Really, ACLU of California? Really?

As the California legislature considers a bill that would eliminate almost all exemptions from laws that mandate vaccines for students in schools, the ACLU of California is actually siding with the anti-vaccine crowd and claiming that there is no compelling reason to require vaccinations.

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.

Really? No compelling interest in making sure all students be vaccinated (if they can be; some cannot be for medical reasons, which is why it’s so important for everyone else to have them)? I know you have a lot of lawyers, how about consulting a doctor?

POPULAR AT PATHEOS Nonreligious
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  • John Pieret

    Stupid, yes … as an argument for a currently unpopular position, people at least have a right to test it … and that’s what the ACLU exists to do.

  • http://www.facebook.com/rich.cassidy1 Rich Cassidy

    I’d say they answered their own question in the third paragraph.

  • jaybee

    Even ignoring the relatively rare case of people who cant’ be immunized, there is still a compelling reason to get high herd immunity rates. There is no one dosage which is both safe and guaranteed to provoke an immune response. Doses are set to err on the side of safety, which means a small percentage of the people who get immunized will not develop a sufficiently strong response and are at risk of getting sick anyway.

  • eric

    Vaccination is one of those issues our legal structure does very badly at dealing with, because we want the laws to be the same for everyone (either its legal or everyone to abstain, or its required of everyone), but vaccine efficacy is a quantitative issue (its better when more people get it; 100% is not needed for effectiveness).

    I think a reasonable compromise would be a law that says something like this: vaccination will continue to be optional (but with the current requirement for public school attendance) so long as the overall per capita rate within each congressional district exceeds a threshold set by our best scientific understanding of what is needed to prevent an outbreak. If it falls below that efficacy threshold, vaccination becomes no-religious-exemption mandatory the next year. Thus as long as 98% or whatever percent is needed to protect the general public gets vaccinated, we’ll keep it the way it is, but if the number starts to drop, the state is going to intervene to protect the public.

  • http://www.facebook.com/drew.vogel2 drewvogel

    The ACLU has a point. The issue isn’t vaccination. The issue is the right to public education. Sure, the state has a compelling interest in promoting vaccination. That’s not the question. Does the state have a compelling interest in excluding unvaccinated children from public schools? I don’t know, but that’s the question.

    Should a child forfeit her right to a public education because her parents decided not to vaccinate? Wouldn’t it be better to punish the parents, not the children?

  • eric

    The ACLU has a point. The issue isn’t vaccination. The issue is the right to public education.

    The issue is one child putting another child at risk of getting a deadly disease and possibly dying. Yes, kids have a right to education. Kids also have a right to a biologically non-hazardous school. When those two ideals bump up against each other, the state must weigh them and favor one over the other. I agree with Ed that right to avoid a deadly disease trumps a right to public education, I just disagree slightly on whether mandatory vaccination is absolutely necessary to achieve the former.

  • JustaTech

    The reason that children in public schools should be vaccinated is because school are inherently a breeding ground for disease. (Lots of unrelated people crammed together in a relatively small space in close contact for extended periods of time.)

    If the children are not vaccinated then the school is just one ongoing epidemic of this or that, and the children are constantly unable to attend school because they are home coughing their lungs out, or sitting quietly in a dark room hoping to preserve their vision.

    So if the point of public schools are to educate children, then it behooves them to make sure that as many children as possible are able to attend as much as possible, which means not being sick all the time. Thus the children should be vaccinated against vaccine-preventable diseases, so they only have to suffer non-vaccine preventable diseases.

    Eric @4: For some diseases, the % vaccinated needed to reach sustained heard immunity is upwards of 90%; so given that there are children who cannot be vaccinated for medical reasons, for that specific vaccine you would still need for everyone who can be vaccinated to be vaccinated.

  • Ellie

    So, any child who has a medical reason for not being vaccinated, or any pregnant woman (teachers) whose fetus may be exposed to diseases that can cause that fetus to be born blind, or deaf, or mentally handicapped, should just what? Not go to school? Sit in a bubble? Don’t those children have a right to an education? Don’t those teachers have a right to a safe work environment? That the ACLU is defending Special Snowflakes is a disgrace.

  • moarscienceplz

    Well, I suppose you could put un-vaxxed kids in a giant plastic hamster ball before they entered the school. That should keep everybody satisfied, right?

  • http://www.facebook.com/drew.vogel2 drewvogel

    The issue is one child putting another child at risk of getting a deadly disease and possibly dying.

    If that’s the issue, then all unvaccinated children should be excluded from public schools, because all unvaccinated children pose the same danger.

    What’s the situation in California now? If I understand correctly, it’s really easy for parents to opt out of vaccinations, and their children are still permitted to attend school. Right? So how about a law that makes it onerous and perhaps expensive for parents to opt out (e.g., parents of unvaccinated children lacking a medical exemption could be required to pay an annual fee). That would still increase vaccination rates across the public school system, but it wouldn’t raise the same constitutional issues.

  • John Pieret

    The ACLU has not brought or even threatened a lawsuit. It is arguing that legislation already on the books, that requires health professionals to discuss the benefits and risks of immunization with parents before they are allowed to file belief exemptions, and that has already led to an increase in vaccination rates, be given more of a chance to work. I can’t say I agree for the same reason I don’t think same-sex marriage bans be allowed by SCOTUS to continue in effect to “see if there are any bad social effects of gay marriage,” as was argued today. Kids and teachers deserve a place to educate and be educated that is as safe as our medical technology can make it.

  • blf

    Keep in mind unvaccinated people (who could could be vaccinated) are around in public. They are not in some isolated hermetically-sealed tent, posing no risk to others. Schools per se have nothing to do with the problem, other than being (1) A hugely convenient and practical proxy / motivation for getting highly vulnerable people (children) vaccinated; and (2) A common “public” space with controlled access. You could equally demand that anyone who walks down the sidewalk / footpath / pavement be vaccinated (again, with medical exemptions), but that would, in practice, accomplish nothing much useful regarding vaccine uptakes.

  • eric

    If that’s the issue, then all unvaccinated children should be excluded from public schools, because all unvaccinated children pose the same danger.

    Given that the goal is to prevent children from dying, forcing a vaccine on a kid who would die when they take it is not a sensible policy. So the medical exemption makes perfect sense to me in a way that the religious one does not. Your 6-year-old certainly have a right to live your beliefs insofar as that doesn’t expose my 6-year-old to whooping cough. But living them to the extent that you expose my to such a disease is sort of like declaring that the right to swing your fist doesn’t stop at my nose. Yes it does. Your rights do not extend to putting my kid at such risk.

    However, if you read my post in @4, you’ll see that I am okay with religious and ideological exemptions if the number is small enough that it doesn’t compromise herd immunity, because this is a risk balancing policy issue. The problem is, our legal system doesn’t do quantitative risk assessment very well. But I would argue that the best compromise is to allow freedom of choice to the extent possible, so long as it doesn’t create a large-scale risk to the population. This may require a shifting and “unfair” policy that requires some people to vaccinate against their will and allow others not to based on geographic location and the number of other ‘defectors,’ but at least preserves more freedom of choice than a law-oriented “everyone gets it, or else” policy.

  • whheydt

    Some time back, Slate did an article on the–rather common–religious exemptions. They asked various religious authorities if their theology barred vaccination. They couldn’t find any religions that did so.

    One can only conclude that a religious exemption to vaccination is a red herring and out to be eliminated, or else that it be called what it really is: The parents *personal* objection (for whatever reason).

    I’m glad the ACLU raised the point. I hope the result is that the legislators put language in the bill showing *why* it is sound public policy that the personal exemption needs to be removed. This isn’t needed for those that understand the issues. It is needed for those that don’t.

  • dingojack

    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.” [read as yellow Comic Sans]

    Dear Kev – do you actually read what you write? Wanna know what the ‘compelling interest’ the state has in vaccinating students? READ THE FIRST SENTENCE QUOTED ABOVE (you wrote it and yet, incredibly, you don’t seem to have understood it).

    Weirdly, the criminal code doesn’t explain why murder should be punished, why jay-walking should be discouraged nor why driving whilst having a blood alcohol level above a certain prescribed amount is bad… yet, somehow, the courts have overlooked the blatant unconstitutionality of laws not explaining the bleeding obvious to individuals with IQs riding well below room temperatures. Fancy that!

    @@ Dingo

  • Chiroptera

    While I understand the public health issue is important, I’d like to point out the other important issue:

    there are individual children whose health and lives are being jeopardized because their parents are ignorant about science or because their parents believe that there is a magic king who lives in the sky and gives cures to kids he likes.

    Personally, I see this as a serious violation of the children’s rights, and an example where the parents are clearly exercising poor judgement as the stewards acting on behalf of their children’s rights.

    When people are talking about people’s religious rights, they seem to be talking about parents’ religious right to treat their kids as their personal vanity projects. I think that this is a case where we as a society acting through our state agencies need to put limits on the parents’ “rights” to endanger their own children.

  • Michael Heath

    Not surprisingly that I’m with Chiroptera; but where the fuck is the ACLU in protecting the rights of:

    a) unvaccinated children from their abusive parents and,

    b) people that are exposed to these unvaccinated children.

    The quality of thinking presented here by the ACLU reminds me of Sarah Palin.

  • tomh

    @ #16

    “When people are talking about people’s religious rights, they seem to be talking about parents’ religious right to treat their kids as their personal vanity projects.”

    Yes, that’s exactly how it works in America. In the name of religion, (depending on the state), parents are free to refuse to provide their children with medical care, deny them vaccinations against disease, allow corporal punishment, and, of course, indoctrinate the children into the religion. The children are basically the property of the parents, and any objection means that you’re not allowing the parents the free exercise of their religion.

  • StevoR

    Yeah, I too would’ve expected much better from the ACLU on this. Disappointing and angering news.

    Maybe someone needs to send them this song :

    https://www.youtube.com/watch?v=u1xw0Ob5bqs

    ‘The Vaccine Song’ by brainwarmups on youtube which I think sums up issue almost perfectly.

    Anti-vaxxers kill – just ask the parents of Dana McCaffery see :

    http: // danamccaffery (dot) com / openletter (dot) html

  • azpaul3

    Reading comprehension problems?

    …the bill does not explain why the state has a “compelling interest” …

    Is the ACLU actually complaining that the state has no interest OR that the wording in the bill does not clearly, specifically, state the state’s compelling interest in forcing a personally invasive procedure like vaccination?

    I hear the ACLU acknowledging the state has such a compelling interest but so as to withstand constitutional challenge the bill be more clearly worded.

    So, what’s the problem here?

  • azpaul3

    #15

    Sorry, Dingo, but it is one thing for a law to enact punishment for your personal misbehavior without explaining why and quite another thing for a law to order the state’s invasion of your body with a needle without explaining why.

  • http://www.facebook.com/drew.vogel2 drewvogel

    Dear Kev – do you actually read what you write? Wanna know what the ‘compelling interest’ the state has in vaccinating students? READ THE FIRST SENTENCE QUOTED ABOVE (you wrote it and yet, incredibly, you don’t seem to have understood it).

    No, dingo, you’ve just moved the goalposts. Read the quote again. Baker is talking about whether the state has a compelling interest in “requiring that all students in every school be vaccinated”. That’s not the same thing as just “vaccinating students”.

    You’re not looking at what the law actually does. The law doesn’t vaccinate anyone. The law doesn’t require anyone to be vaccinated. The law simply excludes non-vaccinated children (lacking a medical exemption) from the public school system. You’re confusing what the law does with why the law does it, but the ends don’t justify the means. Maintaining herd immunity is an important public policy goal, but it’s not clear to me that achieving that goal requires excluding non-vaccinated students from public schools. Maybe it does, but if it doesn’t, then the law is unconstitutional and runs the risk of being struck down. That’s worth avoiding, wouldn’t you say?

  • dingojack

    Drew – … and marriage equality proponents aren’t clearly annunciating why all churches are being forced to only conduct same sex marriages – oh wait – that’s because they are not and nobody is proposing they do.

    azpaul3 – if non-immunisation only affected you that might be an argument, however your rights stop ‘at my nose’. Do you , by your reckless indifference, have the right to infect other people’s bodies with your viruses, thus possibly cause disability, disfigurement and (at the extreme) death?

    Do the statues on murder contain a moral and philosophical treatises on why murder is bad? Perhaps we should strike it down as it’s not clearly stating the bleeding obvious…

    Dingo

  • http://www.facebook.com/drew.vogel2 drewvogel

    Dingo, I have no idea what your point is. The law in question does require that all students be vaccinated (or have a medical exemption). Your ridiculous analogy does not apply.

    Let me make this perfectly clear. The ACLU is trying to make sure that this law, the goal of which we all support, is not struck down for violating the California constitution. I’m not sure, but you appear to be trying to pretend that this issue simply does not exist. Well, it does exist. This law, if it passes, will be challenged. I don’t know if that challenge will be successful or not, but I do know that if it is, it will provide a completely avoidable PR victory to the anti-vaxxers. I don’t want to see that happen.

  • tomh

    @ #24

    “This law, if it passes, will be challenged.”

    A challenge to the law would have a steep hill to climb, since the issue has been decided by the Supreme Court in Jacobson v. Massachusetts, which held that states could enforce compulsory vaccination laws. This was reaffirmed in Zucht v. King, which held that a school system could refuse admission to a student who failed to receive a required vaccination.

  • dingojack

    “The law in question does require that all students be vaccinated (or have a medical exemption).”

    Even you seem to have (belatedly) have grasped it.

    Unless there is some valid medical reason for not getting a jab*, then you will get a jab as a matter of public safety — so as not to cause harm to others**.

    Your rights end at my nose.

    Dingo

    ———

    * if it will comprise your safety, for example

    ** note this is not, as claimed, all students

  • http://www.facebook.com/drew.vogel2 drewvogel

    A challenge to the law would have a steep hill to climb, since the issue has been decided by the Supreme Court in Jacobson v. Massachusetts, which held that states could enforce compulsory vaccination laws. This was reaffirmed in Zucht v. King, which held that a school system could refuse admission to a student who failed to receive a required vaccination.

    I’m not familiar with that case, but I’m willing to bet that it probably didn’t have much to do with the state constitution of California, and it’s guarantee of a right to public education. I’m just guessing. The federal constitution contains no such guarantee, so that probably wasn’t an issue in that case.

  • tomh

    @ #27

    The issue is not the right to a public education, the issue is whether personal beliefs can exempt one from laws for the common welfare of the state. This bill would simply remove that exemption for this issue. There are states that have no exemptions (except medical) for vaccinations, and they have withstood challenges. If it were challenged in California, (which I doubt), it would be no different.

  • http://www.facebook.com/drew.vogel2 drewvogel

    “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.”

    It sure looks to me like the issue is the right to public education. But what do I know? All I can do is read.

  • zenlike

    drewvogel says

    “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.”

    It sure looks to me like the issue is the right to public education. But what do I know? All I can do is read.

    Every right has its limits. Children are probably booted from school if they show up naked. That doesn’t invalidate their right to a public education.

  • http://itsmyworldcanthasnotyours.blogspot.com WMDKitty — Survivor

    The ACLU is dead wrong on this one.

    There is no “right” to expose others to a potentially fatal illness, whether it’s something as innocuous as the flu or something as serious as HIV.

    I once had an anti-vaxxer claim that he had every right to expose others to any disease he might be carrying, and that there was no “right to not be exposed.”

    My response was along the lines of “fine, I’ll just come down your place and bleed all over you. After all, according to you, I have every right to expose you to my Hepatitis.”

    He then insisted that blood-borne diseases are “different” (why? “Because they are!“). Well, I don’t see a difference, because influenza and Hep C are both potentially fatal, and if I don’t have a right to avoid your flu — something that has a decent chance of actually killing me — you don’t have the right to avoid my hep — which would take decades to manifest anyway.

    Fucking hypocrite.

  • Michael Heath

    WMDKitty writes:

    There is no “right” to expose others to a potentially fatal illness, whether it’s something as innocuous as the flu or something as serious as HIV.

    You nor anyone, including the government, determines what another’s rights are. Our form of government instead has us asserting our rights are inalienable.

    It’s also false to claim people don’t have a right to expose others to infectious disease. The government unfortunately protects such rights our current set of laws rather than better protecting others exposure to infectious disease. So why would any anti-vaxxer listen to your argument when the law so frequently falsify your primary premise presented here?

    Here the controversy isn’t the existence of one right vs. another. Instead it’s whose rights should the government protect? I think the government should infringe upon the rights of anti-vaxxers to require they and their children get vaccinated (in most cases). That in order to protect what I think is the superior rights of other people to minimize their exposure to infectious diseases.

    WMDKitty:

    I once had an anti-vaxxer claim that he had every right to expose others to any disease he might be carrying, and that there was no “right to not be exposed.”

    Here we see the anti-vaxxer demonstrate the same defective thinking WMDKitty does; assert what other’s rights are or are not.

    The anti-vaxxer does sometimes have government protection to expose others; I find that to be really bad public policy. But the anti-vaxxer is wrong to assert as WMDKitty does what another’s rights are or are not.

    When someone claims another’s rights, that argument is not only wrong, but also unconvincing because all it takes is revealing a law that protects the exercise of that right. Here that’d be anti-vaxxers being able to avoid having their kids vaccinated. So why would an anti-vaxxer listen to an argument like WMDKitty’s when the law clearly falsifies her false claim they have no right to expose others to disease?

    If you want to better influence someone that the protection of their rights is bad policy, it’s far better to expose them to the fact the exercise of their right infringes upon the rights of another. Especially where the facts reveal the exercise of one right might provide them a trivial benefit or even harmful effect on them while exposing others to a far more harmful outcome.

    In this case that would entail reporting how unvaccinated people can bring so much harm to so many others if we don’t maintain herd immunity.

    My advocated approach is exactly why the NRA fights so fiercely to insure the government doesn’t grant money to science to study the societal implications of gun ownership. Because the impact of a high inventory of guns is so devastating to innocents relative to the benefits to the population of individual gun owners.

    When you reveal these types of controversies as competing rights controversies, it’s frequently impossible for the bad actors to compellingly argue why their rights are worthy of protection vs. the competing rights of others.

  • http://www.facebook.com/drew.vogel2 drewvogel

    zenlike sayd:

    Every right has its limits.

    Indeed, but we don’t know where those limits are until the judiciary tells us. We’re all entitled to our opinions, of course, but the only opinions that matter are the ones that have the force of law.