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Wednesday, August 12, 2015

Vaccines, Maine court rules in support of immunization

Maine's legislature was unable to override a gubernatorial veto of an upgraded state vaccine law. Nevertheless, the state's supreme court subsequebntly provided guidance about the urgency of preventing vaccine preventale diseases.

A measles vaccine is seen at Venice Family Clinic in Los Angeles, California, in this February 2015 file photo.

Maine court rules state could order child’s vaccination against mother’s wishes By Jackie Farwell, Bangor Daily News Staff

PORTLAND, Maine — The state acted legally when it ordered immunizations for a child in its custody against the mother’s wishes, Maine’s highest court ruled Tuesday.

The Maine Department of Health and Human Services took temporary custody of the 1-year-old after learning that the father was abusive to the boy’s mother, according to court documents, which kept the family members’ names confidential.

The Maine Supreme Judicial Court, which first heard the case in May, supported a district court ruling that DHHS was justified in taking custody of the boy. The mother failed to recognize that the father posed a potential threat and remained in a relationship with him, while also declining needed medical care for the child, according to the ruling.

The mother refused to vaccinate the child, saying “I do not believe in viruses,” and denied him antibiotics because she believes “the mind can cure all,” court documents state. She also sought no medical treatment for the child’s hernia, reporting that “when it bulges, she simply pushes it back,” according to the documents.

The mother’s Lewiston attorney, Erika Bristol, said in May that the woman’s choice to decline treatment resulted in no harm to the child, who was healthy when DHHS took custody. 

To get the child back, the mother must agree to the immunizations, she said at the time.

All but one of the justices also supported the lower court’s finding that DHHS was within its legal rights to order immunizations for the child.

In granting DHHS custody, the lower court specifically required the department to “make arrangements for the child to have a full medical evaluation, including an evaluation of his hearing and hernia, and approve such vaccinations as are deemed essential by the pediatrician,” the ruling states. The custodian of a child has the right to make medical decisions, including vaccination, the justices ruled.

Maine Supreme Judicial Court Justice Joseph Jabar concurred that the child was in jeopardy but disagreed with the other justices that the district court could order DHHS to vaccinate the boy. While the law allows legal custodians to make decisions about ordinary medical care and emergency treatment, vaccination meets neither of those standards, he wrote.

Under Maine law, parents may opt out of vaccinating their children for medical, religious or philosophical reasons, Jabar noted. (This law was upgraded in LD 471, in the Maine 127th, but Governor LePage vetoed the vote of the legislature and there weren't
 enough votes for a 2/3 override.)

Most Maine parents vaccinate their children, but federal data show the percentage declining vaccines is on the rise. More than 750 kindergartners started public school in 2013 without receiving all of the required immunizations because their parents opted out, according to the U.S. Centers for Disease Control and Prevention.

Maine’s opt-out rate was the fourth-highest in the nation during the 2013-14 school year.

“Because Maine parents have an express statutory right to opt out of vaccinating their children, preventative vaccinations are not the type of ordinary medical procedures that the state may unilaterally authorize, at least so long as the objecting parent or custodian retains that statutory parental right,” he wrote.

The department’s decision to order that the child be vaccinated also forever prevents the mother from exercising her right to skip those immunizations, even though the jeopardy order is temporary and she may one day regain full custody, Jabar wrote.

“It is not up to us to determine whether the law giving the parents the right to opt out of vaccinations is wise or medically sound — the Legislature has given parents this right,” he wrote.

Perhaps Maine's coalition to improve immunization rates among children will attempt to reintroduce another bill, similar to LD 471, and it will succeed in the 128th legislature.

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