Potential loophole in vaccine law could mandate vaccines in children during declared emergency

Monday, November 07, 2011 by: Greg Glaser
Tags: vaccine exemptions, emergency, health news

(NaturalNews) In times of peace, every State in America allows exemptions from vaccines on religious, moral, and/or philosophical grounds, so vaccines are never technically mandatory. [1] Parents even have the power to assert the exemptions of their children. [2] The US government also admits that vaccine exemptions are available during both peacetime and during an emergency for parents and children alike. [3]

However, there is a potential loophole applied to children specifically that could theoretically be exploited by the powers-that-be. During an emergency, if a parent exercises a vaccine exemption, they can be placed into quarantine or isolation to 'protect the public'. [4]

Once the parent is placed into quarantine/isolation, there is no guarantee that the unvaccinated parent and child will remain together in the same quarantine/isolation area (see legal citations below), so a parent can automatically lose his/her ability to provide guardianship to his/her minor children.

Thus, the children can become wards of the State upon a parent's refusal to accept vaccination. And the State can be expected to vaccinate the children at its first opportunity, or put them in the care of a family member willing to vaccinate. [5]

In order to close this loophole and protect the right of children to be peacefully natural, States should do the following:

First, pass a clear law that parents in quarantine or isolation do not lose their fundamental parental rights to assert their child's vaccine exemption.

Second, pass a clear law that during a declared emergency families shall be entitled to self-quarantine together by remaining on private property until cleared to leave by the family's medical or naturopathic doctor.

Legal Overview Exposing the Loophole

Quarantine laws have traditionally been interpreted to be within the State police power to regulate "public health and safety." [6]

Citizens can view the quarantine and isolation laws in their state by navigating to the table on State quarantine law provided by the National Conference of State Legislatures (2010). [7] In California, for example, the rules are very open-ended and therefore deferential to the State. [8]

According to a year 2010 law review article, "A search of California health codes and local ordinances shows that California merely grants health authorities the power to quarantine but does not implement a system of overseeing the quarantine process... In fact, similar to California, many states have historically lacked comprehensive quarantine procedures and developed their quarantine regulations on an ad hoc, disease-by-disease basis." [9]

Importantly, States have also been passing provisions of the (military-sponsored) Model State Emergency Health Powers Act. [10] This Model Act contains no safeguards allowing parents to stay with their children during quarantine. Safeguards are limited and frequently ad hoc -- historically, and also by some State statutes today, public health authorities have allowed families to quarantine together in certain instances -- it appears to depend on the nature of the perceived threat. [11]

At the federal level, the Public Health Service Act (42 U.S.C. section 264) and its CFR regulations (42 CFR parts 70 and 71) give the government wide discretion in quarantine powers. [12]

Even the hospital sector (which stands at the ready to implement public health orders) recognizes its role in separating and unifying parents. For example, according to the emergency response guidelines of the American Academy of Pediatrics (2009), hospitals should prepare "A plan that minimizes parent-child separation and includes system tracking of pediatric patients, allowing for the timely reunification of separated children with their families." [13]

How comforting is this? Can we really expect unvaccinated (natural) children to be processed by the system of state and hospital control without being needled?

Indeed, in the midst of an emergency, just imagine the logistics of ensuring an unvaccinated child asserts his/her proper vaccine exemption throughout each stage in a quarantine processing. Medical professionals relying on government FAQ papers and Fact Sheets to understand their responsibilities during an emergency are likely to feel they have the power to vaccinate (and more) in the parents' absence. [14]

End Notes

(1) See e.g., Vaccine Legal Exemptions, by Alan Phillips (2011). See also, Constitutional Law Analysis Memo on Forced Vaccination During Emergency, by Greg Glaser (October, 2010).

(2) Id.

(3) See e.g., Mandatory Vaccinations: Precedent and Current Laws, by Congressional Research Service (February 2011). See also, Glaser, supra.

(4) Id., Federal and State Quarantine and Isolation Authority, by Congressional Research Service (January 2007). A "quarantine" is either like 'house arrest' or a 'concentration camp' with others. By contrast, "isolation" is like a prison cell for one person.

(5) See e.g., California Welfare and Institutions Code section 300 et seq.

(6) See e.g., Morgan's L. & T.R. & S.S. Co. v. Bd. of Health (1886) 118 U.S. 455; Compagnie Francaise de Navigation a Vapeur v. State Bd. of Health (1902) 186 U.S. 380.

(7) It appears noteworthy that the National Conference of State Legislatures highlights in terms of State power, "The parens patriae power is the power of the state to serve as guardian of persons under legal disability, such as juveniles or the insane. See Heller v. Doe, 509 U.S. 312, 332 (1993) ('[T]he state has a legitimate interest under its parens patriae powers in providing care to its citizens who are unable to care for themselves....')"

(8) "Each health officer shall enforce all orders, rules, and regulations concerning quarantine or isolation prescribed or directed by the department." Cal. Health and Safety Code section 120195. "Each health officer, whenever required by the department, shall establish and maintain places of quarantine or isolation that shall be subject to the special directions of the department. Cal. Health and Safety Code section 120200.

"A person subject to quarantine or strict isolation, residing or in a quarantined building, house, structure, or other shelter, shall not go beyond the lot where the building, house, structure, or other shelter is situated, nor put himself or herself in immediate communication with any person not subject to quarantine, other than the physician, the health officer or persons authorized by the health officer." Cal. Health and Safety Code section 120225.

"All physicians, nurses, clergymen, attendants, owners, proprietors, managers, employees, and persons living with, or visiting any sick person, in any hotel, lodginghouse, house, building, office, structure, or other place where any person is ill of any infectious, contagious, or communicable disease, shall promptly report that fact to the health officer, together with the name of the person, if known, the place where he or she is confined, and the nature of the disease, if known." Cal. Health and Safety Code section 120250.

(9) A History of Abuse and Lack of Protection: The Need to Update California's Quarantine Powers In Light of the H1N1 Influenze Outbreak, by Arsen Kourinian, Loyola of Los Angeles Law Review, Vol. 43:693 (2010).

For illustrative purposes, see also the "Procedures for isolation or quarantine" in the State of Washington: WAC 246-100-040. And see also this Massachusetts law, "The Department or local board of health may authorize physicians, health care workers, mental health workers, personal care attendants, parents or guardians of minor children, and others access to individuals in isolation or quarantine as necessary to meet the needs of isolated or quarantined individuals." Massachusetts Reportable Diseases, Surveillance, and Isolation and Quarantine Requirements, 105 CMR 300.210(H)(2)(e).

(10) According to the quasi-military Center for Law and the Public's Health, even as of 2006, "thirty-eight (38) states and the District of Columbia have passed sixty-six (66) bills that include provisions from or closely related to the Act. The extent to which the Act's provisions were incorporated into each state's laws varies." Legislative Surveillance Table.

Regarding the military-industrial complex role in vaccines, see Constitutional Law Analysis Memo on Forced Vaccination During Emergency, by Greg Glaser (October, 2010).

(11) See e.g., Paula Mindes, Tuberculosis Quarantine: a Review of Legal Issues in Ohio and Other States, 10 Journal of Law and Health 403-418, 408-413, 418-423 (1995-96) ("The public health powers in state statutes include: compulsory examination and treatment, emergency detention and quarantine. Quarantine may be defined as either in-home isolation or commitment to state facilities. These measures are accomplished through public health orders or court orders. Some states have civil and/or criminal penalties for failing to comply with a such an order. Other statutes do not spell out penalties. Some statutes define which diseases are contagious and therefore subject to quarantine regulations. Others authorize state health departments to decide which illnesses are contagious. Some empower public health authorities to make quarantine or isolation decisions without any direction as to illnesses or conditions. Thirty-three states permit authorities to isolate people in their homes. In most cases there are no due process protections specified out in the law. Forty-two states permit commitment to treatment facilities. Thirty-six states require a court order to commit someone to a facility. Several do not require a court order or a hearing. Generally court orders will be initiated by a petition from public health authorities requesting a hearing. Written notice to the person concerned is usually required, but the hearing may be held with or without the patient. Only thirteen states explicitly grant the right to be represented by counsel in any part of the proceedings. Of these, eleven will provide counsel to indigent individuals. Release is accomplished when a determination is made that the person is no longer a threat to the public health, or no longer infectious. Some statutes specify criteria for release which may be vague ("no longer a danger to the public health") or specific (evidence in sputum tests that the person is no longer actively contagious). Ten states have no statutory time limits on the length of time a patient may be held without discharge or recommitment. In many states the only explicit due process protection afforded persons who are quarantined is the opportunity to petition the court for release.")

(12) See for example the FEMA guidelines, because as noted by the American Academy of Pediatrics in a letter to FEMA, dated November 9, 2007, "ESF #6 fails to address how it will support States or other entities in caring for children whose caregivers may be killed, ill, injured, missing, quarantined, or otherwise incapacitated for lengthy periods of time. Legal and other issues must be addressed in the case of children who may require non-family care for weeks or months, or who must be taken into the care of the State." FEMA rejected this recommendation, as can be seen in both ESF #6 -- Mass Care, Emergency Assistance, Housing, and Human Services Annex (January 2008) and ESF #8 -- Public Health and Medical Services Annex (January 2008).

(13) See, Emergency response guidelines of the American Academy of Pediatrics (2009).

(14) See e.g., Overcoming Legal Obstacles Involving the Voluntary Care of Children Who are Separated from their Parents During a Disaster. Journal of Pediatric Emergency Care, by Foltin G., et al (June 2008).