California enacted SB277 on 1 July 2015. This new law removed the “personal belief exemption” (PBE) to vaccines required for school entry. The law went into effect 1 July 2016. One group filed a suit against SB277 in California courts in May; I discussed that complaint in previous article. This California SB277 lawsuit analysis is about new litigation against SB277 filed in the state. (Note, there is an update to this case, “California SB277 vaccination law – litigation update 1.”)
This second lawsuit, with a different group of plaintiffs, including Ana Whitlow, was filed in a federal district court on 1 July 2016. The suit was brought by several individual plaintiffs and a number of organizational plaintiffs. It contained both state and federal claims, claims on constitutional grounds, and claims that focused on implementation of the act.
As the complaint states, California has had a personal belief exemption from its school immunization requirements since at least the 1960s. The complaint does not note that between 1996-2010, California’s exemption rate increased 380%, from 0.5-2.3%. The increase continued until at least 2014.
While the number never went over 3%, the exemption rate was not evenly distributed: some areas and some schools had much higher rates of PBEs than others, making them hot spots for outbreaks. In 2010, California experienced a dramatic outbreak of pertussis in which ten babies died. Pertussis has continued to circulate at a higher rate than in the past. While the pertussis outbreak was partly the fault of a less effective vaccine, studies repeatedly found that areas with high rates of exemptions were more vulnerable to outbreaks.
In 2014, California had the highest rate of measles since 1994, and the famous 2015 measles outbreak caused even higher numbers. This background led the California Legislature to reconsider its immunization policy – already tightened once, in 2012 – and to decide to remove the personal belief exemption.
Understandably, those influenced by anti-vaccine claims were distressed by the new legislation. These parents evidently feel trapped, caught between a reluctance to vaccinate their children and their desire for their children to access educational opportunities, now closed to them by the new law’s provisions. Hence the lawsuit.
Nevertheless, while you can never be certain how a court will decide, my best assessment is that the plaintiffs’ constitutional claims have very low chances of success. While some of the statutory issues call for interpretation, they won’t lead to the law being struck down. And several of their implementation claims suffer from serious procedural problems.
Note that the discussion here refers both to the content of the complaint itself and the content of the memorandum submitted in support of the Temporary Restraining Order – both together present the plaintiffs’ arguments.
The complaint also tries to reframe the narrative drawing on anti-vaccine factual claims that are either misleading or downright incorrect. My focus in this post is on the legal claims, but I will touch on a few of the counter-factual assertions.
California SB277 lawsuit analysis – general points
Let me start by addressing a few questions about the complaint that came up repeatedly in discussions with supporters of SB277.
- The case can be filed in federal court because the plaintiffs are making a mixture of federal and state claims.
- There is no problem in having an organization bring a claim, as long as certain conditions are fulfilled (To remind you, the Sierra Club, the ALCU, the NAACP have all brought claims in the past). The potential obstacle is standing: in our system, a plaintiff has to show they have standing to bring a claim, which usually requires showing a personal which usually requires showing a personal stake in the outcome of the case.But there is a doctrine that allows organizations to have standing. It’s called associational standing. It allows an organization to sue as long as at least one of its members has standing, the lawsuit is related to the purposes of the organization, and the claim is seeking injunctive relief, not money damages. In this case the suit is seeking to stop the law, so no money damages are requested.While of the four organizations involved, only the Alliance for Natural Health USA alleged that it has members impacted by SB277, all the organizations have relevant purposes; if pushed, they can probably find members affected by the act. It’s probably not worth fighting this issue terribly hard. Even if some of the organizations are dismissed for lack of standing, they could probably participate in the case as amici curiae or perhaps as intervenors.
Procedurally, the claim asked for a Temporary Restraining Order (TRO), which is an emergency measure to stop action, a preliminary injunction – an order stopping SB277 temporarily, until the case is decided – and a permanent injunction, an order declaring SB277 invalid.
On July 6, 2016, District Judge Dana M. Sabrow denied the request for a TRO on two grounds:
- the plaintiffs failed to make any effort to notify the defendants of the request for a TRO, and
- there is no indication in the complaint that any child of a plaintiff was actually expelled or is about to be expelled – the harm, if there will be any, will be when the 2016-2017 school year begins.
Therefore, there was no urgency requiring a TRO before there can be an actual hearing on the request for the preliminary injunction. The judge did not address this, but the plaintiffs will have a tough time showing probability of success on the merits when they seek a preliminary injunction later this summer.
How about the content of the claims?
Point 1 – Freedom of religion
While this argument, on its face, would be the most powerful, and it’s certainly best supported by the plaintiffs’ declarations, our jurisprudence makes it extremely unlikely to succeed. That is because it is flying in the face of decades of precedent in California and federal courts. In 1922 the Supreme Court upheld school immunization mandates without any non-medical exemptions. In 1944 – after the Supreme Court applied the First Amendment to the states – the Supreme Court upheld child labor laws because parental rights and religious freedom have limits, and those include protecting the child’s welfare. In a resounding statement about vaccination, the court explained that:
[infobox icon=”quote-left”][a parent] cannot claim freedom from compulsory vaccination for the child more than for himself on religious grounds. The right to practice religion freely does not include liberty to expose the community or the child to communicable disease or the latter to ill health or death.
See Prince v. Massachusetts, 321 U.S. 158, 166-69 (1944).[/infobox]
This powerful precedent was followed by every court, state or federal, that ruled on the issue, most recently in Phillips v. New York (Phillips v. City of New York, No. 14-2156, slip op. at 8–9 (2d Cir. Jan. 7, 2015) (per curiam) (pdf), cert. denied, No. 14-1445, order list at 12 (U.S. Oct. 5, 2015) (pdf).
Just as compelling, since an immunization requirement is a neutral, generally applicable law – it wasn’t created to discriminate based on religion – under the Supreme Court’s current interpretation of the First Amendment the state does not need to provide a religious exemption. The leading case on this is Employment Div., Dep’t of Human Resources of Oregon v. Smith, 494 U.S. 872 (1990).
The complaint tries to argue that the existence of an exception for students with IEPs means that there has to be a religious exemption – but the case they cite to support that, Gonzales v. O Centro Espirita Benficiente Uniao Vegetal, 546 U.S. 418 (2006), simply doesn’t help them.
In that case, the government tried to prevent a small sect from drinking sacramental tea that included an hallucinogen covered by the Controlled Substances Act. The act had an exception for Native American use of peyote. The Supreme Court ruled that the government can’t forbid the sect from drinking its tea. But that really is not relevant to SB277.
Gonazales was not a first amendment case; it was decided under the federal Religious Freedom Restoration Act, which does not apply to the state – a different framework. Furthermore, in Gonzales, it’s not that there was an unrelated exception. It’s that there was an exception for one religion but not another. Treating different religions differently raises question of preferential treatment and interference in belief system. Imposing the same requirement – here, that children be vaccinated and protected from disease before being sent to school – is a different issue.
I would add that if the complaint gets as far as fact-finding and deciding on the merits, several of the plaintiffs may run into problems similar to those facing one of the Phillips v. City of New York plaintiffs, Dina Check. Ms. Check’s claim for religious objection was denied because it was clear her initial reason to reject vaccination was (misplaced) concerns about safety, drawing on anti-vaccine arguments. In this case too, several of the plaintiffs’ declarations make it clear their initial reason for rejecting vaccines was the influence of anti-vaccine claims that caused them to reject vaccines for their children. Religious reasons were added later. and only in few of the cases are the main ones. This could undermine the claims of those plaintiffs.
Point 2 – Right to education
In a series of cases in the 1970s known as Serrano v. Priest or just Serrano, the California Supreme Court interpreted the California constitution to protect equal access of students to public school and to prohibit discrimination on the basis of wealth in the context of education. In the current litigation the plaintiffs claim that SB277 violates the right to education. Here too, however, they are going against the content and tenor of the precedent in question.
I have previously addressed this general claim. In brief, Serrano was never intended, or used, to prevent the state from imposing health or safety regulations on school attendance – and the parents’ choice not to comply with those regulations does not deny them equal access in the same way that wealth does.
There is a real difference between distinctions based on characteristics like wealth, race, or others and distinctions based on choice. If parents choose to send their children to school with a knife in violation of a no knife policy, their children can be denied access. If parents choose to send their children to school unprotected from disease and increase the risk of disease to classmates, their children can be denied access, too. It’s the parents’ choice whether it is more important to them to refuse to comply with the health and safety regulation or to send their children to school. Yes, sometimes this may force hard choices on the parents, but that hardship does not justify putting other children at risk.
The legal team, possibly aware of the weakness of the “right to education” argument, adds three additional variations of it:
- The complaint argues that some of the parents are unable to homeschool their children “because they are single working parents, or they are parents in households for which two incomes are essential and homeschooling would interfere with their employment, or they are not fluent in the English language, which is statutorily required for homeschool education, and/or lack sufficient education to homeschool their children.”The only one of these examples included in the declaration is one couple concerned that the wife will have to give up her career (apparently the possibility of the husband and wife splitting the burden was not considered). I would add that in terms of language or education, the law does allow parents to enroll children in independent study programs through the public school, which should solve that problem.But, the fact that families may find the choice hard does not lift the need to choose. Families may choose to homeschool because of bullying – and face choices just as daunting. Families may choose to homeschool because their religious convictions are not supported by the curriculum, and face the same hard choices – but we don’t expect schools to change their curriculum to match religious beliefs because of that. Expecting schools to give up a requirement that protects the school’s students from vaccine-preventable diseases is no more justified than the religious beliefs example.
- The complaint also tries to make an argument that enrolling children with hepatitis B infection, while excluding vaccine-deprived children is discrimination. But that’s not a valid comparison. Children with hepatitis B and their parents don’t have a choice in the matter any more than children from a specific race do: being infected with hepatitis B is a condition, a disability, which is why federal law protects them.Vaccine-deprived children don’t have a choice either: they cannot choose to protect themselves from disease, and depend on their parents to do so. This is why the use of a claim of bodily integrity in this case is disturbing: the children can’t choose to be immunized, it’s their parents choosing not to protect them from chicken pox, diphtheria, hepatitis B, hib, measles, mumps, pertussis, polio, rubella and tetanus — diseases that don’t respect bodily integrity.But the parents do have a choice, and the law imputes their consent in the matter to their children. When they choose not to protect their children from the risk, they impose a preventable risk not only on their children, but on others. Taking steps to reduce that risk is not invidious discrimination. It’s safety regulation.
- Finally, the complaint tries to claim denial of equal protection based on treating children with IEPs differently, treating children with IEPs differently across school district, or a hypothetical case in which a district would reject a medical exemption.Children with IEPs are meaningfully different: they have a one or more disabilities that justify differing educational services and accommodations. That’s why there are federal laws in place to protect them. As to the differences in implementation, implementation can vary across places. That’s inherent in the process, and within certain limits is not an issue. But sometimes differences in interpretation can rise to differences in treatment that are problematic. In that case, courts can determine which is the correct interpretation or order a specific school district to change its policy. But that won’t undermine the act itself. Just change the way it is implemented.
And note, again, that the complaint includes no plaintiff whose medical exemption has been denied by a school. The complaint provides nothing suggesting that any school has ever denied a student’s medical exemption, besides a general statement.
In short, in relation to the right to education too, the plaintiffs are probably facing significant hurdles, and are unlikely to get SB277 struck down on a facial challenge.
Point 3 – Parental rights and informed consent
The complaint claims that the law violates parental rights and informed consent. As Prince above demonstrates parental rights are not absolute. The state could, conceivably, directly intervene in favor of vaccination, because vaccinating is so much safer than not vaccinating that it is in the best interest of a child. It is almost certainly possible for the state to even criminalize non-vaccinating, as France does for certain vaccines, and as states do for car seats.
But SB277 doesn’t go nearly that far. It preserves the right of parents to refuse to protect their children from disease. Parents still have to consent to vaccinating, and a doctor who vaccinates against parental consent, absent a court order, is violating informed consent. Further, the consent needs to be informed. Federal law even protects the parents’ rights to information by requiring that providers give a federally-prepared Vaccine Information Statement that includes a vaccine’s benefits and risks.
There’s nothing in SB277 that violates informed consent or parental rights. Yes, it imposes consequences if a parent decides not to protect their child from disease. Such consequences existed before SB277. For example, prior law allowed the exclusion of vaccine-deprived children from school in the event of an outbreak of a vaccine-preventable disease until the outbreak is over. SB277 changes the consequences of vaccine refusal – makes them substantially more serious. But it leaves the requirement of informed consent before a child is vaccinated in place.
I have briefly touched on implementation issues, above. There are two additional implementation issues raised by the complaint. As a preliminary point, even if the complaint was completely right in relation to these, it would not invalidate the law.
As with every new law, the law will need to be interpreted, and sometimes judicial guidance or correction of that interpretation will be needed. Even if a school district or the state department of health made a blatant error in interpreting it, the law would stand. The courts would simply clarify its meaning and how to properly implement it.
Implementation point 1 – medical exemptions
SB277 did not focus on medical exemptions. Before it, medical exemptions were at the discretion of the physician, and after it, too. Prior law put medical exemptions at the discretion of the physician; SB277 did not change that. SB277 did add some language expressly allowing the physician to consider family history – but there was nothing stopping the physician to consider it before SB277 went into effect, either.
In spite of this, a large part of the complaint is dedicated to discussing medical exemptions, and several of the plaintiffs make a point of saying they were denied a medical exemption. Frankly, it seems as if the complaint argues that parents who want medical exemptions should be granted them, based only on the parents’ desires, and not any medical necessity. But California’s immunization law left that at the discretion of the licensed physician, not the layperson.
The complaint in particular attacks a project organized by the Santa Barbara County Public Health Department, the Medical Exemption Pilot Program (MEPP), which will examine each medical exemption filed in county schools. The goal of the project is to gather data on the reasons for medical exemptions, and to prevent abuses of the medical exemption provision. We know there are abuses of medical exemptions, with some doctors openly selling them online or through phone or through other means, even when there’s no justification. (Read about examples of this abuse from Motherboard, and a couple of articles from our good friend Orac, who wrote about it here and here.
So it’s natural for officials to seek to curtail this abuse. The medical exemption was never intended to be a for-sale option for people who do not have a medically sound justification not to vaccinate. The pilot project can help collect data on medical exemptions generally and on how many unjustified medical exemptions are written – and possibly, if there are specific doctors who write more than others.
Yet the complaint seems to oppose this effort using a variety of problematic tools. For example, the complaint cites the federal Family Educational Rights and Privacy Act (FERPA)– even though FERPA is enforced by the Department of Education, which is not part of this suit, and according to the Supreme Court does not create directly enforceable rights. See: Gonzaga University v. Doe, 536 U.S. 273 (2002). Similarly, the complaint referred to the California Confidentiality of Medical Information Act, which is problematic here: it addresses medical providers, not schools, and it includes a public health exception.
At any rate, this part of the complaint might already be antiquated. The Santa Barbara MEPP has modified its directive to schools, instructing them to black out the student’s name and any other identifying information before forwarding the exemption to the county.
Implementation point 2 – IEPs
The complaint also addresses the issue of Individualized Education Plans, or IEPs, complaining that some of the plaintiffs were denied access to schools in spite of having IEPs. It also claims, somewhat strangely, that allowing students with IEPs access violates equal protection.
The first part suggests a specific interpretation of the relevant section which is not necessarily correct. Section 120335 (h) of California’s Health and Safety Code, as changed by SB277, reads:
[infobox icon=”quote-left”](h) This section does not prohibit a pupil who qualifies for an individualized education program, pursuant to federal law and Section 56026 of the Education Code, from accessing any special education and related services required by his or her individualized education program.[/infobox]
This provision clearly does not allow exclusion of a child whose individualized education program (IEP) requires specific services from accessing those services because the child is not immunized. In that, it makes sure SB277 is consistent with the IDEA act. However, its interpretation is not fully clear. There are three ways to interpret the provision:
- As allowing students with IEPs full access to school services, regardless of immunization status, subject only to documentation requirements.
- As allowing students with IEPs that require access to classrooms as part of the IEP to some extent access full access to school services, regardless of immunization status, subject to only documentation requirements.
- As allowing unimmunized students with IEPs that require access to school services that occur on school grounds only access to those services and to the extent specified in the IEP.
In the absence of guidance, different counties have followed different interpretations. This is an area where guidance from a state education official or a court on the correct interpretation could be useful. If a court ends up choosing a broad interpretation, such guidance may actually lead to the plaintiffs with children with IEPs getting their exemption. But this would not overturn SB277 generally, and only provide a limited, narrow exemption that fulfills federal law for a limited number of students. At this point, it’s not clear which way the court will go on this contention. It will be interesting to see how the state defendants respond on this point.
Until guidance is forthcoming, the counties have to implement the act as best they can, and they have little choice but to choose a viable interpretation and stick with it.
As to the claim that treating children with IEP differently is discriminatory, that too holds no water. These children are, in fact, different than others – and it’s appropriate to treat them differently. Children with disabilities that require in school services are a special category. If there is no valid distinction, why are these kids getting special treatment under federal law in the first place?
The complaint also suggests that staying in compliance with federal laws is unjustified, but states are required to comply with valid federal law.
California SB277 lawsuit analysis – factual assertions
I will end by pointing out that the complaint makes a large number of inaccurate factual assertions that have been raised before – and rejected by – the health committees in the legislature. For example, the complaint downplays the measles outbreak, ignoring the fact that it’s the largest California has seen since the 1990s. It describes measles as a “mild” disease, even though in the 1989-1991 outbreak measles killed 2:1000, and before the vaccine 1:1000 suffered encephalitis – and even in the Disneyland outbreak, over 10% of the people were hospitalized (pdf). It claimed that the Disneyland outbreak was started by an adult foreign visitor – even though patient zero is unknown (the first known case was actually an unvaccinated child).
The complaint makes much of the fact that in Disneyland the majority of those ill were adults – ignoring the fact that unvaccinated children grow up to be unvaccinated adults. Indeed, among those completely unvaccinated because of personal belief, ten were adults.
It also ignores the dramatic increase in PBEs mentioned at the beginning of this post, and the existence of areas with low rates – and the lower rates in private schools.
In other words, the complaints attempts to downplay the problem to which SB277 is a response – and is wrong to do so.
There are other inaccuracies, most specifically the claims from individual plaintiffs that vaccines cause health problems such as asthma or food allergies, but this post is already too long, and the point of this post is to focus on a California SB277 lawsuit analysis.
In short, the complaint’s more drastic arguments, the ones trying to make a case for striking down SB277 entirely, are not well founded. The complaint may have hit on areas of SB277 that need interpretation or clarification, but providing such clarification is part of the messy business of implementing the law and is not a reason to strike it down. We will learn more when the state defendants weigh in.
Under our current jurisprudence and public policy – like other attacks on school immunization requirements – should be rejected.
- Feikin DR, Lezotte DC, Hamman RF, Salmon DA, Chen RT, Hoffman RE. Individual and community risks of measles and pertussis associated with personal exemptions to immunization. JAMA. 2000 Dec 27;284(24):3145-50. PubMed PMID: 11135778.
- Imdad A, Tserenpuntsag B, Blog DS, Halsey NA, Easton DE, Shaw J. Religious exemptions for immunization and risk of pertussis in New York State, 2000-2011. Pediatrics. 2013 Jul;132(1):37-43. doi: 10.1542/peds.2012-3449. Epub 2013 Jun 3. PubMed PMID: 23733795.
- Jones M, Buttenheim A. Potential effects of California’s new vaccine exemption law on the prevalence and clustering of exemptions. Am J Public Health. 2014 Sep;104(9):e3-6. doi: 10.2105/AJPH.2014.302065. Epub 2014 Jul 17. PubMed PMID: 25033149; PubMed Central PMCID: PMC4151919.
- Omer SB, Enger KS, Moulton LH, Halsey NA, Stokley S, Salmon DA. Geographic clustering of nonmedical exemptions to school immunization requirements and associations with geographic clustering of pertussis. Am J Epidemiol. 2008 Dec 15;168(12):1389-96. doi: 10.1093/aje/kwn263. Epub 2008 Oct 15. PubMed PMID: 18922998.
Editor’s note: since this case will be updated frequently, I’ve decided to publish updates separately, rather than add them here. So that this article does not become unwieldy in size. To see the first update, read “California SB277 vaccination law – litigation update 1.”–––––––––––––––––––––––––––––––––––––––
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