SB 276 Will Violate the Doctor-Patient Relationship by Eliminating Medical Exemptions

Of the fraudulent exemptions cases that the Medical Board of California has investigated to date, there have been no fraudulent medical exemptions found.

Special to California Globe by Mary Holland, Esq.*

California has one of the strictest compulsory vaccination laws for schoolchildren in the nation, but Senate Bill 276 by Senator Richard Pan (D-Sacramento) would eliminate almost all vaccine medical exemptions, allegedly to crack down on fraud. Under this bill, State bureaucrats — not physicians –would be in charge of deciding whether children may receive medical exemptions and thus whether they can attend school.

UC Berkeley Law Dean Erwin Chemerinsky recently weighed in on this in his OpEd, “Vaccines Protect Us. But does the U.S. Constitution protect anti-vaccine parents?,” published in the SacBee on May 6, 2019. Re-litigating SB 277, Chemerinsky got it wrong. While it is true that under SB 277 there are no lawful rights for parents to refuse vaccination other than medical ones, what Chemerinsky didn’t articulate is that this new bill is about physicians, not parents. After SB 277, it is solely within a physician’s discretion to grant a medical exemption, based on past adverse reactions and family history. SB 276 now seeks to remove a doctors’ ability to grant medical exemptions for the extremely small percentage that need them and, instead, to vest that authority in government bureaucrats.

SB 276 is a clear example of government overreach, resulting in the unnecessary and inefficient use of taxpayer dollars. Since SB 277 eliminated both personal belief and religious exemptions (47 other states allow either or both), vaccination rates increased from 92.9 to 94.8 percent. Currently, less than 1 percent of California kindergartners have a permanent medical exemption. In addition, 96.6 percent of kindergartners have had the MMR to protect against the measles infection.

California parents already lost the ability to refuse vaccination under SB 277

Medical exemptions exist for a very simple reason: to protect those who are particularly vulnerable to vaccine injury. The fact that the Centers for Disease Control and Prevention (CDC) has produced a list of contraindications and precautions is proof that vaccines do indeed carry serious and potentially fatal risks for a subset of people. Aside from the CDC’s list of contraindications, there is a long list of additional side effects that vaccine manufacturers must set forth in vaccine package inserts pursuant to federal regulations. The manufacturers themselves report that children have experienced life-threatening reactions such as cardiac arrest, seizures, paralysis, encephalitis, and death, all of which are listed on the inserts. Under SB 276, a child with a rare immunosuppressive disorder is protected by the CDC, but who is protecting the child who suffers multiple seizures after the MMR or has permanent paralysis after the DTaP? If the government wants to mandate vaccinations, it must ensure that they are safe for all children.

All of this begs the question, who is responsible for adverse reactions if California takes away the vast majority of necessary medical exemptions?

When a physician decides that a child is too medically fragile to receive a vaccine, but is not allowed to submit a medical exemption because it is not a listed CDC contraindication, and that child suffers a life-threatening reaction, such as multiple seizures or encephalitis (both listed on vaccine manufacturer inserts), is the doctor liable, or the state official, who denied the exemption?

Will taxpayers be left footing the bill for the inevitable litigation and damage awards that will ensue? One thing we know for sure, however: the pharmaceutical manufacturers won’t be liable since Congress, in its wisdom, granted them almost blanket liability protection for vaccine injury in 1986.

Proponents of SB 276 argue that doctors are granting many fraudulent exemptions. Indeed, Chemerinsky noted that he believed doctors were granting medical exemptions in “disturbing quantities.” The fact is, even without the adoption of SB 276, the Medical Board of California is investigating doctors for potentially fraudulent exemptions. Of the cases that the Board has investigated to date, there have been no fraudulent medical exemptions found. The idea of rampant fraud is a scare tactic to advance SB 276, and a fantasy.

SB 276 purports to close a loophole that does not exist. The Medical Board already monitors medical exemptions and already has access to medical records as part of its investigative powers. As California Governor Newsom has noted, we need to pause as we think about this bill because of its likely impact on the physician-patient relationship.

Although California does not recognize the legal basis for parents to refuse inoculation for religious and personal beliefs, physicians unquestionably retain the right to protect medically fragile children from likely harm. The U.S. Supreme Court long ago upheld the principle of harm avoidance in the context of vaccine mandates in its 1905 landmark decision Jacobson v. Massachusetts. SB 276, as written, protects only a small percentage of those who cannot be vaccinated but fails to protect other vulnerable children. An individual’s liberty never includes the right to harm another. In this case, in a misguided effort to protect the immunocompromised from a risk that may never occur, many who have previously been injured are being put in harm’s way.

California parents already lost the ability to refuse vaccination under SB 277, and were assured that medically fragile kids would not be put at risk for the “herd” and that they could obtain lawful medical exemptions.

Now, SB 276 would remove a doctor’s ability to grant such exemptions and, instead, would vest that awesome authority in a government bureaucrat who likely is not a physician and who will base his or her decision solely on the scant CDC guidelines that fail to account even for the potential adverse reactions the vaccine manufacturers themselves disclose in package inserts under federal law. And this is being done in the name of solving the non-existent problem of widespread fraudulent exemptions when over 99 percent of kindergartners do not even have medical exemptions. California would be better served to preserve the sanctity of the doctor-patient relationship and to reject SB 276.

Mary Holland, Esq. serves on the board of Children’s Health Defense, teaches at a New York City law school, and is most recently a co-author of the book “The HPV Vaccine on Trial.“