Why WA State SB 5005 is Unconstitutional

[Guest guest]

Why WA State SB 5005 is Unconstitutional

By Alan , J.D.

February 14, 2011

http://www.vaccinerights.com/pdf/2-14-11%20WA-State-Exmptn-Bill-Unconstitutional\

..pdf

Proposed legislation in Washington State, SB 5005, would require that forms for

all exemptions, whether medical, religious or philosophical, " include a

statement, signed by a health care practitioner, that the parent or guardian has

been informed of the benefits and risks of the immunization. " [1] Aside from

failing the common sense test—it is not appropriate to make doctors gatekeepers

for non-medical exemptions, generally—this proposed legislation would be

unconstitutional with regard to religious exemptions, specifically.

Federal law is a higher level of authority that state law, and generally

supersedes state law. Federal court cases have held that religious exemptions to

immunizations must meet a two-prong test for federal, First Amendment

protection: 1) That the beliefs be religious in nature, and 2) that they be

sincerely held.[2] There is nothing in these cases that would suggest any

further requirement; therefore, a state's imposition of further requirements

would violate the First Amendment. This only makes sense. No doctor should ever

be in the position of trying to argue a medical opinion over and against a

parent's religious beliefs and rights, and no parent should ever be in the

position of having a doctor try to talk them into violating their religious

beliefs. Religious beliefs and practices cannot legally be, and should never be,

subject to medical or scientific scrutiny, except in emergency situations where

states already have authority to impose medical care (or, in the case of

emergency vaccines, quarantine) over the religious objections of the parent. By

definition, routine immunizations do not involve any such emergency situations.

Washington State residents opposed to this legislation should share the above

legal opinion with their state legislators, and that should cause the bill to

die a quick death. However, if the proposed legislation were passed in its

current form, it could be immediately challenged on Constitutional grounds, and

the likelihood is that the statute, or at least that portion pertaining to

religious exemptions if the statute were severable under state law, would be

stricken.

Alan , J.D.

Vaccine Rights: http://www.vaccinerights.com

The Pandemic Response Project: http://www.pandemicresponseproject.com

_________________________

[1] Senate Bill Report SG 5005,

http://apps.leg.wa.gov/documents/billdocs/2011-12/Pdf/Bill%20Reports/Senate/5005\

%20SBA%20HEA%2011.pdf.

[2] See, e.g., Sherr and Levy vs. Northport East-Northport Union Free School

District, 672 F. Supp. 81 (E.D.N.Y., 1987), Mason v. General Brown Central

School Dist., 851 F.2d 47, 54 (2d Cir. 1988), and v. Sobel, 710 F. Supp.

506, 511 (S.D.N.Y. 1989).

[Guest guest]

Why WA State SB 5005 is Unconstitutional

By Alan , J.D.

February 14, 2011

http://www.vaccinerights.com/pdf/2-14-11%20WA-State-Exmptn-Bill-Unconstitutional\

..pdf

Proposed legislation in Washington State, SB 5005, would require that forms for

all exemptions, whether medical, religious or philosophical, " include a

statement, signed by a health care practitioner, that the parent or guardian has

been informed of the benefits and risks of the immunization. " [1] Aside from

failing the common sense test—it is not appropriate to make doctors gatekeepers

for non-medical exemptions, generally—this proposed legislation would be

unconstitutional with regard to religious exemptions, specifically.

Federal law is a higher level of authority that state law, and generally

supersedes state law. Federal court cases have held that religious exemptions to

immunizations must meet a two-prong test for federal, First Amendment

protection: 1) That the beliefs be religious in nature, and 2) that they be

sincerely held.[2] There is nothing in these cases that would suggest any

further requirement; therefore, a state's imposition of further requirements

would violate the First Amendment. This only makes sense. No doctor should ever

be in the position of trying to argue a medical opinion over and against a

parent's religious beliefs and rights, and no parent should ever be in the

position of having a doctor try to talk them into violating their religious

beliefs. Religious beliefs and practices cannot legally be, and should never be,

subject to medical or scientific scrutiny, except in emergency situations where

states already have authority to impose medical care (or, in the case of

emergency vaccines, quarantine) over the religious objections of the parent. By

definition, routine immunizations do not involve any such emergency situations.

Washington State residents opposed to this legislation should share the above

legal opinion with their state legislators, and that should cause the bill to

die a quick death. However, if the proposed legislation were passed in its

current form, it could be immediately challenged on Constitutional grounds, and

the likelihood is that the statute, or at least that portion pertaining to

religious exemptions if the statute were severable under state law, would be

stricken.

Alan , J.D.

Vaccine Rights: http://www.vaccinerights.com

The Pandemic Response Project: http://www.pandemicresponseproject.com

_________________________

[1] Senate Bill Report SG 5005,

http://apps.leg.wa.gov/documents/billdocs/2011-12/Pdf/Bill%20Reports/Senate/5005\

%20SBA%20HEA%2011.pdf.

[2] See, e.g., Sherr and Levy vs. Northport East-Northport Union Free School

District, 672 F. Supp. 81 (E.D.N.Y., 1987), Mason v. General Brown Central

School Dist., 851 F.2d 47, 54 (2d Cir. 1988), and v. Sobel, 710 F. Supp.

506, 511 (S.D.N.Y. 1989).