"Unless we put medical freedom into the Constitution, the time will come when medicine will organize into an undercover dictatorship…to restrict the art of healing to one class of men and deny equal privileges to others will constitute the bastille of medical science. All such laws are un-American and despotic and have no place in a republic… the Constitution of this republic should make special privilege for medical freedom as well as religious freedom."
Attributed to Benjamin Rush, MD, Signer of the Declaration of Independence (from The Autobiography of Benjamin Rush , Princeton University Press, 1948.) but not verified.

EXCERPTS FROM ILLINOIS IMMUNIZATION ADVISORY COMMITTEE MEETING
October 12, 2000

RE: RELIGIOUS EXEMPTIONS

Nancy Khardori, M.D. Chairwoman, Division of Infectious Diseases/Southern Illinois University School of Medicine/Springfield
Dr. Khardori: Next item under old business is the proposed changes to the immunization rules. I gather this is where we will spend some time. I hope you all have received a package and have been able to go over it. But before I go into that, because I do realize that is going to take some time, we have an attorney with Ms. Eaton here for some comments and discussions.
If everyone is okay with that, we can go ahead and do their item first and then go over other things so she can go to court and take care of her other business. Is it a she or is it a he?

Fran Eaton, President, Eagle Forum of Illinois
Ms. Eaton: It's a she, Ms. Birt. Just like you say, the portion we'll be addressing is the changes in the religious exemptions, and that's the portion we'll be addressing.
I need some input on that, and I asked Ms. Birt to come and give a different perspective on the - the assumption is that the legal counsel of the State Board is already in agreement with these proposals.
So in order for me, as a layperson and I think this board as a whole, to have a good legal background on what would happen if we made these proposals and advised Dr. Lumpkin to go ahead with these.
I wanted us to be able to have a full presentation on what's going to be discussed here today. So I wanted to ask Ms. Birt if she would come to do that for us. She has a five to seven-minute presentation.

Richard Galati, Public Service Administrator - Illinois Department
of Public Health
Mr. Galati: What the Department proposes to do is to make the language in this particular section of the Child Health Immunization Code consistent with the language that was contained in the guidelines that were distributed to all schools in the state through the State Board of Education in August.

Ms. Eaton: Ms. Birt, would you come?

Ms. Birt: My name is Elizabeth Birt. I'm an attorney here in Chicago. I'm also a member of a group called the Coalition for Safe Minds, and I'm also a member of a group called Medical Intervention for Autism.
I'd like to thank Fran Eaton for asking me to address your group today on the subject of vaccinations and religious exemptions under Illinois law.
The last time I was asked to testify regarding the subject of vaccines, it was in July of this year in front of Congress and Dan Burton's (C)ommittee on (G)overnment (R)eform regarding thimerosal, (mercury) a neurotoxin which is used as a preservative in pediatric vaccines in the U.S. (m)arket.
Although not the subject of this meeting, I have brought information for the Department of Health regarding this issue including recent information from an independent toxicologist, biochemist, (B)oyd Haley, chairman of the Department of Chemistry at the University of Kentucky.
This new clinical information raises serious issues regarding not only the neurotoxicity of thimerosal, but thimerosal contained with aluminum, a combination found in all but one of the DTaP vaccines.
The subject here today is religious exemptions, and I'm limiting my comments and excluding my comments from the day care and college-age statute because the gentlemen that spoke before was quite correct. The statutory language is quite clear as far as the religious exemptions.
But for school age children, the section that really controls in the Illinois law is 410 IL CS 315/2. This is the statutory authority from which the Department of Health must derive its basis for promulgating any regulation regarding religious exemptions.
It is very clear, and I quote, the parents or guardian of the child objects thereto on the grounds that the administration of immunization agents conflicts with his religious tenets or practices.
The Supreme Court of the United States as well as other lower state courts has not required membership in an organization as necessary for a person to claim religious freedom under the first Amendment.
If these regulations are passed - and I'm specifically limiting my comments to the school-age children regulations - how can they possibly detail what is and what is not a personal religious belief? I submit that they cannot.
The State of Illinois has spoken on this issue before in the form of a 1983 Attorney General's opinion regarding the exclusion of children from school who had not been immunized, based upon religious exemptions, for a 21-day period following an outbreak of measles.
The Attorney General stated that the rule providing for the exclusion of children even in the face of religious exemptions from the parents was reasonable because it employed quote, unquote, the least restrictive means; i.e., quarantine, on the freedom of religion. That was no more than necessary to promote an overriding secular interest.
In other words, an important state interest will not justify the limitation of free exercise of religion unless an exemption for religiously-motivated activity would unduly interfere with achievement of that state interest.
What the Department of Health is trying to accomplish here is to cut away - at their regulatory level - at a statute. This is not proper law and will not be upheld in a court of law.
How can a nurse in a school or a registrar in a college decide in a subjective manner if a particular individual's definition of religious beliefs is sufficient?
This is not only abuse of the police power of the state, but a direct infringement on individual's rights under the First Amendment, something that our country prides itself at being distinguished from countries like China where such individual freedoms are not allowed.
I'd like to thank you for allowing me the opportunity to address this group today, and I turn this over to Fran Eaton, and I also have this material with the letter from (B)oyd Haley to Dr. William Eagan at the FDA. I also have the ACIP report issued on thimerosal and a study that's been conducted comparing mercury poisoning to autism. Thank you.(Reports can be read at www.safeminds.org)

Lawrence D. Frenkel, MD, Department of Pediatrics/University of Illinois, Rockford
Dr. Frenkel: If there is no way of defining the grounding of a personal religious exemption, is there going to be any way of making certain that an individual parent cannot arbitrarily and capriciously just on their whim not have their children immunized?

Ms. Birt: And your name is?

Dr. Frenkel: I'm Dr. Frenkel.

Ms. Birt: I've never been before this group before.

Dr. Frenkel: My name (indicating).

Ms. Birt: I couldn't see it, sorry. That raises a very interesting question, and I will say to you that the First Amendment is very clear that a third party or an outside party can't get in your mind and determine what a valid religious belief is, and to try to promulgate rules that put people in that position undercuts the First Amendment, and if you do this, you will be challenged in court.
Do you want to spend the time and money of the Illinois tax payers fighting this? But I guarantee you it's going to happen. Groups like the ACLU and other groups are going to be outraged by this because the First Amendment is by far the one that is upheld most consistently by the courts and by the Supreme Court of the United States. That's what our country was built on.
Otherwise you're going to have bureaucrats trying to tell you how you should or shouldn't feel and judge the quality of those feelings, and that's just not acceptable in this country at this time.

Dr. Frenkel: Let me follow that up. So then, if one takes what you're saying to perhaps a logical conclusion, one could say that they have a religious command, a religious mandate, to cry fire in a crowded theater, and therefore, by the constitution, the State can't prevent them from doing that or even more gravely that they have a religious mandate that they must carry a gun or knife.
As a matter of fact, there is an Indian group of people called (Sikhs) whose religion mandates them to carry a knife in their turban, and so if one takes what you're saying at its face value, it totally undercuts the State's ability to regulate almost anything, and I don't use the weaponry analogy loosely because I personally believe that a parent who capriciously refuses their child an immunization may actually be sentencing their child to death.
I think that is a much, much higher possibility than the child being hurt by thimerosal, and I think most rational people in the world, if they understand the data, would so believe. I think that's really the issue that we're dealing with here.

Ms. Birt: I would disagree with you. I think the issue we're dealing with here is interference by the State with individual freedom.
It's very clear in case law and Supreme Court law - and I can't emphasize this enough - that the First Amendment trumps everything. If the police power is judged sufficient, if there is sufficient enough danger, you have to use the least restrictive means to cut a First Amendment right, and in this case, the quarantine that was allowed.
But this is not least restrictive means. What you're doing is giving some bureaucrat the authority to tell a person what is religious and what is not, and I think you go down a very dangerous slippery slope of interfering with individual freedom, and you're not going to get anywhere in a court of law.
That is the point I came here to tell you today. That is what the law says. This is what we have all agreed to as citizens of the United States. That's why we have First Amendment privileges. That's why Nazis were allowed to go through Skokie to demonstrate their First Amendment right to assemble and have a rally.

Mr. Galati: If we get a call and asked should we accept this, our response has been the Immunization Rules leave that up to each individual local school district for that interpretation because that is actually in the Immunization Rules, where it says: Local school authority is responsible for determining whether the written statement constitutes a valid religious objection.

Dr. Khardori: The sentence I'm referring to is one that says the religious objection may be personal and need not be directed by an established religious organization.
So to me, that means whatever the person's belief is about religion, or whatever religious belief they choose to follow: is that what is being said here?

Ms Eaton: There is a problem that needs to be addressed because on the university level and on the statute level we are now adding to this and these proposals, giving the local school authority to accept or reject the validity of a religious belief….In the university level, it will be a person in the record keeping department that will have the authority to determine the validity of a religious belief….Why are we expanding the role of the local school authority to accept or reject?

Pamela S. Diaz, MD, Medical Director, Communicable Diseases/Chicago Department of Public Health
Dr. Diaz: Can I just ask for some clarification? I'm Pamela Diaz with the Chicago Department of Health. Rich, can I just ask for some clarification because what Fran is describing and what you've described I'm confused about.
I don't see anything in here that says we are giving the school the authority. Isn't that already in the statute?

Mr. Galati: That is already in the rules.

Ms. Birt: It's in the rules, not in the statute.

Ms. Eaton: …we are adding the language the local school authority is responsible for determining whether the written statement constitutes a valid religious objection.

Dr. Khardori: Sort of narrowing it down, the objection that you are raising is to the fact that someone at the school or the college level will determine whether that religious exemption ground is valid or not.

Ms. Eaton: It's more than that….

Bettye Endicott, R.N. School Health Services Consultant, Illinois State Board of Education
Ms. Endicott: I just wanted to say it's also true for the evaluation of whether the immunizations are proper. The person at the school has to review this and determine if they have met the rules.
So it's not only for religious objections, it's for any -

Ms. Birt: I guess what I'm objecting to - and I think it's impossible and it's not constitutional - is for a school nurse to say what is a valid religious exemption. That is not - you can't come up with a standard as to what is a valid religious exemption, and to do so cuts against people's First Amendment rights; it's that simple.

Ms Eaton: Well, it's going to be challenged in court. That is the only way because basically I've got a mom right now… and I have copies of a letter that she wrote.
This parent has submitted a religious exemption that the school nurse has denied the exemption based on the authority given her in the laws as currently stated, and these parents now have to decide what God they're going to serve, the one they believe in their heart is telling them they should not do this or the God that is standing in the door of the school not allowing them to enter because their son has not been fully vaccinated with the Hepatitis B.
It comes down to that and, you know, I have asked this, the Board, be it the State Board of Education, the State Board of Public Health, I believe that it should be a statement made, this is my religious belief and no one has the authority to accept or deny if this is, quote, valid.
You're putting this nurse at the local school now as vulnerable to a lawsuit…So we go back to the nurse. She says, no I'm not going to accept it. We go to the principal who says I'm going to do what the nurse says. Everything is falling on this local nurse. I haven't asked her theological background to see her qualifications to decide whether it's a religious belief….This letter contained the word, God. I mean, if that's stating her religious belief, it's being denied…Also, the State of Illinois has a Religious Freedom Restoration Act that was just put into effect to bolster the First Amendment. This is all information I just learned from another attorney as well. We are to use the least restrictive means. If the government has a compelling interest, they need to use the least restrictive means…

Kevin M. Sherin, MD ,M.P.H.
Dr. Sherin: My name is Kevin Sherin. I'm a family physician on this committee. My question is two-fold and one is for clarification. It seems that what we have is some testimony this morning that would perhaps broaden the interpretation of a religious exemptions to be more of a conscientious objector status, and that is a question that I'm asking as opposed to people that claim a belief in a religious system such as a particular organized religion like Jehovah's Witness or Quakers that mighty object to immunization of various categories and that we are using the example of thimerosal as a reason for religious exemptions.
My understanding of the vaccine industry is that they were moving toward removal of thimerosal from all the vaccines in the United States, that a year ago the FDA came out with a recommendation because of the concern about any traces of mercury anywhere, and I understand the particular fear in Illinois now about mercury of any kind.
Let me just reiterate what our committee has heard before that there is no scientific evidence of harm, that the FDA went to the next step and said even though there is no real cases that have been proven of harm to children, we would recommend that we remove the thimerosal from the vaccines in the United States.
Is that true? Are we not moving as a pharmaceutical industry in that direction?

Ms. Birt: I'd like to answer the question you that you've brought up about the -let's just focus on the religious things, okay. As far as the statutes written in Illinois, it does not define what a religion is.
So my comments today are not broadening anything on a religious basis, okay? If the statute wanted to say or recognize practiced religion and listed them, like Quakers or like Jehovah's Witnesses, that would be another matter, but it didn't and since it didn't, you cannot restrict your interpretation of the statute to those religious groups, number one.
Number two, my comments on thimerosal were that I have new information regarding testing that has been done by a biochemist at the University of Kentucky, and current tests are being done at Wake Forest University on thimerosal-containing vaccines.
There are five DTaP manufacturers out there. Only one of them is thimerosal-free, and there's no preference at the American Academy of Pediatrics level or the ACIP level for thimerosal-free vaccines.
So I just brought that as an interested public citizen to think that people in the Public Health Department would be interested in new science that wasn't available to the FDA a year ago.
That was my sole purpose of raising thimerosal-and thimerosal has nothing to do with a religious exemption. They're two separate items.
I leave you people with this data, but this data from University of Kentucky is very disturbing because it does not just talk about thimerosal, it talks about thimerosal with aluminum, and that is a brand new issue at the FDA level. In fact I was told they had an aluminum meeting in Puerto Rico this summer. One would wonder why you have to go all the way to Puerto Rico to have an FDA meeting, but that's another matter. So that's my response to your questions.

Susanna Roberts, RN, M.S.N., Community Health Promotion/DuPage County Health Department
Ms. Roberts: Dr. Khardori, since we have a court reporter, I wanted to make sure that the wording that Ms. Eaton used was corrected. She said it's a school nurse's responsibility to decide whether it's a valid religious belief. That is not so.
It's the objection that is the case, and I'd like to give an example of that, as a school nurse, I have come across letters that have come to the school saying I am claiming my religious exemption. That is not a valid religious objection.
It does not detail. It does not use any words that could be construed as referring to religion….

Ms. Eaton: I appreciate your correction on my statement, and it is the validity. Nevertheless, that could involve what - to have a government person, quote, representing the public system, tell someone that their belief is not valid or the statement or the objection - I'll take that back - the objection to the vaccination, mandatory vaccination, is based on religious beliefs.
It puts that nurse or whoever the school authority is in a vulnerable position to be - let's just say that I know that it's debatable whether anyone is affected by vaccinations.
Let's just say it is - we have people that have been awarded money from the government because of the damage of vaccinations.
Would that school nurse want to have and to be accountable for being the person that denied the religious exemption and then the family succumbed because they wanted their child in school and there were medical ramifications?
I would not want to be that nurse, and I think it puts the nurse in a very difficult position, and no one wants to be accountable for that at this point, but it is an issue.
So I just brought all this forward because it seemed to me that we were narrowing. The religious objection may be personal and need not be directed by the tenets of an established religious organization; that's already in law. To me, it would be simply a statement saying this is what I believe, and it is left at that.
There is no one in a position to say that's unacceptable, and that is my point.

Dr. Khardori: Ms. Eaton, you said one concern was that somebody was determining the religious exemption. What was the other concern?

Ms. Eaton: The other concern was the specifying that a certain religion - natural laws of health. I think we need to understand there is a religious basis. You can say what you want.
There are atheists in this world. There are naturalists. There are people that do not believe in a supreme being, and they base their religious world view on naturalism.
For us to say that the phrase called natural laws of health is not acceptable begins implying there is a state-approved religion, and I find that to be troublesome and dangerous that we specifically begin pulling out phrases.
Maybe the Department doesn't realize that there are people that don't believe in a supreme being, and therefore, they have no religious basis.
I mean, it is a religion not to believe in God. It is a religion to (believe) in God, and we are really in muddy waters when we're going to begin pulling out phrases that we're not going to say is acceptable religious beliefs.

Dr. Frenkel: You know what? It's amazing, Fran, that we agree on something. I appreciate your candor, if and everybody heard you correctly, or if I heard you correctly, basically what you're saying is that a parent should have the privilege and the right of refusing immunizations really without any specific basis other than their own assessment of what they want, and that's exactly what I'm very concerned about.
I think - obviously I'm not a lawyer, and physicians often don't see eye to eye with lawyers. I should go one step further. I also agree with you that it is unfair to make the school nurse the final arbiter of this issue. I think that was an egregious error on the part of our legislators…I can see where each case that the school nurse decides in Illinois henceforth will go to a court of law and will use up tremendous resources in this state where the lawyers will argue fine points of individual liberty. I can see as this happens that we have epidemics of contagious disease….I would like to see us discourage in our amendments and our recommendations arbitrary and capricious exemptions to the immunization regulations….

Ms. Eaton: It doesn't solve the quandary that we have.

Dr. Khardori: I was going to come to come to that. Then we can sort of ask or appeal the Department to look at this issue as a whole and go back to legislatures and do whatever they need to do…

Ms. Eaton: Can I ask a question about procedure? Then if we wanted to change what is there, what would you have to do? Would that be a proposal, a reg. thing, or would you have to go-

Dr. Khardori: What I would recommend is for us to send a note to Dr. Lumpkin to ask him if this committee has a charge to go to an area like that, …

Dr. Frenkel: Why is it more burdensome to limit religious exemptions to specific religions than to allow religious exemptions that arise from the whim of one person? Explain why that's more burdensome for the people who have to enforce the law.

Ms. Roberts: In a religious context, I don't like the use of the word, whim. I believe if it is religious, and again I have a guideline here that I'm supposed to determine what constitutes a religious exemption, I personally wouldn't call it a whim.

Dr. Frenkel: Explain to me because I'm missing how you determine whether something is a valid philosophical individual religious exemption versus a whim. Explain to me how you do that.

Ms. Roberts: When a parent comes in to me as the school nurse and says, my husband and I have prayed on it and we feel it is not God's will to immunize, I have no problem with that, and I have been a public health nurse for 25 years.

Dr. Frenkel: Well, I honor your sentiment, but I can tell you it's very easy for someone to come in and say they prayed about this and don't want to do that. That is not an objective or validatable-

Ms. Roberts: Who says it's not objective, Dr. Frenkel?

Dr. Frenkel: Well, it's validatable, let's put it that way. You know when you have a group of people over the course of decades, if not hundreds of years, with written precepts that are enabled - allowed to be studied and discussed.

Ms. Roberts: My observation as a public health practitioner is that there aren't very many people who have a religious objection, and I don't feel that it's a real and clear and present danger for the community to allow them to protest, even if that means their way to do it is based on a religious objection.

Dr. Frenkel: So you're kind of changing your argument. You're saying don't worry about it because they're not a lot of people that really have a religious exemption, and even if we can't tell those that really do versus those that really don't, it's not a big enough problem to worry about. Isn't that what you're saying?

Ms. Roberts: Pretty close.

Dr. Khardori: You're saying we should actually broaden the scope of this?

Ms. Roberts: Yes.

Dr. Sherin: Dr. Khardori, I want to clarify something I said earlier. I don't want to cast any aspersions on any religion, and I think I used the word, Quakers, and I probably meant the Amish, which has a history of objecting. I pulled out the wrong name.

Ms. Roberts: They confuse us all the time, Kevin.

Dr. Frenkel: And for the record, I should say that in the last couple of instances where there was a microepidemic disease in the Amish community, the Amish elders said for the good of the children, we will have the community immunized.

Ms. Roberts: You've made my point.

Dr. Frenkel: No, no, I haven't made your point.

Ms Eaton: I would dare to say, Dr. Frenkel, that you are imposing your religious world view upon those that do not agree with you, and you may not like it, but nevertheless a religious world view is totally up to American constitutional rights.
For you to inflict your religious world view based upon science - it is a religious world view, and I believe that for you to say yours is superior to anyone else's is inappropriate.
You are saying that we should not allow people to have religious world views because they may not be valid. We do not have a determining factor on what is acceptable.
I am not -- this is a wonderful discussion that's been going on since the beginning of this country, which I will fight for your right to believe what you believe, Dr. Frenkel, but don't try to inflict it on me; that is the point.

Dr. Frenkel: I think we should keep these arguments not ad hominem,. Fran I am not trying to impose anything on anybody. We are discussing an issue here.

Dr. Frenkel: …even if some people find a regulation burdensome, that doesn't make the regulation wrong, and I don't mind if we put in language to improve our regulation, but we have got to make sure that that language does what we want it to do and that is give guidance both to the people who are enforcing the regulation and to the people who object to the regulation.
I still do not see - and this is really the key point - I do not see how anybody can enforce a regulation if we have an exemption that allows for an individual religious/philosophical determination to be made that an individual wants their children exempted.
You know, if somebody shows me how he can objectively decides that that is a valid thought process, I would completely cancel my opposition.

Dr. Frenkel: Before you go on, let me ask you ask you a question. Can a person claim a religious exemption against pertussis, but no other reagents?

Mr. Galati: Yes, if they want to claim it for just one vaccine they can do that. That is allowable.

Ms. Endicott: I think it's important to know that not every school district has a school nurse making a decision at all…it's important that we know that over 50 percent do not have school nurses.

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