California SB277 lawsuit update – judge rejected Torrey-Love

California SB277 lawsuit

On August 15, 2017 Judge Charles D. Wachob from the Placer County Superior court granted the state’s demurrer to the California SB277 lawsuit (known as Torrey-Love).  In lay terms, dismissed the suit without leave to amend. Demurrer is generally granted when, assuming all the facts plaintiffs claimed are true, the court sees no legal basis for the suit, in technical terms, no cause of action.

The California SB277 Lawsuit

As I discussed previously, the lawsuit in Torrey-Love was professionally, competently written. The lawyers worked hard to craft creative arguments against existing precedent. Their problem, however, is that they are making an argument against extensive jurisprudence going back over a hundred years, based on the strong public policy rationales of protecting both children and community. They did their best, but the arguments were, correctly, rejected by the court.

In essence, the argument in the lawsuit – only slightly different was that SB277 sets an unconstitutional condition by forcing plaintiffs – which included both parents of unvaccinated children and the children themselves (aged 5-11) – to choose between the children’s constitutional right to education and four other rights: the children’s right to privacy, which will be violated if they have to disclose getting a medical exemption to the school, the children’s right to bodily autonomy, the parents’ rights to make medical decisions for their children and everybody’s right to substantive due process.

I pointed out in my previous post that the unconstitutional conditions doctrine is nowhere as clear as plaintiffs tried to make it, and not a great tool. But the court took a different approach (one I also covered in that post).

The Decision

The court’s decision, in a nutshell, is that since none of the rights in question is absolute, and since school immunization requirements have been upheld by courts even when clashing with these rights, the unconstitutional conditions doctrine does not apply because plaintiffs are not asked to waive any right they actually have: our jurisprudence has already limited these rights in the context. It’s a powerful argument.

The court opens by reminding us of the jurisprudence going back to Jacobson v. Commonwealth of Massachusetts (1905) 197 U.S. 11, 27 and Zucht v. King (1922) 260 U.S. 174 that upheld a state’s power to require vaccinating (Zucht did so in the context of a school immunization requirement).

Plaintiffs claim SB277 infringes their right to privacy by requiring a child to provide medical information to attend school. Before I address the court’s decision, I want to remind people the implication of this decision. Children are not required to make their immunization status known: just to let the school know. Under plaintiffs’ claims, parents would not have to give the school – where the child spends much of her day, and where teachers are responsible for the child’s welfare – medical information.

Taken to extreme, this could mean teachers may not be told of a child’s allergies, or of other medical problems, potentially putting child or others at risk. This also goes against an immunization mandates with easy to get exemptions, because at the least, the school would know the child is unimmunized. It’s a very far-reaching claim.

In this case, the court reminds us that the right to privacy is not absolute. To show it, a plaintiffs need to show: “(1) a legally protected privacy interest; (2) a reasonable expectation of privacy in the circumstances; and (3) conduct by defendant constituting a serious invasion of privacy.”

Here, condition one is fulfilled because the right to privacy covers medical history. But it is doubtful there is a reasonable expectation of privacy when it’s a question of giving a school medical information about a child they are entrusted with. More important, the third condition depends on balancing the interests in questions – and health is a very important issue.  The “legitimate and compelling” interest of protecting public health and safety justifies mandating immunization – and as a corollary, requiring the information necessary for the mandate, and the requirement is not a forbidden violation of the constitutional right to privacy. The Court said:

…requiring vaccinations as a condition to attending school, and requiring the disclosure of information regarding whether vaccinations have been obtained, or whether the child is medically exempt pursuant to Health and Safety Code section 120370(a), clearly further the legitimate and important interest of the state in safeguarding health and safety, an interest that has been repeatedly recognized by the United States Supreme Court, the California Supreme Court, and numerous other jurisdictions. Thus plaintiffs’ state privacy claims fail as a matter of law because the invasions of privacy are justified by SB 277, which “substantially furthers” the “legitimate and important competing interests” of the State.” (citation omitted).

I would add that a recent decisions of the California Supreme Court – Lewis v. Superior Court (Medical Board of California), 17 C.D.O.S 6924 – reaffirms that, emphasizing that the right to privacy must be balanced with others, and is not absolute.

The right to education also fails. While it’s a real right, it’s not absolute, and here, it loses to other interests. First, if the standard applied is rational basis – does the state have a legitimate interest in the policy – “requiring immunization as a precondition to attending school serves a legitimate state interest in protecting public health and safety.” And normally, in relation to health and safety, that’s the standard. But even if the much more demanding strict scrutiny standard is applied, under which defendants must show “a compelling state interest, and that the law is necessary or narrowly tailored to meet that interest,” plaintiffs’ claims fail. Courts repeatedly upheld immunizations as protecting a compelling interest (the interest of preventing diseases that harm or kill). And the exceptions from the law – those for children with medical conditions, those who are homeschooled or do independent study – make SB277 narrowly tailored to meet the interest.

As to parents’ rights to make medical decisions for their children, that right is not absolute:

Courts have found that a wide variety of state actions may be permitted to intrude upon the interests of parents in controlling the upbringing of their children, including state requirements for compulsory vaccination of children. (Id., citing Prince v. Massachusetts (1944) 321 U.S. 158.)

This right, too, therefore, does not prevent enacting SB277.

As to children’s right to bodily autonomy, (an argument that as I said before is misapplied here, since it’s not the children deciding whether or not to vaccinate, it’s the parents), the court said:

the right articulated by plaintiffs is the right to refuse immunization before attending public or private school in this state. The fact that such a right does not exist as a fundamental constitutional right has been stated repeatedly by courts in every jurisdiction.

In short, since plaintiffs have not shown SB277 violates constitutionally protected rights, under our jurisprudence, they failed to state a valid legal claim. The court concluded:

Although plaintiffs request leave to amend, they have articulated no basis on which the claims could be amended to change their legal effect. For this reason, defendants’ demurrer to the complaint is sustained without leave to amend.

Next Steps

If the court refuses leave to amend, the plaintiffs’ only choice is to appeal the decision on their California SB277 lawsuit. That would go first to the  3rd District of Appeals, and if that is appealed, they may appeal to the California Supreme Court.

Note that the California Supreme Court would have to choose to review any resulting decision. Any review of the intermediate court to the State Supreme Court is not automatic. If the plaintiffs lose on their appeal, it is extremely unlikely that the Supreme Court would intervene, given how clear the decisional law  is in this area.

I do not know whether plaintiffs would choose to appeal. On one hand, it’s their only viable route to overturn SB277 through the court. On the other, the trial court decision would not set a precedent, though it can be persuasive, but a higher court decision’s might, and this is a well-reasoned decision that will be hard to overturn.

Religious exemption to vaccines – Indiana court rules against mother

On July 26, 2017 a Court of Appeals in Indiana interpreted a custody decree to require an unvaccinated child to be vaccinated. In doing so, it overturned an earlier, problematic ruling by a trial court. This case has important lessons for families in this situation, including the importance of the content of custody decrees, and – although it’s not clear from the decision – the importance of countering anti-vaccine, unreliable experts.  It also rejected the use of a religious exemption to vaccines to prevent the child from being vaccinated. Continue reading “Religious exemption to vaccines – Indiana court rules against mother”

Bob Sears’ personal attacks on Paul Offit – anti-vaccine evidence

bob sears

On March 13, 2015 Dr. Bob Sears, a California antivaccine physician, wrote a post on Facebook attacking Dr. Paul Offit, pediatrician, vaccine inventor, scientist, vaccine advocate and educator.

Dr. Sears wrote:

A FAILED ATTEMPT TO CHANGE HIS NAME FROM DR. PROFIT TO DR. PROPHET

Everyone’s favorite infectious disease doctor tried to write a compelling argument as to why parents should not have religious freedom to decline vaccines, and the New York Times shot it down. Here’s a link to the Time’s review. So, sorry to help publicize this waste of trees, but the more people who know that this vaccine advocate doesn’t care about religious freedom in the United States the better. Enjoy!
Dr. Bob.

sears-facebook-1 Continue reading “Bob Sears’ personal attacks on Paul Offit – anti-vaccine evidence”

SB277 RICO lawsuit – Bad arguments and conspiracy theories updated

SB277 RICO lawsuit

In previous posts I addressed three of the lawsuits filed against SB277, all of which suffered defeats, at least for the moment: WhitlowBuck, and Torrey-Love. There was a fourth lawsuit, however, filed in July 2016 that I did not address until now – the SB277 RICO lawsuit from Travis Middleton.

This lawsuit had, in my view, the lowest chances from the start, and I was not sure how to cover it in the best manner, given its writing. But I think it’s time, since although a formal decision has not come down, a recommendation to dismiss the SB277 RICO lawsuit was filed.  Continue reading “SB277 RICO lawsuit – Bad arguments and conspiracy theories updated”

Immunization mandates case law – UC Hastings project

Immunization mandates case law

In the past year, I offered a course in University of California, Hastings College of Law allowing students to work on immunization-related legal research projects that can help members of the immunization community understand legal issues. I am now ready to present our first publicly available project, for anyone’s use, on immunization mandates case law.

This project, done by two UC Hastings’ students under my guidance, is a summary and overview of litigation on vaccine mandates – school mandates and influenza workplace mandates.

It includes a short memo summarizing the jurisprudence on these topics and a list of cases, federal and state (and if you come across any cases we have missed, please let me know and we will add them).

The memo can be found here. The cases are directly here (by category).

Florida vaccine laws – court says church school can ban unvaccinated kids

On 27 June 2017, in a Florida vaccine laws case, a Florida Court of Appeals – The District Court of Appeal of the First District – rejected Patrick Flynn’s appeal against a lower court decision that found that a Catholic diocese had a constitutional right to exclude unvaccinated children if its interpretation of religious law supports doing so. The Court affirmed that the church autonomy doctrine, under which the state will not interfere in a church’s interpretation of religious law, prevents application of state vaccination law to this case.

From a public health perspective, this is a good news/bad news case. On one hand, the case made it clear there is no constitutional right to a religious exemption, and allowed religious private schools to reject non-vaccinated students when that rejection is religiously motivated. On the other hand, it also made it clear that other private schools cannot, under Florida law, reject unvaccinated students if their parents file a religious exemption, and neither can religious schools when their policy is based on secular reasons.

Florida vaccine laws – the case

Patrick Flynn is a Catholic father of eight. All his children were educated in Catholic schools in the Catholic Diocese of St. Augustine, Florida (“The Diocese”). At some point of his life he decided that vaccinating was against his religious beliefs, and began providing a letter expressing his religious objection to vaccine, to fulfill the requirements of Florida’s religious exemption.

After accepting religious exemptions for years, the Diocese, through its leader, Bishop Felipe de Jesús Estévez, decided not to accept them anymore, starting with the 2015-2016 school year. The court decision (pdf) explained that

Bishop Estevez’s legal position as Bishop is that immunizations of children attending Catholic schools is an issue of faith, discipline, and Catholicism which can only properly be determined by the church and not by the civil courts.

The Diocese did not point to any specific tenet that supported its position on immunization – in fact, it did not provide any materials that explained its previous position that allowed exempt children in or its current position that refused them. It did state the basis of its opposition was religious.

Mr. Flynn’s youngest son has just finished Kindergarten in 2015. Mr. Flynn submitted a letter of religious exemption, but under the new policy was refused admission to the school unless his parents vaccinate him.

Naturally, his family was unhappy. The father opened a GoFundMe campaign, and sued the Diocese, first in the trial court and after losing the case there, appealed.

The basis for his appeal was the claim that under Florida’s statute about religious exemptions, that says:

“that immunization requirements do not apply if “[t]he parent of the child objects in writing that the administration of immunizing agents conflicts with his or her religious tenets or practices.” § 1003.22(5), Fla. Stat.” (opinion, p. 4)

Private schools have to accept religious exemptions, and cannot reject unimmunized children exempt under them.

The Ruling

The court of appeals affirmed the trial court’s ruling, which basically held that when the church’s constitutional right conflicts with a parent’s legal right to an exemption, the constitutional right trumps. There were three slightly different decisions in the appeal court (pdf).

Judge Makar wrote the main opinion. It basically said:

  1. The church autonomy doctrine prevents civil courts from deciding matters that involve those courts in theological controversy, church discipline, ecclesiastical governance, or conformity with moral standards set by the church – on those issues, the courts will defer to the highest ecclestial authority. The doctrine is ground in Article I of the United States constitution – both the free exercise clause (it protects churches’ freedom of religion) and the establishment clause (by preventing excessive government entanglement with religion). It gives churches a constitutional right to autonomy.
  2. In Florida, it’s a jurisdictional bar. That means that when a matter that involves one of the issues above – for example, here, stepping into a theological controversy – comes before a court, a court does not have jurisdiction over the issue and may not hear it.
  3. There are limits on the application of the doctrine when it comes to clearly neutral laws that do not require deciding secular matter, but they do not apply here (said with caution by the main opinion, less carefully by the other opinions).
  4. Neutral state laws requiring immunization are constitutionally valid even without a religious exemption. This means that the right to a religious exemption here is created by statute – Mr. Flynn does not have a constitutional right to a religious exemption from the school mandate.
  5. Here, we have a religious debate on immunization. Mr. Flynn is asking the courts to prefer his religious exemption over the Diocese’s – directly to step into a religious disagreement. In the Court’s words:

    “The Diocese has a religiously-based immunization policy with which one of its members disagrees; Mr. Flynn seeks the power of the State to compel the Diocese to depart from its point-of-view and admit his non-immunized son. But doing so would further his own religious views at the expense of the Diocese’s on the topic of immunizations. We are convinced that a secular court should not be making the judgment as to which side’s religious view of immunization is to be respected.” 

  6. Immunization is a basis for religious debates as well as secular ones, which is why most jurisdictions offer a religious exemptions. So this can fairly be seen as a religious debate between the parties, and courts should not step in. That is even more clearly the case here. This is a case where the church autonomy doctrine is in full force.
  7. Mr. Flynn complains that the Diocese did not provide an explanation – but under the jurisprudence of Florida’s courts, private people do not have to explain their religious objections, just state that they have one, and it’s unfair for Mr. Flynn to demand more  from the Diocese than a private person would have to give.

    In the Court’s words:

    Courts are in no more of a position to compel the Diocese to provide a sufficient quantum of passable proof that its view of immunization is consistent with the Catholic faith than to do so as to Mr. Flynn’s personal views of Catholic doctrine on the very same subject. … Mr. Flynn points out that he has no duty to prove that his objection is religious, citing Curry, yet he insists that the Diocese must provide adequate proof that sufficiently grounds its religious viewpoint in specific church tenets. We can’t help but note the incongruity of giving primacy to a parishioner’s religious viewpoint that is contrary to that of his mother-church on the same topic; respectfully, it would be an odd role reversal—a devotee’s tail wagging the corpus of church leadership—to do so.

  8. Even more generally, “the Catholic Church’s governance of its parochial schools is inherently religious, its obvious mission being the transmission of its religious values,” so courts are careful not to interfere in such religious governance.

In short, the statutory right to send a child unvaccinated to any school the parent wants has to give way before the constitutional right of a church to autonomy.

Judge Bilbrey joined the opinion, making it the majority opinion, but added a concurrence – an opinion in agreement that makes additional point – of his own. He wanted to make it clear that the focus here isn’t that it was a dispute between a Catholic member of the Diocese and the Diocese itself. He explained:

All that is required for application of the doctrine is for a church or ecclesiastical body to take a position on religious grounds; it matters not that the opponent of the church have a religious basis in opposition. As Judge Makar observes, “the Catholic’s Church governance of its parochial schools is inherently religious, its obvious mission being the transmission of religious values. . . .” (Maj. Op. at 21). In my view, that is all that is needed in order to invoke the “church autonomy doctrine.””

Judge Kelsey agreed with the result, but offered a different reasoning. Since his reasoning is not the majority, I’ll just say shortly that he analyzed the theology and found that the church’s position was based in valid religious principles, and courts should not get caught in the religious debate between the Diocese and its believer, under the church autonomy doctrine.

Florida vaccine laws conclusion

This decision means that religious private schools in Florida that refuse to accept unimmunized children on religious grounds are constitutionally protected from having to accept religious exemptions. In that, it protects the right of these schools to require immunization (and protect their pupils – and the community – from outbreaks).

Note the limits, though. This applies only to religious schools; the court made it clear that the law requires private schools, generally, to accept religious exemptions. Private schools that are not religious cannot refuse unimmunized children if their parents file a religious exemption – and the parents don’t even have to explain their religious objections, making it very easy for parents whose opposition is not religious to use this exemption.

Religious schools, too, cannot refuse unvaccinated children unless their reasons are religious. A question arises whether that could incentivize such a school concerned about outbreaks to cloak a secular reason to refuse unvaccinated children in religious language – and whether incentivizing people and religious schools to present secular objections as religious is good public policy.

Nonetheless, upholding the fact that the constitution does not require a religious exemption from immunization requirements, and allowing Catholic schools to keep their schools safe by refusing unimmunized children, do help protect the public from disease.

European court vaccine decision – a legal analysis

European court vaccine decision

On June 21, 2017 the European Court of Justice (ECJ) decided a product liability case (N.W. et al v. Sanofi Pasteur MSD SNC, C-621/15) described by news articles as allowing plaintiffs to be compensated for alleged vaccine harms, even when there is no scientific evidence of a causal connection (in the most extreme versions, “with no proof”). This description is incorrect. More nuanced analyses were provided by Orac and Steve Novella, but I think they, too, did not exactly capture what the decision does. This post explains the European court vaccine decision.

Three take-home points are important:

  1. If there is no scientific consensus as to whether a vaccine causes a particular kind of injury, member state courts can allow plaintiffs to use circumstantial evidence to prove a vaccine injured them. Defendants, of course, can use scientific evidence to counter the plaintiff’s circumstantial evidence. This decision does not mean that science doesn’t matter in the courts or that anti vaccine activists can win even when the science is against them.
  2. Member courts cannot treat circumstantial evidence as creating a presumption of causation. The plaintiff bears the burden of proving the vaccine cause the injury, and each case must be examined on its facts.  For example, a temporal connection alone does not automatically mean there’s causation.
  3. In a referral like this, the ECJ does not reexamine the facts. It is answering the specific questions of law, and basing its decision on the description of the facts sent up from below. The ECJ was acting on a mistaken premise that the science, in this case, was unclear. That premise came from the lower courts, and the ECJ did not err in following it: it did not reexamine the facts, and did not decide the case in front of it, it only addressed a specific legal question. In the lower courts that now will be expected to rule according to the ECJ’s decision, Sanofi Pasteur – the defendant – should provide the scientific evidence, and we can hope the court, as did the Court of Appeals who ruled on the case last, will follow it. It’s unclear how the case will end.

This is a complex decision. To explain it, I will start with some background on product liability law and European Union law with respect to the European court vaccine decision. Then I will address this case, and then the ruling itself. If you are short of time you can skip the background and go directly to the case, but I think those who want to really understand this will benefit from it. Continue reading “European court vaccine decision – a legal analysis”

Vaccine informed consent – mandates and liability

vaccine informed consent

Several people have asked me whether having school mandates is in tension with the idea of vaccine informed consent . The answer is no. While school mandates have some effect on parental autonomy, the doctrine of informed consent should not be conflated with autonomy.

For a somewhat different reason, imposing sanctions on those who do not vaccinate is also not a violation of informed consent. Continue reading “Vaccine informed consent – mandates and liability”

Vaccine injury compensation and mitochondrial disorders

Vaccine injury compensation and mitochondrial disorders

This post examines the treatment by the National Vaccine Injury Compensation Program (NVICP) of the first of two claims (see second one here) heard from those claiming vaccines cause more injuries than acknowledged in recent days. This article will focus on vaccine injury compensation and mitochondrial disorders – while the second one will cover an NVICP decision with respect to a form of an autoimmune syndrome.

The Special Master’s decisions – as many decisions in NVICP are – are long, complex, and examine the evidence closely and in detail. They address factual debates, expert disagreements specific to the case and expert disagreements on the science.

This post won’t cover them – that’s not my goal. All I will address are the Special Master’s conclusion about two hypotheses raised by those who believe vaccines injured their child (and also promoted by anti-vaccine organizations).

The NVICP (commonly called the Vaccine Court) is a no-fault program created by Congress to serve two goals: to protect the vaccine supply by offering limited liability protections to vaccine manufacturers and providers and to help those injured by vaccines – or even those who may have been so injured – be compensated more easily than in the regular courts.

As I addressed in the past, NVICP provides petitioners – as claimants are called – with substantial breaks compared to the regular courts. Petitioners do not have to prove a product defect or any kind of fault; the requirements for proving causation are relaxed; evidentiary rules are relaxed, allowing the introduction of evidence and experts that would not be allowed in a regular court.

NVICP is not, however, a benefits program. Its goal is not providing any parent with a child with a problem support. The United States certainly needs to offer more support to families of children with disabilities, but NVICP’s aim is different: it focuses on compensating injuries that may, at least, have been caused by vaccines.

To be compensated by an NVICP decision a petitioner does need to meet minimal standards suggesting a possible connection between a vaccine and an injury (a settlement does not require similar proof; parties settle for all kinds of reasons, including a view that the case isn’t worth litigating). At the very least a petitioner needs to show an injury, and provide expert testimony (expert testimony is generally needed when someone claims medical causation in the courts as well – that a medical act, device, drug etc. caused harm – with very narrow exceptions).

Continue reading “Vaccine injury compensation and mitochondrial disorders”

Vaxxed misinformation – legal remedies for those harmed?

vaxxed misinformation

The documentary Vaxxed uses misrepresentation to scare people from vaccinating and protecting their kids from disease. For example, it strongly suggests that MMR causes autism, and doesn’t mention that studies from all around the world show otherwise. Scientific research solidly refutes any link between vaccines and autism. I think it is time to examine if there are any legal remedies for those harmed by Vaxxed misinformation.

The documentary claims that there is a conspiracy by the CDC to hide the link between MMR and autism, even though the documents supposed to support that conspiracy do not support such accusations. In spite of the fact that even if the CDC wanted to hide such a link, it couldn’t control studies done in other countries looking at the issue (and finding no link). It makes untrue statements about vaccine testing, like falsely claiming that vaccines are not tested in combination.

In addition, in several cities, the Vaxxed team – discredited scientist Andrew Wakefield, his collaborator Polly Tommey, and producer Del Bigtree, and occasionally others – followed certain screenings with a question and answer session. In those sessions they made false claims that could mislead parents away from protecting their children by vaccinating.

The Vaxxed team claimed that preventable diseases were not prevented by vaccines. Among other things they claimed that vaccines were both ineffective and unsafe, ignoring abundant research showing the opposite: modern vaccines are extremely safe and effective.

Del Bigtree falsely described the hepatitis B vaccine – that protects against a virus that can cause liver disease and cancer – as “injecting a sexually transmitted disease”, potentially scaring parents off protecting their children against this dangerous infection. Finally, the Vaxxed team warned listeners against seeing pediatricians, because they can’t be trusted (see here and here for more of their misrepresentations and misinformation).

If a viewer watches Vaxxed and listens to the team’s advice, decides not to vaccinate based on this misleading information, and their child gets a preventable disease and is harmed by it, can they sue for money damages in torts?

What if their unvaccinated child infected a third party who was harmed?  Continue reading “Vaxxed misinformation – legal remedies for those harmed?”