Posted by: coachingparents | October 4, 2008


Many parents, facing mandatory vaccination schedules, wonder about the safety of their children and what their rights, as parents, actually are? What and who should they listen to- in order to evaluate that safety? And, for parents who may have a problem with mandatory vaccinations, what are their rights?

It is true that vaccinations have proven a delicate issue for at least a small number of parents. There have been religious and philosophical objections to the practice and in many states, parents are permitted to gain exemptions for their beliefs. There have been parents who have had medical objections to vaccinations related to situations peculiar to their children regarding specific health conditions. Many of these objections are fully acceptable under the laws of almost every state. But there have always been a number of parents that have objected to the possibility of injuries and fatalities that are possible when millions of people are subjected to vaccination protocols. Those who have based their objection on that type of argument historically have not fared well. Despite the statistical probability of adverse reactions from vaccinations, this type of protest has been marginal and has not prevented the growth of mandatory vaccinations. This despite the fact that many grass-roots organizations have pointed out the fact that a child’s delicate body balance can indeed be compromised by current vaccination protocols.

There exists a heated debate about the relationship between vaccinations and autism, which is indicative of some of the issues involved with parents confronting the reality of legally mandated vaccinations. Although the link is a matter of dispute, the growth of autism is not. According to Vaccination News, “In the years between 1970 and the late ’90s, autism rates in America rose from 1 in 10,000 children to 1 in 166.” Current data (2008) as reported by The Vaccine Autoimmune Project For Research and Education (VAP) shows that 1 in 67 US children suffer the symptoms of autism or a related spectrum disorder. These are nothing less than astounding figures. Whatever the cause of these symptoms, these figures are clearly a concern to many. This of course has motivated some parents to spend tens of thousands of dollars on liquid vitamins, detoxification procedures, natural vitamin supplements and other alternative options in an effort to reverse for their children the apparent side effects of vaccinations.

Besides the effect on health, the cost of autism to individuals and to the state is staggering. In a 2006 book, Understanding Autism: From Basic Neuroscience to Treatment (CRC Press), written by Michael Ganz, the author cites his study evaluating the cost of autism in this country, noting that it can cost around $3.2 million to fund care for an autistic person during their lifetime. The study projects that the aggregate cost of this care per year could be estimated at $35 billion, a staggering amount of money. Not to mention the long term pain and suffering of those families and individuals affected. Could much of this be due to certain substances involved in the vaccination procedure, as some scientists and doctors claim?

Medical issues revolving around mandatory vaccination have been around for some time. The concern has aroused a growing grassroots movement to question the rights of government to enforce mandatory vaccinations. Given suspicions that vaccinations can cause autism, it is not surprising to find thousands of parents who wish to opt out of any type of mandatory vaccination. But what should a parent do caught in the crossroads of this debate? After all, what are the dangers of avoiding immunological protection against potentially dangerous diseases that have seemingly been overcome by the vaccination protocol?

Given the current scientific debate over the effects of current vaccination protocols, can one really know for certain that the public good is being served by any type of vaccination protocol that might actually cause the development of autism and other neuro developmental disorders? Still, the reality of this connection, is a matter of fierce debate.

In an essay, The (Pretending to) Combat Autism Act, Bernard Rimland wrote, “I was the first to announce the ‘autism epidemic,’ in 1995, and I pointed out in that article that the excessive use of vaccines were a plausible cause of the epidemic. As you know, an enormous amount of clinical laboratory research (as opposed to epidemiological research) has been accumulated since that time, supporting my position. (I did not know then that the vaccines contained mercury, although I had been collecting data since 1967 from the mothers of autistic children, on any dental work they may have had during their pregnancy.) The evidence is now overwhelming, despite the misinformation from the Centers for Disease Control and Prevention, the American Academy of Pediatrics, and the Institute of Medicine.”

Although there are opposing views regarding the connection between vaccinations and autism, the following statement of Dr. Alan D. Clark, an early researcher of autism, now deceased, and his wife, Lujene G. Clark, forcefully maintained an anti-vaccination position. “…After reviewing hundreds of peer-reviewed scientific papers, we can say unequivocally, the scientific, clinical and biological evidence, including toxicological, chemical and pharmacological data, shows a strong relationship between Thimerosal, a known neurotoxin, and neurodevelopmental disorders.” Thimerosal, which contains mercury, is a preservative routinely used to prevent microbial contamination of vaccines and other drugs.

On the other hand, A. Doja and W. Roberts from the division of Neurology at the Children’s Hospital of Eastern Ontario in Ottawa, Canada, said, “Because of a temporal correlation between the first notable signs and symptoms of autism and the routine childhood vaccination schedule, many parents have become increasingly concerned regarding the possible etiologic role vaccines may play in the development of autism. In particular, some have suggested an association between the Measles-Mumps-Rubella vaccine and autism. Our literature review found very few studies supporting this theory, with the overwhelming majority showing no causal association between the Measles-Mumps-Rubella vaccine and autism. The vaccine preservative Thimerosal has alternatively been hypothesized to have a possible causal role in autism. Again, no convincing evidence was found to support this      claim, nor for the use of chelation therapy in autism. With decreasing uptake of immunizations in children and the inevitable occurrence of measles outbreaks, it is important that clinicians be aware of the literature concerning vaccinations and autism so that they may have informed discussions with parents and caregivers.”

Despite the scientific community’s skepticism about Thimerosal, in 1999, the Center for Disease Control and the American Association of Pediatrics called for the removal of Thimerosal from vaccines. They also asked vaccine makers to delay the administration of the birth dose of Hepatitus B vaccine for children who had no immediate risk of hepatitis. Since that point, the scientific consensus, based on a variety of scientific studies worldwide has never really admitted that the connection between vaccinations and autism has been established or that Thimerosal has a conclusive effect on the growth of autism.

But with the scientific evidence still in dispute in the autism community and in other sympathetic quarters, what are parents to do or to think? Should they just accept the consensus for what it is? As we have seen, despite the refusal of mainstream science to provide correlating evidence, the CDC and APA still took action to take mercury additives out of the vaccination protocol. So why shouldn’t parents ponder the potential risk, even if science has not yet settled the debate.

Although the FDA and the Federal government refuse to recognize the possible link between autism and vaccinations, given the widespread concern, does the State have the right to impose mandatory vaccinations on children? Are there Constitutional issues at stake?

Naturally, there are other ways to approach this issue besides addressing it in the courts on Constitutional grounds. Many states make provisions for rejecting vaccinations on religious or philosophic grounds. All states allow exemptions on medical grounds. But could a parent reject mandatory vaccinations based on the grounds on believing that there is a possible danger, still unproven- or that the science, in the parents’ opinion, is inconclusive, even though that might fly in the face of current scientific consensus?

If such a case were to be heard- and it went through the appeals process, it would ultimately be adjudicated by the US Supreme Court. For instance, a federal law could be passed by the US Congress banning mandatory vaccination in the interest of preventing a national health crisis. But this action, just as the non-activity of not passing any legislation in this direction, could be challenged on Constitutional grounds. The exercise of mandatory vaccination is generally legislated and enforced by State governments and Federal legislation must involve Constitutional issues allowing interference with State policing powers.

But could an individual have the right to object on the grounds that he or she is not certain of the government’s science and that its position is an unwelcome and unconstitutional infringement on personal rights to make decisions on regarding personal health and what substances are put into his body? This would dilute the power of the State to unilaterally enforce mandatory vaccination procedures.

There is no doubt that attacking mandatory vaccination on Constitutional grounds entails challenging an extremely entrenched and inflexible medical establishment’s pro-vaccination position, but are there really any Constitutional grounds to argue? Has it come up before- and, given the current law, what would be the devices needed to challenge it?

Currently, every State within the United States requires that children be vaccinated prior to enrollment in either a private or public school. Mandatory vaccination began with early statutes directed towards the suppression of smallpox. In fact, the first mandatory vaccination law was enacted in 1909 in Massachusetts. Many of these statutes were amended during the measles outbreaks in the 60’s and 70’s. At the present time, there are a number of immunizations generally covered in addition to measles including rubella, diphtheria, and polio.

The core case for defending mandatory vaccination was Jacobson v. Massachusetts, which in 1905 challenged the earlier statue. In Jacobson, it was argued, “a compulsory vaccination law is unreasonable, arbitrary and oppressive, and, therefore, hostile to the inherent right of every freeman to care for his own body and health in such way as to him seems best; and that the execution of such a law against one who objects to vaccination, no matter for what reason, is nothing short of an assault upon his person.”

The Court rejected Jacobson’s claim, retorting “the liberty secured by the Constitution of the United States to every person within its jurisdiction does not import an absolute right in each person, to be, at all times and in all circumstances wholly free from restraint.”

Perhaps the clearest and most recent Constitutional challenge to mandatory vaccination can be found in a quote from Judge Cardozo in the case of Schoendorff v. Society of New York Hospital Constitution [211 N.Y. 125, 129, 105 N.E. 92, 93 (N.Y. 1914)], when he said, “Every human being of adult years and sound mind has a right to determine what shall be done with his own body,” a direct reference to medical needs examined in the case. This affirmation of a liberty or a right to privacy issues is derived from the due process clause of the 14th Amendment. The most famous use of this argument is clearly in Roe v. Wade regulation (410 U.S. at 154, 193 S.Ct. at 727) which states that the right to medical privacy can and should be weighed against important State interests in regulation.

Section one of the 14th Amendment, immediately following the definition of citizens and their jurisdiction under Federal and State governments, says, “All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.”

The focus here is on the need for due process in cases involving individual liberty or life. Clearly, it could be argued, subjecting an      individual to the risk of death or disablement through a mandatory vaccination affects his ability to live. It also affects his liberty- for autism is a serious impairment of mental, social, and physical mobility. One is truly trapped in the prison of one’s own body.

This argument arose in the case of [Cruzan v. Director, Missouri Dept. of Health, 497 U.S. 261, 278, 110 S.Ct. 2841, 2851 (1990)], a “right to die” case, in which the Supreme Court cited the Jacobson v Massachusetts decision, again supporting the conclusion that public health needs to trump the individual assertions of “bodily integrity,’ now resurfacing as the right to “medical privacy.” Underlying this decision is the firm commitment to support the police power of State governments to enforce laws regarding mandatory vaccination in the case of “public health” needs.

If, indeed, it could be argued, that the State is involved with a medical protocol, like a form of vaccination, that is generating devastating harm to the community it is pledged to protect through its protocol, then the right to refuse vaccination would be an inherent right owed to the petitioner refusing the protocol for themselves or for their legal wards. The infliction of mandatory vaccination would be an unconstitutional incursion of the State on the individual right or entitlement to medical privacy.

Of course, the judicial ruling would be largely based on scientific evidence supporting the contention that an autism/mandatory linkage occurred and the acceptance of the possibility of widespread damage that might occur to the United States if mandatory vaccination were not stopped.

There are many calling for some kind of legislative or regulatory action by the States or the Federal government. So, if mandatory vaccination isn’t changed by new regulations and new laws, then it may have to be changed by judicial challenges. One of them could be the due process challenge to prevent government from compelling citizens to conform to a potentially compromising vaccination protocol that negatively impacts both the individual and the public interest. In the wake of potential insult to the individual and the public- and the vacillating interpretation of the science, is it any wonder that many feel that they would be best served by opting out of mandatory vaccination altogether? If a vaccination itself can trigger an epidemic- with its consequences going relatively undetected for decades, the due process argument may have impact in arguing for a more conservative view of the public good when it comes to mandatory vaccinations.

But, at the present moment, parents facing this issue- should realize that, even if such a case was brought by the Court- and despite some of the actions of the scientific and medical community limiting the use of thiomersal, the consensus of the scientific community accepts no link between autism and vaccination. So, if there are no religious or philosophical objections by the parent- and there are no legally accepted medical exemptions, the parents protest and resistance may wind up having to challenge the right of the state of mandate vaccinations outside of the tidy mechanisms of existing law.

In the case of mandatory vaccinations today, there is a conflict between established science and what some members of the scientific and medical community think of this science. So, a parent who thinks he has a right of choice in this issue must carefully look at his options and their legal constraints.

Dr. Linda Posch MS SLP ND


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