Health Care

First Amendment rights cited in objection to new vaccine exemption form; lawyer warns parents might sue state

When Wendy Hoffman Farrell of Bolton went to sign Vermont’s new vaccine exemption form for her children to attend school, she felt her First Amendment rights had been sullied.

“Even as a second-year law student, I could see that this was a violation of my First Amendment rights,” the mother of three told Tracy Dolan, Department of Health deputy commissioner, and Dixie Henry, the department’s policy and legal adviser, at a public hearing Friday on the state’s new immunization rules.

“I had to make a choice between these rights and allowing my children the normalcy of attending the school to which we pay taxes,” said Farrell.

The exemption form was put in place by the department this year as a result of the Legislature’s new vaccine bill, which went into effect July 1. The bill, known as Act 157, gives parents the power to exempt their children from receiving government-recommended vaccinations for philosophic and religious reasons, while still permitting these children to attend public schools.

But Farrell — along with roughly one dozen of the 20-plus medical professionals and parents who filled a health department conference room on Friday — voiced concern that the form, which gives parents this power, violates their right to free speech.

The issue, explained attorney Mitchell Pearl, is that the language in the exemption form compels a person to make a statement that he or she might be opposed to. Pearl is a First Amendment specialist, who works for the Vermont law firm Langrock, Sperry & Wool. In this matter, he is representing a small group of parents who are members of the advocacy group Vermont Coalition for Vaccine Choice, which pushes for family discretion over administering immunizations to children.

As Pearl outlined in a letter to Dolan and in person on Friday, the alleged violation boils down to two sentences on the exemption form:

• “I understand that failure to complete the required vaccination schedule increases the risk to my child and others of contracting, carrying or spreading a vaccine-preventable infectious disease.”

• “I understand that there are people with special health needs in schools and child care facilities who are unable to be vaccinated, or who are at heightened risk of contracting a vaccine preventable communicable disease, and for whom such a disease could be life-threatening.”

In addition to protecting free speech, said Pearl, the First Amendment also prohibits the state from compelling a person to speak when he or she doesn’t want to.

Referencing the first of the two statements on the exemption form, he said, “This is a statement of scientific belief, and it may be true, and certainly the Department of Health believes it to be true, and many people agree with that — but not everybody agrees with that. The constitutional problem is requiring the parent to affirm that they believe it to be true, even if they personally disagree with the statement and even if their religious beliefs might prevent them from making such a statement.”

“The constitutional issue is whether a parent can be forced to affirm a particular statement is their own belief as a condition of enrolling their children in school,” he added.

To solve this issue, Pearl proposed a simple shift in diction: adding the words “the Department of Health’s position” between the words “understand” and “that.” The language in the first statement would then read, “I understand the Department of Health’s position that failure to complete the required vaccination schedule increases the risk to my child and others of contracting, carrying or spreading a vaccine-preventable infectious disease.”

With such wording, parents who sign the exemption form would only acknowledge the state’s position and not be forced to sign that it is their own.

Pearl warned Dolan that if the department does not adjust the exemption form's language,  he and his clients may sue the state. His letter to Dolan ends: "I hope that the department will see fit to make the minor adjustments required in the regulations and accompanying form so that it can proceed with the work it is doing without unnecessary distraction and/or litigation."

Farrell wouldn’t sign the form as is. Despite the department prohibiting any alteration of the form’s language, she changed it because she felt that to maintain her integrity, she had no other choice.

Fortunately, she said, her local school district accepted it. But Farrell said she knows numerous parents who begrudgingly signed a form that put words in their mouth.

Educational materials?

The other major issue raised by Vermonters at the hearing was the lack of information in the state’s required education materials that accompany the exemption form. Many medical professionals and parents even accused the department of misleading the public and disseminating false information.

Bradley Rauch, a chiropractor from Stowe, pointed to a line in the materials that reads: “Most childhood vaccines are between 90 and 99 percent effective in preventing disease.”

But, he said, there’s no mention that the two pertussis vaccinations have efficacy rates lower than 90-99 percent. Those two vaccinations account for two of the state’s nine recommended vaccines in grade-level students.

Nicholas Mortimer of Montpelier questioned the claim in the materials that the “The CDC’s recommended vaccine schedule has been in use for 50 years,” pointing out that numerous vaccines, which are currently recommended, didn’t exist 50 years ago.

The TDaP vaccination, for example, which the state recommends for kids before entering seventh grade, wasn’t licensed for use until 2005. TDaP stands for tetanus, diphtheria and acellular pertussis.

Every person who spoke about the educational materials demanded more and more accurate information on vaccines. Not one person at the hearing defended the current educational materials or the language used in the new exemption form.

Moving forward

Deputy Commissioner Dolan said in an interview after the meeting that she and an “internal team” would review those comments voiced at the hearing and submitted via writing. She thinks the team will get together in the next month.

“We take all comments seriously, and it is possible that we’ll modify our rules, which could include modifications to the form, and it could include modifications to the educational materials,” she said.

But, she added, it is entirely possible that the department won’t change anything.

If the department does decide to make modifications, she said, the department would need to submit them to the Joint Legislative Committee on Administrative Rules for approval.

The earliest those legislators could approve such changes is in January, said Dolan.

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Andrew Stein

About Andrew

Andrew Stein is the energy and health care reporter for VTDigger. He is a 2012 fellow at the First Amendment Institute and previously worked as a reporter and assistant online editor at the Addison County Independent, where he helped the publication win top state and New England awards for its website. Andrew is a former China Fulbright Research Fellow and a graduate of Kenyon College. As a Fulbright fellow, he researched the junction of Chinese economic, agricultural and environmental policymaking through an analysis of China’s modern tea industry. He is fluent in Mandarin Chinese and has been awarded research grants from Middlebury College and the Freeman Foundation to investigate Chinese environmental policies. A member of Investigative Reporters and Editors, his work has also appeared in publications such as the Math Association of America’s quarterly journal Math Horizons and When Andrew isn’t writing stories, he can likely be found playing Boggle with his wife, fly fishing or brewing beer.

Email: [email protected]

Follow Andrew on Twitter @andrewcstein

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