"If You Like Your Doctor's Advice, You Can Keep Your Doctor's Advice": A New State Challenge to "Medical Judgment"

California enacted a controversial law last year, known as SB277, that abolished the religious and personal-belief exemptions to state-mandated child vaccinations. One remaining exemption, however, is at the heart of the law: the physician exemption. Under that exemption, if your child is contraindicated (that is, medical circumstances suggest your child is more likely to suffer adverse reactions), then your physician still may exempt the child from certain vaccines.

In 2014, Dr. Bob Sears wrote an exemption for a two-year-old who suffered adverse reactions to prior immunizations. Sears is an outspoken supporter of both vaccines and vaccine choice. He is respected by opponents of SB277 for his even-handedness on the fraught subject. The California Medical Board is now accusing Sears of "gross negligence" related to the 2014 exemption. The Board alleges Sears failed to get written medical history concerning the child's prior adverse reactions.* "If the board finds Sears negligent," the Orange County Register reports, "he could face discipline ranging from a public reprimand to revocation of his medical license."

This is unusual to the point of unique. From a legal perspective, that is. From a policy perspective, the chill down the spine should feel familiar; more anon. But the law to date has steered well clear of the physician's prerogative to advise his patient. For example, in Doe v. Bolton, the 1973 companion case to Roe v. Wade, the Supreme Court described a physician's "medical judgment" as follows: 

"medical judgment may be exercised in the light of all factors – physical, emotional, psychological, familial, and the woman’s age – relevant to the wellbeing of the patient." 

Over three decades later in 2005, the LA Times remarked that this broad standard meant that, in effect, "any abortion could be justified.”

And so it went. In fact, only in the cases of serial killers has the law found the physician's time-honored discretion to have been exceeded. Ramesh Ponnuru:

How would a prosecutor be able to overcome a defense rooted in the abortionist’s claim that a late-term abortion was needed to protect the mother’s emotional health? Is there any evidence that abortionists have been prosecuted or lost their medical licenses in this way? (I have read of only two successful prosecutions for illegal late-term abortions since Roe: those of the “Butcher of Avenue A” in New York in the early 1990s and of Kermit Gosnell in 2013, both of whom were also convicted of many other counts.)

Nothing on the face of California's SB277 suggests it means to cabin physicians' advice concerning your children or immunizations. Where the law is codified in the Health and Safety Code (at section 120370), it contemplates physicians will consider all "medical circumstances," echoing the practically limitless "medical judgment" language of Doe v. Bolton. More than 40 years after Doe, in other words, scrutinizing physicians' judgments advising abortion is simply unheard of. And yet less than a year after SB277, California is targeting a well-known physician for offering a patient his medical judgment.

As mentioned above, the attentive will find this familiar. The state's intimidation strategy is taken from the same page as the EPA -- that is, "how the Romans used to...find the first five guys they saw and they'd crucify them," as described in a 2010 presentation of one of its officials, Al Armendariz:

“I was in a meeting once and I gave an analogy to my staff about my philosophy of enforcement, and I think it was probably a little crude and maybe not appropriate for the meeting, but I’ll go ahead and tell you what I said:

“It was kind of like how the Romans used to, you know, conquer villages in the Mediterranean.  They’d go in to a little Turkish town somewhere, they’d find the first five guys they saw and they’d crucify them.

“Then, you know, that town was really easy to manage for the next few years.”

So even if Sears survives, it would be cold comfort to say "the system worked." By design, the process is the punishment: downstream pediatricians less prepared than Sears for litigation and negative publicity will have to strongly consider preemptively changing their medical counsel.

The state sees vaccines as a generally-applicable policy for the entire public. But until now, a conscientious, patient-centered physician would treat vaccines just like anything else: an independently-considered choice for each individual patient. To learn if this holds much longer, watch this space. 

So if you like your doctor's advice, you can keep your doctor's advice -- until, that is, the state threatens your doctor's medical license, in the service of a policy objective. In that case, it's more likely either your doctor will change his advice, or he'll stop being your doctor. Or anybody else's.

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*From personal experience and research, I can relate that many pediatricians are loathe to entertain the possibility that any symptoms are caused by vaccines -- even symptoms explicitly stated on the label -- and thus are unlikely to document them as anything but routine ailments.