Vaxxed producer Del Bigtree – not credible on vaccines

Over the past few months, Vaxxed producer Del Bigtree, who formerly worked on the show The Doctors, has made numerous statements about vaccines and vaccine safety. His claims about fraud by the CDC have been addressed in the past, and the evidence doesn’t support his beliefs. But the claims he makes about vaccines go beyond the movie, and he makes an effort to present himself as an authority on the issue.

Mr. Bigtree’s statements are consistently inaccurate, suggesting he is not a good source of information about vaccines. It’s impossible to address every single wrong claim Mr. Bigtree has made about vaccines, of course. But these problems should demonstrate that Mr. Bigtree’s claims about vaccines cannot be relied on. Continue reading “Vaxxed producer Del Bigtree – not credible on vaccines”

Maine vaccine exemptions – non-medical exceptions eliminated for schools

After extensive efforts from public health and the immunization coalition to revise Maine vaccine exemptions, and in the face of determined opposition, on Tuesday, May 14, 2019, the Maine Senate voted for a bill removing religious and personal belief exemptions to school vaccination requirements. The bill will now go to the Governor’s office, and Governor Janet Mills – whose administration already expressed support for the bill – is expected to sign it. 

The bill, LD 798, has been in the works for a while, over strong opposition from the resident anti-vaccine groups. It simply removes the language creating the non-medical exemptions, such as for religion and personal beliefs.

maine vaccine exemptions
Bar Harbor, Maine. Now protected from vaccine-preventable diseases. Photo by Gibson Hurst™ on Unsplash

On the support side, the grassroots group Maine Families for Vaccines spoke in favor of the bill, and medical associations, including the Maine American Academy of Pediatricians, worked to explain it and support it. A previous bill, similar in language, passed through the Maine Legislature, but it was subsequently vetoed by the (then) governor

The new Maine vaccine exemptions bill went through the legislative process with some drama. After passing through the House, the Senate approved the bill, but – in an 18:17 vote – added back a religious exemption.

On returning the bill to the house, the House reaffirmed their commitment to the removal of both the personal belief and the religious exemptions – in procedural terms, it “insisted”, and sent the original bill back to the Senate to vote on it again. After negotiations, one of the Senators who supported adding the religious exemption back in reversed course, and the original bill – removing both the personal belief and the religious exemption – passed 18 to 17.

maine vaccine exemptions
Portland, Maine. Also protected by removing some of the Maine vaccine exemptions. Photo by frank mckenna on Unsplash

As mentioned above, the Governor is expected to sign it.

The price of the change appears to be somewhat weakening the controls on religious exemptions by preventing the Department of Health and Human Services from regulating them and allowing a nurse practitioner or physician assistant to grant them.

In addition, children with an individualized educational plan can continue to attend, as long as the parents – or the student, if over 18 – have consulted with a licensed physician about “the risks and benefits associated with the choice to immunize.”

Maine – whose exemption rate was high, and who has seen a large outbreak of pertussis in past years – thus joins California, West Virginia and Mississippi as states with no non-medical exemptions. It also provides the second legislative win for public health this season, after Washington passed a bill removing the personal belief exemption to the MMR vaccine.

Congratulations, Maine, and let us hope this step helps keep your children safe and serves as a model to more states.

Yes, vaccine herd immunity works – scientific evidence supports this fact

herd immunity

This piece is a summary of Herd Immunity and Immunization Policy: The Importance of Accuracy, published in v. 94 of the Oregon Law Review.

As a bit of background, in an article that was published in the Oregon Law Review in 2014, authors Mary Holland and Chase E Zachary claimed that school immunization mandates are inappropriate because they reject the concept that herd immunity works.

This article will explain why Holland and Zachary’s analysis or immunization mandates and herd effect is simply incorrect. And let’s be clear – there is a legitimate debate about whether school immunization mandates are appropriate, policy-wise, as a response to non-vaccination.

Unlike vaccine science, the appropriate policy to handle non-immunization is not agreed upon, and the data on what is the right way to get people to vaccinate is anything but clear (though some things are clear – for example, harder to get exemptions lead to higher vaccination rates). But the debate needs to be premised on accurate facts – not on misuse of legal terms and incorrect scientific data. Holland and Zachary’s article does not provide that. Continue reading “Yes, vaccine herd immunity works – scientific evidence supports this fact”

New York vaccine mandate – judge rejects anti-vaxxer challenge

On April 18, 2019, a New York Supreme Court Judge (see Note 1) rejected a challenge to the New York vaccine mandate (pdf) brought by three lawyers (attorneys Robert Krakow, Patti Finn, and Robert F. Kennedy Jr., all of which have litigated cases on vaccines issues in the past). The litigation involved New York City’s order for an MMR vaccine mandate in certain zip codes.

The decision will likely be appealed but is well-reasoned and at this point, leaves the mandate in place. This article will take a look at the case. Continue reading “New York vaccine mandate – judge rejects anti-vaxxer challenge”

Vaccination informed consent – more anti-vaccine rhetoric from ICAN

In a misleading “White Paper,” the anti-vaccine organization, Informed Consent Action Network (ICAN) argued that “eliminating vaccine exemptions and curtailing criticism is unethical and un-American” because, they argue, it invalidates vaccination informed consent. The initial statement is wrong, and the arguments brought to support it are wrong. This article corrects the record. Continue reading “Vaccination informed consent – more anti-vaccine rhetoric from ICAN”

Del Bigtree vaccine safety complaints – HHS Vaccine Program responds

Del Bigtree Andrew Wakefield

On January 18, 2018, Dr. Melinda Wharton, Acting Director of the National Vaccine Program Office in the Department of Health and Human Services, sent Mr. Del Bigtree, an anti-vaccine activist, and producer of the anti-vaccine film Vaxxed, a response to questions he raised about vaccine safety. The response is a very informative description of the substantial efforts regarding vaccine safety, and can and should reassure parents that there is abundant data – and many monitoring mechanisms in place – to examine and address vaccine safety, and that the expert consensus that vaccines are very safe is well grounded.

This post will shortly describe the background to the letter from Dr. Wharton, then provide some of the highlights. I do, however, encourage people to read the full letter, available here (pdf), for themselves, to understand many vaccine safety issues. Continue reading “Del Bigtree vaccine safety complaints – HHS Vaccine Program responds”

Vaccines and Judaism – anti-vaxxer activists misusing religion

Dear anti-vaccine activists,

Please stop misusing Judaism in your efforts to prevent authorities from fighting the measles outbreak that is putting little Jewish children in hospitals. You’re not standing up for Jews when you do that. You’re exploiting them in a fight against preventing diseases.

The vast majority of Jewish theologians support vaccines. In the specific context of this outbreak, they call on people to vaccinate.

Pork gelatin in injected vaccines does not make them non-Kosher. That has been addressed.

The reason a minority of people in the affected neighborhoods are still not vaccinating and not protecting their children in the middle of an outbreak is not religious. It’s antivaccine misinformation: they were misled into fearing vaccines more than measles.

By people making arguments, the anti-vaccine movement fed them. They’re acting out of fear, not religion.

And if you think efforts to stop the outbreak may interfere with the Passover, having your child with measles certainly does. Having your child hospitalized with measles or in ICU definitely does.

Again: you’re not standing for Jews when you are making it harder to protect little Jewish children from ending in the hospital with measles. You really don’t.

Please conduct your fight to bring back diseases without exploiting Jews.

vaccines and judaism
Photo by Blake Campbell on Unsplash

Note

This is an open letter that Professor Dorit Rubinstein Reiss posted on her Facebook page and asked that I publish here regarding vaccines and Judaism. It is an ongoing message where anti-vaccine activists are misusing symbols of the Holocaust and other parts of Jewish history to push their false narrative about vaccines. 

Vaccine medical exemptions – California legislature aims to curb abuse

On 25 March 2019, Dr. Richard Pan, a California Senator, amended a bill he previously submitted to tighten the process of granting vaccine medical exemptions in California. The bill is a response to an increase in medical exemptions due to the willingness of some physicians to sell unjustified vaccine medical exemptions to misguided anti-vaccine parents. If it passes, it can help curb abuses. Continue reading “Vaccine medical exemptions – California legislature aims to curb abuse”

Merck whistleblowers – mumps vaccine lawsuit motions and updates

merck whistleblowers

In August 2010 Stephen A. Krahling and Joan A. Wlochowski (“the relators”), former Merck virologists and often called “Merck whistleblowers,” filed suit in the name of the United States – a so-called qui tam action, where the prosecution shares any fines or penalties with the two virologists  – against Merck.

They claimed that by faking effectiveness testing, Merck misled the United States government as to the effectiveness of the mumps component of its  MMRII vaccine (a vaccine which protects individuals against mumps, measles, and rubella). In 2012  a clinic and two MDs filed a class action against Merck claiming a violation of the Sherman Act – monopolistic, anti-competitive behavior resulting from the fraud – and violation of various state laws. (U.S. v. Merck and Chatom v. Merck). The suits were handled together. Continue reading “Merck whistleblowers – mumps vaccine lawsuit motions and updates”

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.

14 March 2019 Update

The Love Plaintiff requested the Supreme Court of California to review the case. The California Supreme Court, like the majority of the highest courts in the states, generally has discretion on whether or not to hear cases. On 13 February 2019, the Supreme Court declined to review the case, making the court of appeals decision final.