More -- On That "Secret" HPV Vaccination Proposal in New York

See this post, and the updates thereto, for the background, here.

Salmon -- as ever -- asks a very sensible question:

. . . .I would think that 2.(A) and 2.(B) are separate and that vaccination would not be dependent on being exposed to an STD.

Salmon

February 9, 2010 8:43 AM. . . .

My response:

Condor said. . . .

Hey Salmon -- you make a fair point.

I haven't tracked down the legislative history, but I think the changes proposed via sub-sections (A), (B) and (C) are intended to work harmoniously -- however, as I've pointed out already, the drafting leaves much to be desired.

I think that -- above all else -- is the core problem with the bill.

There are essentially no defined terms, so any of the phrases could mean an almost unlimited number of things, to different practicioners.

Now, normally, the bill's authors would specifically make the section (B) authority dependent upon an "exigency" event occuring under section (A), and do so explicitly.

That they did not do.

However, I think most courts, and therefore most legislators (whose job it is to write laws) would know that a pre-emptive foreclosing of a parent's fundamental privacy and liberty right -- that of deciding whether to give an entirely elective vaccine -- a vaccine that is meaningless to virgins and abstinent teens -- and a vaccine with some real measurable (even if small) risks, to a minor child -- would be unconstitutional, without some specific showing of a serious, imminent threat to the child's safety -- and perhaps, a showing that the parents were at least indifferent to it. These vaccination-decision risks are ones a 15 year old is likely to be very poorly-equipped to assess, alone, and in secret -- without trusted adult guidance, by the way. In this regard, the bias of most health care practicioners might well be to vaccinate, feeling that it was the more proactive approach. Parents might have a differing view -- in fact, many do.

So, I think (though the matter is far from clear, here -- and calls are thus still urgently needed, in New York) the only possible way to read the proposed changes as constitutional -- is to presume that the legislature intends the HPV vaccination-without-parental consent may only be administered after some showing that the child has been "exposed".

The devil of it all -- of course -- is that some practicioners may declare that any sexually active teenager is presently "exposed"; or even that any teenager who admits to kissing(!), with a boy- or girl-friend, is "exposed". And that would encompass perhaps 70 percent of all public high schoolers in New York.

Or even that any non-virgin is "exposed" -- regardless of whether the child is abstinent, at present, or has been for years. I could go on and on, but I know you all catch the drift of this.

This is a terrible piece of legislation -- and should be spiked. Even if the intentions are noble ("protecting kids, from one another"), it is an exemplar of the adage "the road to hell is thus paved. . . ."

Again, Salmon, thanks for the great alert!. . .

Maybe the legislators will be unable to travel upstate for the opening session today, due to "Snow-A-pocalypse, Now". We shall see.