Letter to the Oregon School District
Sandra Duffy, Attorney at Law
December ___, 2002
Allen Melnick, Public Health Officer
Re: Mandatory Immunizations for Seventh Graders
That letter was the result of extensive research I did in medical journals and books which set out the risks associated with vaccines. What I found greatly disturbed me. I concluded that that my child faced more risk from the vaccines than from the diseases they are intended to prevent. My letter also expressed concern about the use of a mercury based preservative in the vaccines (thimerosal). I urged the school district and local and state health departments to conduct their own research and reevaluate the wisdom of compulsory immunizations.
I received three responses to my letter. One, from a reader of the Lake Oswego Review, thanking me for the article and supporting my concerns. Another from the Lake Oswego School District - an envelope containing only a Religious Exemption Application enclosed. And, a four page letter from the State Health Division, Immunization Program, that made five points: (1) that thimerosal had been used safely for 60 years and my child would get more mercury in a can of tuna fish than from a Hepatitis B vaccine; (2) that there were statistics from the CDC which inferred a serious health problem with Hepatitis B in the American population; (3) that the Oregon Health Division had relied on recommendations from federal and medical authorities in adopting the mandatory vaccines; (4) that I could avoid the issue by signing a religious exemption; and (5) that the immunization Program is committed to "protecting the health of Oregonians by reducing cases of vaccine-preventable diseases." ( A copy of the state's letter is enclosed.)
It is now December 2002 and my son is 12 and a student at Lake Oswego Junior High. I have been struggling with a moral dilemma: do I sign a Religious Exemption, protect my son and ignore the social justice issue? Or, do I challenge the state on this exceedingly important health issue?
My religion is unequivocal in stating that each of us has an obligation to work for social justice. I also have seven grandchildren in the Metro area and my three daughter-in-laws are asking me: What are we going to do when they go to school?
So there is the answer to my dilemma - for my youngest son, for my grandchildren and for all Oregon children, I am going to force the state, the county and the school district to look at the science and policies behind each vaccine. I am going to require each of you to articulate the compelling state interest in mandating each vaccine in abrogation of fundamental constitutional rights: a First Amendment right to life, liberty, privacy and bodily integrity as applied to the states by the Fourteenth Amendment. The interest of parents in the care, custody, and control of their children is the oldest of the fundamental liberty interests recognized by the United States Supreme Court. The right to be free from non-consensual experimentation on one's body (the right to bodily integrity) is a right which is recognized throughout this nation's history.
My original concerns about vaccines centered around the claims by parents of autistic children that the mercury in vaccines was causing autism. Contrary to the information contained in the letter I received from the Oregon Health Division claiming a sixty year safety record for thimerosal, the scientific evidence is very strong that the thimerosal has been a serious concern for many years.
In the course of multiple lawsuits brought by these parents, plaintiffs' attorneys obtained a document which is the proverbial "smoking gun." It is a transcript of the "Simpsonwood Meeting," a meeting held in July 2000 of medical doctors acting as an advisory committee to the CDC's Advisory Committee on Immunization Practices (ACIP). The transcript revealed that there are studies showing a statistically significant relationship between vaccinations and specific health harms. Vaccines with thimerosal given at 2 months of age correlate to developmental delays; exposure at 3 months correlate to tics; and, exposure at 1, 3 and 6 months correlate to speech delays. (Enclosed is a document which contains excerpts of the 238 page transcript of the meeting; see excerpts from pages 40-78).
There are other equally bone-chilling statements in this document. After an attempt by one of the participating doctors to discount the significance of the negative evidence, a Dr. Weil concludes: "The number of dose related relationships are linear and statistically significant. You can play with this all you want. They are linear. They are statistically significant. (Excerpt from page 207.)
And a Dr. Brent, at page 229 says: "The medical legal findings in this study, causal or not, are horrendous and therefore, it is important that the suggested epidemiological, pharmacokinetic, and animal studies be performed. If an allegation was made that a child's neurobehavioral findings were caused by Thimerosal containing vaccines, you could readily find a junk scientist who would support the claim with a "reasonable degree of certainty." But you will not find a scientist with any integrity who would say the reverse with the data that is available. And that is true. So we are in a bad position from the standpoint of defending any lawsuits if they were initiated and I am concerned.
Dr. Clements, at page 247 suggests that: "this study should not have been done ... because the outcome could have ... been predicted, and ...now we are left hanging."
Dr. Bernier at page 113 says: "We have asked you to keep this information confidential ... basically keep this embargoed information."
And, perhaps most telling of all is a quote from Dr. Johnson at page 198: "My gut feeling? It worries me enough. Forgive this personal comment, but I got called out a[t] eight o'clock for an emergency call and my daughter-in-law delivered a son by C-section. Our first male in the line of the next generation, and I do not want that grandson to get a Thimerosal containing vaccine until we know better what is going on. It will probably take a long time. In the meantime, and I know there are probably implications for this internationally but in the meantime I think I want that grandson to only be given Thimerosal-free vaccines." (Emphasis added.)
Are you as stunned as I am? These medical doctors are admitting that they are aware that thimerosal containing vaccines are causing serious adverse health affects; they don't want the children in their families exposed to theses vaccines; they "embargo" the information from public scrutiny but they are willing to allow millions more children, in America and internationally, to be exposed to the dangers of thimerosal and to suffer the harm. To this day the use of thimerosal in vaccines has not been banned.
This scenario leads me to conclude that I cannot rely on the CDC or the FDA to determine the safety or effectiveness of medical treatments for my family. I cannot rely on my family physician, or the state or county health departments because they all, with unquestioned trust, look to the CDC and FDA for guidance, neither of which brook skepticism from outsiders. I do my own research and make my own decisions. What follows is a small part of the information I learned which leads me to conclude that I do not want my son to have these vaccines:
Evidence that vaccinations are neither safe nor effective.
MEASLES: In 1900 there were 13.3 measles deaths per 100,000 population. In 1955 (8 years before the measles vaccine) the death rate was .03/100,000. In the 1970's (post vaccine) the death rate was still .03/100,000. The most recent statistics (2000) from CDC indicates that there is 1 measles case for every one million citizens, and there were no deaths. Out of the reported 86 cases, vaccination status was known on 48, and 24 of those (50%) had been vaccinated. Most cases have been identified as being imported from other countries. The CDC states: "The consistently small number of unknown source cases suggests that measles is no longer endemic in the United States."
According to a study conducted by the World Health Organization (WHO) (National Health Federation Bulletin, November 1969) chances are about 14 times greater that measles will be contracted by those vaccinated against the disease than by those who are left alone.
What is never mentioned by the CDC or vaccine proponents is the number of serious adverse health effects of vaccines. Here are the ones that concerned me:
1. Marcel Kinsbourne, M.D., of Tufts University
asserts that autoimmune reactions have been reported for the measles
CHICKEN POX: Chicken Pox is a mild disease which was dangerous only for vulnerable populations (eg. cancer victims). Merck Laboratories, the exclusive maker of chicken pox vaccine, persuaded the federal government to mandate the vaccine for all children based on economics. It presented evidence that businesses would save $400 million if parents did not have to take time off to care for children with chicken pox. However, there are many side effects of the chicken pox vaccine which have health care costs associated with them which were not taken into account for the economic analysis. These include:
1. Shingles is now found in children whereas
previously it was found almost exclusively in people over 50 who had
had chicken pox.
The CDC has reported that between 1995-1998 there were 67.5 adverse events per 100,000 doses The CDC goes on to state that it is believed only 10% of adverse events are reported. Adverse events have been correlated to contemporaneous MMR injections.
As noted above, the chicken pox vaccine was developed to prevent chicken pox in children with leukemia and other cancers. However, the CDC recommends that the vaccine not be given to such children or those with compromised immune systems for fear of serious adverse effects.
HEPATITIS B: Hepatitis B is not common in childhood and is not highly contagious. It is primarily an adult disease transmitted through infected body fluids, most frequently infected blood, and is prevalent in high risk populations such as needle using drug addicts; sexually promiscuous heterosexual and homosexual adults; residents and staff of custodial institutions such as prisons; health care workers exposed to blood; persons who require repeated blood transfusions and babies born to infected mothers. On the other hand there are many side effects to the vaccine itself, some very serious:
A. Those identified by the CDC :
Further, Bonnie Dunbar, PhD, professor of cell biology at Baylor College of Medicine, Houston, TX, who is an expert in the development of vaccines, believes Hepatitis B causes autoimmune disease like MS. Her brother became disabled with an MS-like condition after receiving a Hepatitis B vaccination. Additionally, Dr. Dunbar's research assistant became partially blind after receiving a Hepatitis B shot. Dr. Dunbar is doing an investigation to determine what is happening. She theorizes that it is the genetic engineering of the vaccine that triggers an autoimmune response.
The National Institute of Health (NIH) has turned down Dr. Dunbar's grant requests for research funds to study this issue. NIH and other government agencies have been quoted as saying: "There is no confirmed evidence that Hepatitis B vaccine causes chronic illness, including Multiple Sclerosis, CFS (chronic fatigue syndrome), rheumatoid arthritis or autoimmune disorders." And these agencies are making sure that U.S. tax dollars are not used to provide such scientific evidence.
Shouldn't vaccine manufacturers be required to prove their products are safe rather than U.S. Citizens having to prove they are unsafe with no resources to do so?
8. Hepatitis B vaccine is manufactured using yeast. Yeast can cause allergic reactions in those who are sensitive to it
A Temporary Restraining Order will be sought to prevent my son's exclusion from schoo9l for nonvaccination, If I am served with an Exclusion Order for my son, I will be prepared to file a Temporary Retraining Order (TRO) and a Complaint with constitutional claims in the United States District Court for the District of Oregon.
When I petition the Court for a TRO to prohibit the state, county and school district from excluding my son from school, I will have to show: (1) irreparable harm if the Petition is not granted, as well as: (2) a likelihood of winning the lawsuit on the merits. Since Oregon, unlike other states, will indefinitely exclude children for nonvaccination, my son will be deprived of a public school education in this state. Attending a private school is not an alternative since the vaccination requirements purport to apply to private schools as well as public schools. I believe any court will find deprivation of an education to be irreparable harm.
I must also show the court a high likelihood of prevailing on the merits of the lawsuit. My Complaint would allege that Oregon Laws and Oregon Administrative Rules that mandate that a seventh grade child receive a Hepatitis B, a chicken pox and an MMR vaccination upon pain of loss an education is unconstitutional under both the state and federal constitutions. Prohibiting an education to a child who resides in Oregon is also the taking of a property right. When a government acts to deprive citizens of constitutional rights it gives rise to a civil rights claim under 28 USC Sec. 1983.
The Fourteenth Amendment of the U.S. Constitution provides that no State shall "deprive any person of life, liberty, or property, without due process of law." The U.S. Supreme Court has historically recognized that the 14th Amendment Due Process Clause "guarantees more than fair process." Washington v. Glucksberg, 521 U.S. 702 (1997). The Clause applies due process to the states and includes a substantive component that "provides heightened protection against government interference with certain fundamental rights and liberty interests." Id. at 720.
There are several fundamental rights at issue here. Parents have a liberty interest in the care, custody and control of their children. It is perhaps the oldest of the fundamental liberty interests recognized by the U.S. Supreme Court. Meyer v. Nebraska, 262 U.S. 390, 399 (1923) (the liberty interest protected by the Due Process Clause includes the right of parents to establish a home and bring up children and to control their education). See also, Prince v. Massachusetts, 321 U.S. 158 (1944)("it is cardinal with us that the custody, care and nurture of the child reside first in the parents, whose primary function and freedom include preparation for obligations the state can neither supply nor hinder") and, Parham v. J.R., 422 U.S. 584 (1979) ( "Our jurisprudence historically has reflected Western civilization concepts of the family as a unit with broad parental authority over minor children. Our cases have consistently followed that course..."). The traditional presumption is that a fit parent will act in the best interest of his or her child. Troxel v. Granville, 530 U.S. 57, 59 (2000).
An individual also has a fundamental right to "bodily integrity" under the principles of liberty and autonomy implicit in the federal constitution. In re: Cincinnati Radiation Litigation, 874 F. Supp 796 (SD Ohio 1995). In that case, between 1960 and 1974 the University of Cincinnati College of Medicine with funding and authorization from the U.S. Department of Defense's Nuclear Agency, conducted medical experiments on patients with inoperable cancer but in reasonably good clinical condition. In the experiment the patients were subjected to levels of radiation expected to be found on a nuclear battlefield. Patients were not told they were subjects of an experiment and were falsely told that the radiation was a potentially curative medical treatment.
The Court in the Radiation case found a fundamental right to "bodily integrity" by looking at the primary position that individual autonomy occupied in the ideology of the Framers of the U.S. Constitution. The Bill of Rights sought to limit government power because the American revolutionaries regarded "the exercise of coercive power by the sovereign as suspect." The Court relied upon Lockean philosophy which recognizes, as a central principle, a "certain minimum area of personal freedom which must on no account be violated."
The court cited Ingraham v. Wright, and identified one of the "historic liberties" as the "right to be free from ... unjustified intrusions on personal security." The Court analogized the right to bodily integrity to the recognized right to privacy in matters of procreation, and defined both as constitutionally protected autonomy rights." The Court found that use of the coercive power of the state which violates a person's right to bodily integrity implicates the Due Process Clause.
The Court analyzed four cases dealing with nonconsensual invasive medical procedures from 1905 to 1965. One of those cases, Jacobson v. Mass, upheld compulsory smallpox vaccinations in an adult population to prevent spread of thedisease. That districtcourt carefully pointed out that this invasion was allowed because of imminent danger of a small pox epidemic. Additionally, it noted that Jacobson expressly declines to decide whether a compulsory vaccination which would "seriously impair the health" of an individual would be upheld.
The Court then looked at Schmerber v. California, (1965) which held similarly to Jacobson, that an invasive medical procedure must be "minor" and "performed under stringently limited conditions." 100 The Court equally relied on the common law requirement of informed consent even though it has been subsumed into the tort of medical malpractice. The Court in Cincinnati found that the radiation experiments produced lasting effects such as bone marrow failure and premature death and were not "minor" but "extremely invasive" and, if nonconsensual, impermissible under the Due Process Clause 108-109
The Court also recognized the Nuremberg Code as a cognizable standard ofdue process protection under the US Constitution. The Court found that adoption of the guidelines of the Nuremberg Code by the National Institutes of Health to be further support of its constitutional significance. 115 See also, Stadt. University of Rochester, 921 F Supp 1023 (WNY 1996)(the Court found that the plaintiff had a clearly established right in 1946 to be free from being injected with plutonium by the government without his consent; furthermore, the plain language of the constitution leads a reasonable person to the conclusion that government officials may not arbitrarily deprive unwilling citizens of their liberty and their lives, citing In re Cincinnati).
Thus, I have shown that US Supreme Court case law supports my individual fundamental right to make medical decisions for my child; and, also supports my child's individual right to bodily integrity, i.e. a right to informed consent prior to medical treatments and a right to not consent to such treatments. Since he is a minor, I exercise those rights for him in his best interests.
Statutes, such as Oregon's mandatory vaccination laws are subject to "strict scrutiny" because they significantly interfere with these fundamental rights. Zablocki v. Red Nail, 434 US 374, 386-88 (1978). ORS and OARet seq. , usurp the decision making function of parents with respect to medical treatments their children will have. This decision making function lies at the core of parents' liberty interest in the care, custody, and control of their children. To hold that these statutes and administrative rules are not a significant interference would be to effectively obliterate these fundamental rights.
Since these statutes and administrative rules significantly interfere with fundamental rights, the laws must be subjected to strict scrutiny and they can only be justified if the state has a compelling interest. US cite _____ Furthermore, even if a compelling state interest is found, the laws must be narrowly tailored to serve the compelling interest LULAY and US SUP Ct case. GET PRINCE V. MASS 321 US 158 1944 The Oregon Statutes and Administrative Rules fail the "compelling state interest" test. OAR 33-019-0015(4) authorizes the local health officer to exclude from any school in his/her jurisdiction a child with a "school restrictable disease" until a "physician, public health nurse, or school nurse certifies that the child is not infectious to others." OAR 333-019-0015(1) lists the restrictable diseases which includes chicken pox, mumps, measles and rubella, but does not include Hepatitis B. OARE 33-019-0015(3) indicates that Hepatitis B is a "restrictable disease only for immunization purposes."
Thus, a child who actually has Hepatitis
B is not excluded from school, but a child who does not have a Hepatitis
B vaccine is excluded from school. Presumably the "compelling state
interest" in a vaccine program is to prevent the spread of a disease
which prevents a serious health risk to the population. Hepatitis B
fails the test at every level.
The state purports a compelling state interest in vaccination for mumps, measles, rubella and chickenpox because these are communicable diseases and are identified as "restrictable diseases."
Chicken pox fails the compelling state interest test because the admitted primary interest in mandating the chicken pox vaccine was to save businesses $400 million dollars in sick leave when parents care for children with chickenpox. Furtherance of the economic interests of business can never justify the taking of fundamental rights from parents. The chickenpox vaccines also fail the "compelling state interest" test because the economic and health casts associated with adverse effects of the vaccine were never facto4red in with the economic benefits.
The MMR also fails the "compelling state interest" test. Measles are no longer endemic to the US; the naturally occurring diseases have low risk factors in young children and confer lifelong immunity; the efficacy of the vaccines wane leaving at risk the unborn children of young women vulnerable to the diseases; and, deferred mumps leaves young men vulnerable to sterility.
Even assuming there is a compelling state interest in the MMR vaccine, the laws are not the lease restrictive alternative. The laws indefinitely exclude unvaccinated children from school. Other states, such as Arizona, only exclude children when there is evidence to believe an epidemic exists. And, since half the children who get measles are vaccinated, the exclusion order should exclude both vaccinated and unvaccinated children in order to avoid equal protection claim.
Conflicts of Interest
As Americans we have become intellectually lazy. We allow people we don't know make life and death decisions for us. We are finally coming to understand that Corporate America has succeeded in manipulating the government to adopt laws, rules and policies which enhance the economic interests of business.
Why would we assume that vaccine manufacturers are not engaged in the same manipulative politics? To win a mandated vaccine is the equivalent of grabbing the brass ring on the corporate merry-go-round. It means billions of dollars in profit. I do not expect vaccine manufacturers to have much concern about my 12 year-old son. He is a three-dose-user-unit in their corporate parlance.
For example, the nonprofit, Immunization Action Coalition (IAC) encourages parents to vaccinate their children. The IAC funds the Hepatitis B Coalition, a national effort to assure all children receive the Hepatitis B vaccine. IAC receives its funding from private donations including a grant from SmithKline Beecham, which manufactures one of the two Hepatitis B vaccines on the market. CDC also gave IAC a $750,000 grant. Is the mission of IAC to provide a national health benefit or to market a product for vaccine manufacturers?
I am very disturbed at how the federal government, which has no power tomandate vaccines, coerces states to do it. The US Department of Health and Human Services distributes more than $400 million annually to states, "awarding" them $50-100 per child who is "fully vaccinated" with the vaccines ACIP recommends be mandated. Public-health-dollar-starved states comply without ever doing independent research on the health implications for its citizens. What are states paying in educational and health dollars to cope with the side effects caused by the plethora of vaccines now mandated?
OHD's letter to me in 1999 was patronizing. My concern about mercury in vaccines was summarily dismissed. The fact that thimerosal has now been removed from childhood vaccines corroborates the validity of my concerns. The CDC information cited by OHD is misleading. CDC/OHD claim that Hepatitis B is more likely to cause serious illness than getting the vaccine. While literally true, the risk of getting the disease is nearly zero while the risk of experiencing an adverse event is significant. OHD admits its entire state immunization program is based on a federal program which has been shown to be flawed. No state agency is evaluating the scientific literature and making independent decisions about the efficacy and safety of vaccines. OHD attempted to make me go away by urging me to execute a Religious Exemption to avoid undermining its very shaky immunization program.
And finally, OHD fails to recognize that is has responsibility to protect the health of Oregonians from adverse effects of unsafe vaccines, as well as "protecting the health of Oregonians by reducing cases of vaccine-preventable diseases." (See attached OHD letter.)
If OHD has traded suppression of a small number of vaccine preventable disease for autism, autoimmune disease, allergies, childhood shingles, encephalitis, death, demyeliting diseases, blindness, loss of IQ, Multiple Sclerosis, Chronic Fatigue Syndrome, diabetes, asthma, arthritis and other life altering chronic disease, it has been a poor tradeoff.
This issue of compulsory vaccines pits the advocates for health choice on one side and the champions of public health on the other. I consider myself both. But I also refuse to abrogate my duty as a parent and reserve the right to assure myself that "health" is the outcome of my child being vaccinated.
US vaccine policy is flawed. The clinical trials are too small, too short and too limited in populations. When you also consider the underreporting of adverse effects, the evidence is far too poor to allow the government to override parents' and patients' decisions. It is time for the Oregon Health Department to choose the health of Oregonians over the vitality of the CDC's immunization programs.
Cc: Parents of Oak Creek Elementary 6th