Vaccine exemptions and private schools – what are the facts?

vaccine exemptions

As measles outbreaks – centered on unvaccinated children – continue to pop up in areas with low vaccine rates,  one approach private schools and daycares reach to is keeping out unvaccinated children. An Ohio Jewish school announced it will not accept unvaccinated children, and I know other private facilities are considering this. So what does this all mean with respect to vaccine exemptions within private schools?

Note that this is a separate issue than the question of whether unvaccinated children can be kept home during an outbreak. All states have a provision in law to keep unvaccinated children at home during an outbreak, and some of the affected states – like New York – are doing that.  Continue reading “Vaccine exemptions and private schools – what are the facts?”

Another SB277 lawsuit rejected – anti-vaccine Voice for Choice loses

SB277 lawsuit rejected

On 20 November 2018, the California court of appeal for the third appellate district, in a strong decision, rejected a challenge by the anti-vaccine organization A Voice for Choice and three individual plaintiffs to SB277, California’s law removing the personal belief exemption to school immunization mandates. The decision included scathing criticisms of the arguments and a powerful endorsement of school vaccines mandates. This article will examine yet another SB277 lawsuit rejected by courts.

Background

The first iteration of the lawsuit in question here was first discussed in November 2016, and it was then filed with a federal district court. After the initial rejection of that lawsuit, it was refiled with a state court, and after that was rejected, the plaintiffs appealed. 

The court opened by stating that “Plaintiffs’ arguments are strong on hyperbole and scant on authority.” Its decision drew extensively on the California Court of Appeal, Second Appellate District’s decision in Brown v. Smith, and on the federal district’s court decision in Whitlow v. California (discussed here). 

The Court opened with the California Supreme Court decision in Abeel v. Clark (1890) 84 Cal. 226, in which the Court upheld a school immunization requirement, and the extensive jurisprudence, state and federal, that upheld vaccines mandates since. It reminded us that for over a century, courts upheld school mandates in the face of challenges, and cited Brown v. Smith to explain that “[t]his is another such case, with a variation on the theme but with the same result.” 

Setting the ground, it explained the act, and its purpose “to provide “[a] means for the eventual achievement of total immunization of appropriate age groups against [certain] diseases.” (§ 120325, subd. (a).)” It explained the need for the act – the measles outbreak centered on Disneyland and the warning it provided that vaccine rates are too low, and exemption rates increasing too fast, and in some areas are dangerously high.

It set out the standard of review for a demurrer. A demurrer is a claim that the complaint does not raise a cause of legal action – in some jurisdictions, it would be titled a motion to dismiss. Because sustaining – accepting – a demurrer means a case is kicked out without going through fact-finding, without plaintiffs having their full day in court, the standard is pretty high, and appellate review is aggressive: 

We review the complaint de novo to determine whether it alleges facts sufficient to state a cause of action. For purposes of review, we accept as true all material facts alleged in the complaint, but not contentions, deductions or conclusions of fact or law. We also consider matters that may be judicially noticed.” (Brown v. Smith, supra, 24 Cal.App.5th at p. 1141.) We may affirm a trial court judgment on any basis presented by the record whether or not relied upon by the trial court. 

De novo means the appellate court is not bound by the finding and conclusions of the court below but reevaluates the claims from scratch. As the court explained, it is assuming factual claims are true, though if there’s judicial notice of well known, external facts, it can reject clearly implausible claims.

Note that a demurrer is usually sustained with a “leave to amend” because the court thinks it is possible for the plaintiff to state facts sufficient to constitute a cause of action. In this case, the demurrer was sustained without leave to amend because the court believes that the plaintiffs’ claim is so weak that no amending of the complaint will solve the fundamental problems.

SB277 lawsuit rejected – substantive due process

A substantive due process claim argues that the government overstepped in interfering with individual rights, beyond a legal standard. 

Here, there are three parts to this argument, as addressed by the Court – plaintiffs claim that SB277 violates their right to bodily autonomy, conditions their right to attend school on giving up bodily autonomy, and interferes with their parental rights. The court rejected the argument both because plaintiffs did not provide any legal authority supporting it (they couldn’t – there are none) and because they did not succeed in convincing the court that the law violates either of the possible legal standards. A substantive due process claim that affects a fundamental right (like bodily autonomy) would be held to the high standard of strict scrutiny. Under it, a law is “upheld only if it is narrowly tailored to promote a compelling governmental interest.” In other claims, a much lower bar – rational-basis review – applies. The court found SB277 would meet either standard. The court said that:

“It is well established that laws mandating vaccination of school-aged children promote a compelling governmental interest of ensuring health and safety by preventing the spread of contagious diseases.”

It cited multiple cases upholding vaccine mandates and criticized the plaintiffs for not addressing them and responding to them. I’m not sure that’s completely fair – the plaintiffs did try to address at least one of the cases the court pointed to, Zucht v. King and the decision later responded to that. But the court is completely right that plaintiffs did not succeed in providing a convincing reason to reject that abundant jurisprudence. 

Addressing bodily autonomy, the court rejected plaintiffs’ effort to argue that the vaccine cases are before cases upholding bodily autonomy, and therefore invalid. The court said: “We are aware of no case holding mandatory vaccination statutes violate a person’s right to bodily autonomy.”

I agree with the court’s conclusion, but I would support it differently. First, at least one famous bodily autonomy case – Schloendorff v. Society of New York Hospital  dates to 1914, while Zucht is a 1922 case, so the timing does not fit the plaintiffs’ claim. But more importantly, while I think the bodily autonomy cases would be important if a state were to impose an adult mandate, that’s not the issue here. These are children who are required to be vaccinated – and bodily autonomy does not work quite the same way. The children are not capable of making autonomous decisions, and the issue is not their autonomous choice not to be protected from diphtheria, measles, hib, etc. – it’s their parents’ choice not to protect them.

There are other arguments against the cases, but I want to keep this short, so I will not go into detail about them. 

The more tricky prong of the strict scrutiny standard for this purpose is that a law limiting rights has to be narrowly tailored. Here, plaintiffs – as they should have – argued that there are other, less aggressive means to prevent outbreaks. And the court – correctly, in my view – rejected it, drawing on Brown v. Smith and Whitlow again. The court pointed out that the state’s objective – total immunization of the relevant age groups – is ambitious, and lesser means won’t achieve it. It then quoted language from Brown strongly endorsing mandates (pdf):

“This argument fails, of course, as compulsory immunization has long been recognized as the gold standard for preventing the spread of contagious diseases. As is noted in the legislative history, studies have found that ‘when belief exemptions to vaccination guidelines are permitted, vaccination rates decrease,’ and community immunity wanes if large numbers of children do not receive required vaccinations.”

The court gave short shrift to the plaintiffs’ claim that SB277 violates privacy, because when dealing with health matters, the review is under rational-basis review, and the desire to prevent dangerous diseases trumps it (to those interested in a longer analysis, I engaged in one here).

Probably the strongest claim plaintiffs had is the claim that SB277 violates the right to education – though even that is not particularly convincing. But the Court rejected this claim easily, too, because the two previous decisions – Brown v. Smith and Whitlow – already dealt with the issue. The court found that the precedent enshrining the right to education – Serrano – did not apply, for two reasons.

First, it was not applicable on the facts:

[quoting Brown] “Serrano struck down a public school financing scheme as violating equal protection guaranties ‘because it discriminated against a fundamental interest — education — on the basis of a suspect classification — district wealth — and could not be justified by a compelling state interest under the strict scrutiny test thus applicable.’ ” (Brown v. Smith, supra, 24 Cal.App.5th at p. 1145.) Like the plaintiffs in Brown, the plaintiffs here “cite Serrano to support their claim that Senate Bill No. 277 . . . violates their constitutional right to attend school, but fail to explain its application here. There is no ‘suspect classification’ underlying Senate Bill No. 277.”

Second, and just as important, even assuming the statute was held to strict scrutiny because education is a fundamental right, the court already explained that it can pass strict scrutiny. 

Finally, in a very short statement, the court agreed with the Brown court that SB277 did not violate religious freedom. 

In short, this decision agreed with previous jurisprudence that school mandates are constitutional and valuable.

SB277 lawsuit rejected – what next?

A Voice for Choice has two choices. It can accept the loss and go home, or it can try and appeal to the California Supreme Court. Not appealing has advantages: this is an unpublished decision, and as such, does not serve as a precedent – it cannot be cited or relied on. It is, however, binding on the parties to the case. A Supreme Court decision, if one happens, could well echo the strong endorsement of mandates, based on strong evidence that they work and an extensive jurisprudence, and would change the legal situation for the worse – it would end the issue in terms of California law (since the claims in this lawsuit are mostly state claims, the California Supreme Court is the last word on them). On the other hand, not appealing gives up a chance to change the legal situation, leaves SB277 intact, and leaves in place the other appellate court decision – Brown v. Smith – supporting it. 

If A Voice for Choice appeals, the Supreme Court will get to decide whether to take the case. The California Supreme Court takes very few civil law cases, and this one is based on extensive jurisprudence rather than breaking new ground – so there is a strong chance it will not be taken up. On the other hand, the court may want to address the question of immunization mandates in current times. 

We will see. 

8 December 2018 Update

The state requested that the court’s decision be published. On December 6, 2018, the court granted the request, giving the decision precedential force.

Getting the adult HPV vaccine – Dorit Rubinstein Reiss’ story

adult-hpv-vaccine

On 5 October 2018, the FDA expanded the licensing Gardasil 9 – currently the only HPV vaccine marketed in the United States – to men and women up to the age of 45. If up till now getting the adult HPV vaccine was not a realistic option for me, now it was. But at this point, the vaccine is not yet recommended for my age group – the Advisory Committee on Immunization Practices has not made any additional recommendations after licensing. Which raised the question: should I get it?

On one hand, I am in a committed monogamous relationship. I am a married mother of two young children, I have no plans of changing partners, and I’ve already probably been exposed to anything my husband had. I have never had an abnormal pap smear. That means that I am likely pretty low risk for getting a new HPV infection and that I have cleared any I ever had (almost all sexually active people in the United States have had HPV). If you are in a relationship, including marriage, and if you had children, you likely had sex at some point.

So the benefits of the adult HPV vaccine for me are low – but not non-existent. You never know what will happen, and while I hope to stay with my partner forever, bad things can happen – like death or sexual assault. One hopes for the best, but it’s reasonable to also plan for the worst (for example, while we do not plan to die, we have a will written out with provisions for caring for our kids if we do) – and the vaccine is age-limited. There are nine cancer-causing HPV strains in the vaccine, and I am fairly certain that I have not been exposed to all of them. 

The risks of the adult HPV vaccine are extremely minor. I’m likely to get a sore arm, may get other mild reaction like fever, and have a theoretical reaction of an allergic reaction (or fainting, though not being a teen, I think that’s unlikely). Studies pretty much rule out other risks.

In spite of anti-vaccine claims, getting the vaccine after being exposed to HPV does not increase your risk of cancer (but the vaccine won’t protect you against strains you were already exposed to).

So the adult HPV vaccine has low benefits but minuscule risks, at least for me. Still, it seemed to me to make sense to go for it, if possible. Especially because I speak up about HPV vaccines and encourage others to go for them, I thought it’s fair to get them myself, too. Show I mean it when I say that they are safe. 

To be sure, I emailed Dr. Paul Offit, who I trust completely on vaccines. He recommended going for it. 

I did not know, however, if my provider will give me the vaccine or if my healthcare insurance will cover it at my age (most health insurance in the USA does cover all vaccines, including the HPV vaccine, for children). In spite of what anti-vaccine people believe, I do not have secret ties to pharma or special access to vaccines. 

So I emailed my doctor:

Dear Dr. X,

Since the FDA approved HPV vaccines for people up to 45, I would like to get the vaccine, if possible.

I emailed Dr. Paul Offit, a vaccine expert,  for his opinion, and he recommended getting it.

Can you help me do that?

Best,
Dorit.

My doctor said: “Sure, let me see what our protocol is here and get back to you.”

After I did not hear back for over a week, I emailed again. My doctor answered:

Sorry that I could not repond in a timely manner.
I had forwarded your request to Dr. Y [details omitted to preserve my providers’ – and my own – privacy] but did not hear from them. I have ordered the shots. You can call your … health plan to see if it will be covered just to be sure.

You can go to ### injection clinic Mon-Fri 9am-12pm, 1:30-4:30 pm for the shot (ordered already).

Okay. All that was left was to actually get the vaccine. I wanted a picture – so I asked my eight-year-old son if he will act as photographer and come with me. He agreed. We went together, waited, and went in. I told him to take a lot of pictures all through, and he did. 

Dorit adult HPV vaccine

The nurse asked if I was feeling okay, if I ever had a reaction to a vaccine, if I was allergic to latex or anything else I knew of (yes, no, no). She explained what the shot was, and gave me the Vaccine Information Statement. We also wrote out the schedule for the next two doses. Then she cleaned the area, told me to take a deep breath and let it out, and done. I barely felt the needle. 

She told me my arm will hurt for a day or two. It didn’t, actually. Not complaining. I’m okay with less pain. But I would have been okay (not happy, but okay) with a sore arm for a few days, too. 

My son did a great job taking a lot of pictures. I posted several of those pictures on Facebook and Twitter, because, again, I think it’s important to make it clear I stand behind what I say on HPV vaccines specifically, and vaccines generally. 

So that’s my adult HPV vaccine story. One dose down, two to go. Maybe my arm will hurt next time. 

Constitutionality of mandatory vaccinations – Robert F Kennedy Jr. is wrong

If you’re a regular reader of this blog or are just generally aware of current issues regarding vaccinations, you know that Governor Jerry Brown of California signed SB 277 into law. The law removes so-called “personal belief exemptions” for vaccinating children before they enter schools.

Personal belief exemptions were used (and frequently abused) by parents in California to exempt their children from vaccinations using religious beliefs (hardly any mainstream religion is opposed to vaccinations) or the “I don’t like vaccines” belief statement. So many California children were not fully vaccinated, especially when they were clustered in certain areas of the state, lead to several outbreaks of measles, whooping cough, and other infectious diseases.

Thus, the California Senate, led by Senator and Dr. Richard Pan, voted for SB 277, which sailed through the California Senate and Assembly, subsequently becoming law. Its sole purpose was to protect the children of California, the country’s most populous and wealthiest state, from ravages of diseases that were once on the verge of extinction.

Despite the overwhelming support from the legislature and citizens of the state, some groups remain steadfastly opposed. One trope being pushed is doubts about the constitutionality of mandatory vaccinations for children.

Even a group of lawyers wrote a letter to the California legislature, “Statement of Lawyers Opposed to California SB 277,” that tries to deny the constitutionality of mandatory vaccinations for children. The letter concludes:

…we strongly urge you to decline the temptation to tamper with California’s legislative scheme that works to achieve public health objectives while protecting the rights of individuals to make conscientious medical decisions regarding their own health.

Please take the responsible course by rejecting SB 277 and avoiding the legal, educational, and health decision-making chaos that would follow from enactment of this legislation.

The letter is signed by over 150 attorneys but appeared to be written by one Robert F. Kennedy, Jr, a famous attorney with a long history of playing “fast and loose” with the science regarding vaccines. Last month, this blog’s good friend, Dorit Rubinstein Reiss, who spends most of her time (as far as I can tell) writing about legal issues with vaccines, replied to Kennedy’s letter with real science, real constitutional law, and real facts.

Continue reading “Constitutionality of mandatory vaccinations – Robert F Kennedy Jr. is wrong”

Medical exemptions for vaccines after California SB277 – article review

medical exemptions

In 2015, California Governor Jerry Brown signed SB277 into law, which eliminated all personal belief exemptions, but still allowed valid medical exemptions, for vaccinations before children enter school. It was considered a public health triumph. Despite a multitude of lawsuits, the law has stood, while impressively increasing the vaccination rate in the state.

California state Sen. Richard J. Pan, M.D., M.P.H., FAAP, led a hard-fought legislative battle against vaccine opponents to pass the law. He had to put up with racist attacks and public confrontations during and after the battle to pass SB277.

Despite the public health importance of mandatory vaccines for children entering school, some California families are utilizing false or questionable medical claims to jump through loopholes to not vaccinate their children. I have been advocating, along with many others, that California needs to close these loopholes, possibly by having public health experts review all medical exemptions before school children are allowed to enter school. This isn’t to force vaccinations on children, but to protect all children from dangerous, sometimes deadly, vaccine-preventable diseases.

In a new study by Salini Mohanty et al., published in Pediatrics, the authors examined the experiences of public health officials and immunization staffs that addressed requests for medical exemptions under SB277. Continue reading “Medical exemptions for vaccines after California SB277 – article review”

Dorit Rubinstein Reiss – an index of her vaccine articles on this website

Dorit Rubinstein Reiss

Dorit Rubinstein Reiss – Professor of Law at the University of California Hastings College of the Law (San Francisco, CA) – is a frequent contributor to this and many other blogs, providing in-depth, and intellectually stimulating, articles about vaccines (generally, but sometimes moving to other areas of medicine), social policy and the law. Her articles usually unwind the complexities of legal issues with vaccinations and legal policies, such as mandatory vaccination and exemptions, with facts and citations.

Professor Reiss writes extensively in law journals about the social and legal policies of vaccination–she really is a well-published expert in this area of vaccine policy, and doesn’t stand on the pulpit with a veneer of Argument from Authority, but is actually an authority. Additionally, Reiss is also a member of the Parent Advisory Board of Voices for Vaccines, a parent-led organization that supports and advocates for on-time vaccination and the reduction of vaccine-preventable disease.

She was also one of the many contributors to the book, “Pseudoscience – The Conspiracy Against Science.”

Many bloggers and commenters on vaccine issues will link to one or more of her articles here as a primary source to counter an anti-vaccine claim. The purpose of this post is to give you a quick reference to find the right article to answer a question you might have.

Below is a list of articles that Dorit Rubinstein Reiss has written for this blog, organized into some arbitrary and somewhat broad categories for easy reference. This article will be updated as new articles from Professor Reiss are published here. We also may update and add categories as necessary.


Continue reading “Dorit Rubinstein Reiss – an index of her vaccine articles on this website”

Samoan vaccine tragedy – investigation update – nurse charged

samoan vaccine update

Recently, Dorit Rubinstein Reiss wrote an in-depth article here discussing the Samoan vaccine tragedy – two children died within minutes after receiving the routine MMR vaccine. The government reacted to the Samoan vaccine issue almost immediately, and they opened an inquest into what may have killed the two children.

At the time, the story was picked up by the anti-vaccine religion as evidence that the MMR vaccine kills children while claiming that nefarious forces are conspiring to hide the truth about the vaccine. Except that is the farthest thing from the truth. Continue reading “Samoan vaccine tragedy – investigation update – nurse charged”

Testing vaccines – another anti-vaccine myth requiring debunking

testing vaccines

There are so many myths, tropes, and memes pushed by the anti-vaccine religion that it’s almost a full-time job to keep up with it all. One of the most ridiculous is that vaccines aren’t tested, especially in clinical trials. This is ridiculous on so many levels, the most important of which is that testing vaccines are critical to receiving regulatory approval across the world.

The anti-vaccine religion believes that vaccines aren’t tested thoroughly before being used on unsuspecting infants. I do not know where this started, or why it started, but like much in the anti-vaccination world, it really doesn’t matter. It just passes from one person to another across social media, and individuals with no research background hold this particular belief as if it were the Truth™.

On the contrary, testing vaccines is a thorough process – each vaccine is tested for safety and effectiveness before being marketed. Not only are vaccines thoroughly tested for safety and efficacy before being marketed, they also are rigorously tested in various combinations with other vaccines. And I’m not cherry picking a few articles to support my point of view, unless by cherry picking you mean I’m picking the best articles from the highest quality journals in medicine.
Continue reading “Testing vaccines – another anti-vaccine myth requiring debunking”

Samoa vaccine story – tragedy abused by anti-vaccine websites

Samoa vaccine story

On Friday, July 6, a tragedy occurred in Samoa, a small country located in the Pacific Islands. Two children brought in for routine MMR vaccination died within minutes of receiving the vaccine (one report said hours and the first expert quoted below was responding to that, but the rest consistently said minutes – another question for investigation). The government reacted to the Samoa vaccine story immediately, opening an inquest into what may have killed the children. 

These are the known facts about the Samoa vaccine story. First, my deepest condolences to the families – it is beyond tragic. This tragedy should be investigated, and when the facts are known, they should be shared, steps should be taken to prevent recurrence, and consequences imposed where appropriate (the fact that a second vaccine was administered after the first death is especially troubling).

Unsurprisingly, this has been picked up by anti-vaccine pages and activists as evidence that vaccines kill and that there is a conspiracy of silence to hide that. Both of those storylines are wrong. I want to take a look the facts behind this Samoa vaccine story. Continue reading “Samoa vaccine story – tragedy abused by anti-vaccine websites”