California’s New Vaccine Exemption Law: Above the Law?
California’s AB 2109 was passed into law in 2012 and took effect January 1, 2014. The new law (http://leginfo.legislature.ca.gov/faces/billNavClient.xhtml?bill_id=201120120AB2109) will require parents exercising an exemption to immunizations to provide a letter or affidavit to document which required immunizations have been given and which have not been given on the basis that they are contrary to the parent’s beliefs; and beginning on January 1, 2014, the letter or affidavit has to be accompanied by a State Department of Public Health form that includes a signed attestation from a health care practitioner that he or she provided the parent “information regarding the benefits and risks of the immunization and the health risks of specified communicable diseases,” and a written statement by the parent indicating that he or she received the information from the health care practitioner. California’s Governor Brown, when signing AB 2109 into law, directed the Department of Public Health to allow for a separate religious exemption on the form, so that people whose religious beliefs are opposed vaccinations won’t be required to seek a health care practitioner’s signature.
This article addresses the Constitutionality of: 1) the new law, 2) the Governor’s authority to direct the Health Department to allow for a separate religious exemption on the form, 3) the Constitutionality of the current version of the Health Department’s proposed form required as of January 1, 2014, and 4) what can be done about these Constitutional problems. \
- Is the new law Constitutional?
While state legislators all take an oath to uphold the state and federal Constitutions, that oath really means little to nothing, as laws are not officially unconstitutional unless and until a court says so. That is, legislators are free to ignore Constitutional problems in bills; they need only be concerned with getting enough votes and the governor’s signature; and if they get that, the bill becomes law, whether the law violates the Constitution or not. 
The problem with California’s new law concerns those with religious objections to immunizations. While what specific beliefs do or don’t qualify for a religious exemption is beyond the scope of this article (and those persons in situations where you are required to state your beliefs are strongly encouraged to consult a knowledgeable attorney about how to do that in accordance with the law), the starting place is that the “free exercise” clause of the First Amendment as interpreted by federal courts provides protection for any belief that is religious in nature and sincerely held. If you meet those two criteria as the law defines them, you qualify for any exemption that includes religious objections. And since the Constitution is a higher legal authority than state law, states cannot lawfully add additional requirements.
California’s new law refers only to “beliefs”—it says nothing about religion or religious objections. So, does California’s new exemption law include those with religious objections to vaccines? Technically, that depends on California’s statutory construction rules, laws that every state has that direct how to properly interpret each state’s statutes. In California, like most if not all other states, statutes are to be interpreted to give the intent of the legislature, and unambiguous laws are deemed to state the intent of the legislature. So, California’s exemption law does, implicitly and per applicable statutory construction rules, include a religious exemption. The state Department of Public Health has acknowledged this with respect to California’s former exemption law which also did not specifically refer to religious objections. See, e.g., http://www.cdph.ca.gov/programs/immunize/Documents/imm488e.pdf.
The Constitutional problem with the new statute comes from the fact that it requires *all* persons claiming an exemption, including those with religious objections, to jump through additional hoops, which places an unconstitutional burden on those with religious objections, who need only have a sincerely held religious belief. Therefore, the new law is unconstitutional as to those parents with qualifying religious objections to immunizations.
Governor Brown seemed to be acknowledging this when he directed the health department to provide for a separate religious exemption on the health department form, so kudos for Governor Brown. But did he have authority to do this?
- The Governor’s Authority to Direct the Health Department…
Under general principals of separation of powers, the three branches of government—executive (which at the state level is the governor’s office), legislative and judiciary—provide checks and balances for one another. No branch has direct control over any other branch. So, governors, who are members of the executive branch, probably may not legally require health departments, which are usually created by the legislature and are therefore a part of the legislative branch, to do anything, though the executive branch is tasked with enforcing the laws. However, the health department may, as a function of its discretionary authority, may be free to choose to cooperate with the governor and attempt to implement his directive, so long as the department does so within the boundaries of its statutory authority. So while the governor may have exceeded his authority to direct the health department to include a religious exemption, the health department may have authority to cooperate with the governor by adding a religious exemption to its proposed form, which it has in fact done. However, did the health department follow the law in its attempt to appease the governor?
- The Department of Public Health’s New Vaccine Exemption Form
The good news is that the health department’s new exemption form provides a separate religious exemption—parents with religious objections don’t have to get a lecture about vaccines or a doctor’s signature (http://eziz.org/assets/docs/CDPH-8262.pdf). The bad news is that the wording on the new form requires the parent to be “a member of a religion which prohibits me from seeking medical advice or treatment from authorized health care practitioners,” which is blatantly unconstitutional. As stated above, the First Amendment, a higher legal authority, requires only a sincerely held religious belief…
In summary, the California State Legislature passed an unconstitutional exemption law; Governor Brown, if with the best of intentions, may have exceeded his authority when issuing a directive to the California Department of Public Health telling it to include a religious exemption in the exemption form, and the California Department of Public Health has created an unconstitutional exemption form. Does anyone else see a pattern here? I’ll let you decide whether this is incompetence or politics, but these three legal errors have resulted in a bad law that will probably unlawfully discriminate against some of the California parents who exercise the exemption. This is not a problem for California residents only, though. Similar laws were passed in Washington State in 2011 and Oregon and 2013. This is a trend that could be applied to more states, spreading further the pharmaceutical influence over state legislatures that would continue to erode our Constitutional rights to maximize profits in the multi-billion dollar, double-digit growth, international vaccine industry that increasingly places profits above the health and safety of our children and ourselves. Their motto is, “Wealth Before Health.”
What Can California Parents Do?
The simplest short-term solution would be for the Department of Public Health to modify their form to bring it into compliance with the Constitution—to change the wording for the religious exemption so that it is clear that anyone with a sincerely held religious belief or practice that is opposed to immunizations may refuse vaccines without getting a vaccine lecture or doctor’s signature. A longer-term solution would be for the legislature to correct this by amending the state statutes. Citizens in California should contact their representatives and the state health department to demand this. Go in numbers, with a petition or group (individuals are too easily ignored). See your state representative in person if at all possible; letters and emails tend to get little or no real attention.
Parents adversely affected by the new law could also file a lawsuit challenging the Constitutionality of the law. However, there’s a risk there. When others states’ unconstitutional religious exemption laws were ruled to be unconstitutional, the result, most of the time, was that the entire exemption was stricken, leaving the state with no religious exemption at all until the state legislature enacted a new exemption law. So, this needs to be analyzed carefully by attorneys contemplating such a suit. Meanwhile, with respect to the health department form as currently drafted, parents who qualify for a religious exemption under the First Amendment but who don’t meet the Department of Public Health’s form requirements could theoretically refuse to provide a doctor’s signature, since that requirement is arguably unconstitutional. You may need an attorney backing you up to pull that off, but the legal argument is there. Perhaps if a few thousand parents around the state objected in this manner, the legislature would be forced to pay attention to proper Constitutional boundaries for a change.
Alan Phillips, J.D. is a leading national vaccine rights attorney who works with clients, attorneys and legislative activists throughout the United States. For more information, see www.vaccinerights.com.