of thimerosal containing vaccines at one time, the mercury levels might exceed the EPA precautionary limit for mercury exposure. The FDA requested that vaccine manufacturers phase In a replacement for the mercury-based preservative, thimerosal, commonly used in vaccines and biologics.
- July 28,1999: The Rotavirus vaccine was added to the Vaccine Injury Table of the National Vaccine Injury Compensation Program (NVICP).
- February 2000: A study of Vaccine Safety Data (VSD) reviewed at the Simpsonwood Retreat Center and presented by the CDC at the Congressional hearing: “Mercury in Medicine – Are We Taking Unnecessary Risks?” on July 18, 2000 demonstrated “ an exposure of more than 62.5 micrograms of mercury within the first three months of life significantly increases a child’s risk of developing neurodevelopmental disorders such as speech and language delays, autism, stuttering, and attention deficit disorder.” The study indicated that children at this exposure level are more than twice as likely (2.48) to develop autism as those not exposed. [legally, 2.0 or higher is considered causative]. Following their initial review, the CDC revised the study data to include undiagnosed younger infants, for example, and used “new” calculations in the second and third drafts of this report to achieve an exposure level of less than 2.0.
- July 15, 2001: The Institute of Medicine’s (IOM) Immunization Safety Review Committee met on the topic of thimerosal containing vaccines and neurodevelopmental outcomes. They recognized a need for diverse and extensive research into the issue and recommended the use of thimerosal-free vaccines. In its report, the IOM acknowledged that the link between vaccines and autism was “biologically plausible.” This link was rejected, however, in 2004 when the CDC instructed the IOM to review only epidemiological studies.
In addition to the CDC, its The Advisory Committee on Immunization Practices (ACIP)—a group of medical and public health experts that develop vaccination recommendations—has come under criticism for its insular composition and conflicts of interest. The ACIP is comprised of 14 MDs, one RN, and one lay person, who represents the March of Dimes. In a scathing December 2009 report, “CDC’s Ethics Programs for Special Government Employees on Federal Advisory Committee,” the Inspector General found that:
- For almost all special Government employees, CDC did not ensure that financial disclosure forms were complete in 2007.
- CDC did not identify or resolve potential conflicts of interest for 64% of special Government employees in 2007.
- 15% of special Government employees did not comply with ethics requirements during committee meetings in 2007.
CDC did not ensure that 41% of special Government employees received required ethics training in 2007.
According to Corporate Control of the Media:
The original 1934 Communications Act severely restricted the number of radio stations a single firm could own in a given broadcasting market, as well as the total number of stations a firm could own across markets. The idea behind these restrictions was quite simple: concentrations of ownership would threaten the public functions of the airways, reduce local responsiveness and diversity.
In 1996, the Telecommunications Act lifted nearly all restriction and as a result, media ownership has become so concentrated that it threatens democracy. Media critic Jenney Toomey talks about the results of this change:
“Even more bleak is the picture at the local level, where oligopolies control almost every market. Virtually every local market is dominated by four firms controlling 70 percent of market share or greater. In smaller markets, consolidation is more extreme. The largest four firms in most small markets control 90 percent of market share or more.”
Owners of mass media companies have the power to censor the information covered and tend to report on the interests of the wealthy and the corporate elite. Because these companies are dependent on advertising, they are wary of offending advertisers and tend to produce content that appeals to the audience of their advertisers.
Not surprisingly, the pharmaceutical industry is the biggest advertiser on television, on the radio, and in newspapers. The industry spends between $3.4 and $5.6 billion in advertising on network news, according to Kennedy. Because of conflicts of interest inherent in the new media monopolies, the press can not be counted on to provide objective or critical coverage of the pharmaceutical industry.
By not allowing religious or philosophical exemptions to vaccines, California seeks to remove the authority of the parent and replace it with the authority of the medical profession. However, regardless of whether or not autism is caused by vaccines, no vaccine is 100% safe and some children are more sensitive to vaccines than others.
The National Vaccine Injury Act of 1986 provides for these parents. It assumes that there will be some vaccine adverse effects, perhaps because the act was initiated by parents whose own children had been damaged by the DPT vaccine. The Act established the National Vaccine Injury Compensation Program (NVICP) to administer the compensation program and to keep track of vaccine adverse effects through the Vaccine Adverse Effects Reporting System (VAERS).
According to NVICP,
“From 2006 to 2014, over 2.5 billion doses of covered vaccines were distributed in the U.S. according to the CDC. 2,975 claims were adjudicated by the Court for claims filed in this time period and of those 1,876 were compensated. This means for every 1 million doses of vaccine that were distributed, 1 individual was compensated.
Since 1988, over 16,038 claims have been filed with the VICP. Over that 27 year time period, 14,062 claims have been adjudicated, with 4,150 of these determined to be compensable, while 9,912 were dismissed. Total compensation paid over the life of the program is approximately $3.18 billion.”
Vaccine injured children are real and so are their parents. One of these parents, attorney George Fatheree, testified before the California Assembly Health Committee regarding SB 277.
“This law is in direct conflict with federal education law; SB 277, while well-intentioned, is unnecessary. It’s misguided in that it’s not specifically targeting the pockets where problems have been identified, and it comes at a tremendous cost to the rights of students to receive education.” George Fatheree
LAWYERS OPPOSED TO CALIFORNIA SB 277
All this is fine and good, but SB 277 has passed and now what? Now, the legal challenges begin. In their letter to California state legislators, The Lawyers Opposed to SB 277 cite several reasons why the bill is unconstitutional under both the United States and California constitutions:
- There is no compelling reason to disrupt the current California legal framework in which exemptions to vaccination, both religious and philosophical, are respected and preserved.
- Public acceptance of vaccination is not in question, and vaccination uptake rates are high and stable.
- There exists no compelling public health emergency that justifies the radical change to California law contained in SB 277
- The global standard is that prior, free and informed consent must apply to all medical interventions, including preventive treatments like vaccination. This standard has been endorsed by members of the United Nations Educational, Scientific and Cultural Organization (UNESCO), including the United States, and is the hallmark of a rational approach to all medical interventions in civil society.
- California’s Constitution guarantees the right to public education.
- Exclusion of children from school under SB 277, would violate the Federal Individuals with Disabilities Education Act (IDEA).
- The United States Constitution protects the right of privacy and religious freedom. Under the Fourteenth Amendment to the United States Constitution, no state may “deprive a person of life, liberty or property without due process of law.”
- The United States Supreme Court extends that protection to the right to refuse unwanted medical interventions.
- Religious exemptions are permissible under the Free Exercise Clause of the First Amendment.
- Medical science cannot explain how or when vaccines cause injury. There is no way of knowing in advance who might suffer harm from these products. Because of this incomplete knowledge, individuals have a right to choose whether or not they consent to vaccination, a right they have with any other medical procedure.
THE YALE LAW REVIEW
The Yale Journal of Health Policy, Law and Ethics has also weighed in on vaccine mandates in the 2013 report on “Compulsory Vaccination, the Constitution, and the Hepatitis B Mandate for Infants and Young Children” by Mary Holland.
- In Jacobson v. Massachusetts (1905), the US Supreme Court “upheld a mandate for the entire population, in the context of an airborne [smallpox] epidemic emergency, with a relatively small monetary fine for non-compliance.” By contrast, today’s vaccine mandates are imposed on just children, as a preventative measure and at penalty of not going to school.
- According to Lawrence Gostin, a public health law authority, Jacobson requires public health regulations to have five elements to be constitutional: public health necessity, reasonable means, proportionality. harm avoidance, and fairness.
- The Court was clear: a mandate is permissible in “an emergency,” when there was “imminent danger,” when “an epidemic of disease . . . threatens the safety of [society’s] members,” For a law to be constitutional under a strict scrutiny test, the highest standard, there must be a compelling governmental interest and the law must be narrowly tailored to achieve its end.
- In 1922, the Supreme Court held in Zucht v. King that a smallpox vaccination mandate for school admission was a valid exercise of the police power. Zucht shifted Jacobson’s paradigm by upholding a mandate exclusively for children, a subpopulation, and by affirming the validity of a preventive mandate for a disease not in circulation. By the mid-1950s, it was arguably settled that school vaccination mandates were presumptively valid.
- The Courts have expanded the original Jacobson precedent dramatically and have used Jacobson to justify results that the original decision did not condone, for example, vaccination mandates exclusively for children with no imminent disease outbreaks and with serious penalties for noncompliance. Punishments include loss of education, social isolation, parents’ loss of custodial rights, child-neglect sanctions against parents, and, even, forced vaccination. In both Jacobson and Zucht, the Supreme Court upheld mandates for one vaccine during airborne epidemics.
The CDC’s official definition of an epidemic is:
“The occurrence of more cases of disease than expected in a given area or among a specific group of people over a particular period of time.”
The word is often used interchangeably with outbreak and, in terms of the flu, the difference between them is the percentage of overall deaths caused by the disease. If the number of flu deaths tops 7.7 %, it’s an epidemic. For diseases that cause a statistically insignificant number of deaths, like the measles, the CDC often uses incidence data instead of fatality percentages.
The United States experienced a record number of measles cases during 2014, with 668 cases from 27 states reported to CDC’s National Center for Immunization and Respiratory Diseases (NCIRD). This is the greatest number of cases since measles elimination was documented in the U.S. in 2000. A total of 178 cases were reported between January 1 and June 26, 2015.
Between 1987 and 1992, there were 259 measles-related deaths in the US overall. The death rate dropped dramatically between 1993 and 1999, during which time only one acute measles related death was reported. The last reported deaths from measles were in 2003. One was a 13-year-old child who had chronic granulomatous disease, and received a bone marrow transplant in October 2002. The second measles-related death was in a 75-year-old international traveler infected in Israel. By 2004, measles was declared no longer endemic in the US.
The insignificant number of deaths from measles, the constitutional questions, and the legal precedents all point to the fact that California’s SB 277 is overreaching. Parents of vaccine injured children and parents who exercise freedom of conscience must not despair.
The California Secretary of State just announced that opponents of SB 277 can begin collecting petition signatures for a referendum on the law. If successful in obtaining 365,000 signatures by September 28th, SB 277 will be put on hold until the voters consider it on the state ballot in November, 2016.
In the meantime, current vaccine exemptions are valid in California until January, 2016 and longer for students in some grades. [Read the Bill for the specifics.] Students entering school for the first time will have to meet the requirements of SB 277, but the early years are a perfect time for home schooling, which is already a vibrant movement in California.
The legal challenges presented to SB 277 are an opportunity to verify the validity of the vaccine injured family’s experience and confirm the protections provided religious freedom, freedom of conscience, and informed consent by our state and US constitutions, as well as the international community.
Peggy O’Mara is the editor and publisher of peggyomara.com. She founded Mothering.com in 1995 and was its editor-in chief until 2012. She was the editor and publisher of Mothering Magazine from 1980 to 2011. The author of Having a Baby Naturally; Natural Family Living; The Way Back Home; and A Quiet Place. Peggy has conducted workshops at Omega Institute, Esalen, La Leche League, and Bioneers. She is the mother of four and grandmother of three.