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.

Christopher Bunch – another tragedy blamed on the HPV vaccine

christopher bunch

On 14 August 2018, fourteen-year-old Christopher Bunch died from acute disseminated encephalomyletis (ADEM), leaving his loving, devoted family reeling. The family blamed his death on the HPV vaccine that Christopher received, and they were quickly surrounded and courted by anti-vaccine activists.

My heart goes out to Christopher’s family. I followed the case since he was in the hospital, hoping and praying with them for a good outcome, and I feel their heartbreak. I was also deeply impressed by their initial reaction, which was to create a positive legacy for Christopher, making him visible and famous.

I would rather not write about this, which is why this post is so long after the fact. But Christopher’s death is since being used to try and scare people away from HPV vaccines or vaccines generally, putting others at risk of cancer and death. With very little basis: the timing and the epidemiological evidence do not support a link between Christopher’s death and HPV vaccines. Christopher Bunch deserves a better legacy than that. Continue reading “Christopher Bunch – another tragedy blamed on the HPV vaccine”

February 2019 ACIP Meeting – the process for vaccine recommendations

In February 2019, I attended a meeting of the Advisory Committee for Immunization Practices (ACIP) for the first time. This post describes my observations from the two-day ACIP meeting process.

Generally, the meeting taught me that the process the committee goes through is highly deliberative, data-intensive, and the committee pays close attention to safety and maximizing benefits. Though no process is perfect, the meeting increased my confidence in the decision-making process behind the vaccines recommendations that apply to my children.

Numerous anti-vaccine group attended added some excitement and some stress, but was, from a standpoint of vaccine policy-making, largely irrelevant. 

I am initially, a public administration scholar – I wrote my dissertation on agency accountability, taught the Federal Advisory Committee Act multiple times, and teach almost annually about agency decision making. This made me very interested in the committee’s process. I also knew in advance that there will be – as there has been in several previous meeting – numerous anti-vaccine activists, and was curious to see their interaction with the meeting in reality.

Initially, I thought I would describe in detail what was addressed in the meeting, but I think that would make this post too long. For those who are interested, here is the agenda for the February 2019 ACIP meeting (pdf).

Instead, I will offer my observations about the process. I will mention that the only things voted on in this meeting were related to Japanese encephalitis vaccine and anthrax vaccine. The committee voted to make some changes to the language of the recommendation of the Japanese encephalitis vaccine for travelers to clarify it, but not changes to the actual recommendation, changes to the timeline for adult priming series (the initial vaccine series) from a 28-day interval to an interval that can span 7-28 days, and expanding the age for recommending a booster for children and putting that recommendation on equal footing to the recommendation for an adult booster.

With respect to anthrax vaccines, the committee recommended giving a booster dose to high-risk people (like first responders) who are not currently exposed but may be at risk of exposure, if they want it.

Everything else discussed was informational – some of it as part of the process of preparing for future votes (Like whether to extend the recommendation for HPV vaccines to include those 26-45), some of it as part of ongoing monitoring (like the examination of flu vaccines’ data). Continue reading “February 2019 ACIP Meeting – the process for vaccine recommendations”

Flu vaccine lawsuit – a non-win, non-revelation regarding pregnant women

On 11 February 2019, Health Impact published an article about a flu vaccine lawsuit which an anti-vaccine group called the “Children’s Health Fund” described as a legal win and revelation. The claim was based on a response to a Freedom of Information Act (FOIA) request that did not, in fact, reveal any new information.

The flu vaccine lawsuit also did not counter the basis of expert agencies and organizations recommendations that pregnant women be vaccinated against influenza to protect themselves and their newborns. This article will review the facts of this action. Continue reading “Flu vaccine lawsuit – a non-win, non-revelation regarding pregnant women”

Maine anti-vaccine legislation appears again – flawed and misleading

On 4 January 2019, the Maine Coalition for Vaccine Choice – a Maine anti-vaccine organization – posted an article about a proposed bill that they called “The Maine Vaccine Consumer Protection Program.” As with the coalition’s previous attempt to pass such a bill, in 2015, the proposal is ill-founded. The premises it is based on are flawed, and the proposals themselves range from directly misleading to not very meaningful. Continue reading “Maine anti-vaccine legislation appears again – flawed and misleading”

Measles causes SSPE – child pays price for anti-vaccine misinformation

On 7 March 2015, a four-year-old Italian girl dubbed “Clara” by the media (real name hidden to protect her privacy) died from subacute sclerosing panencephalitis (SSPE), a complication of measles, after prolonged suffering (the girl was in the hospital in which she died for over 4 months, and has been sick at least since last October, and hospitalized elsewhere). Continue reading “Measles causes SSPE – child pays price for anti-vaccine misinformation”

HPV vaccine fear mongering in an anti-vax book – a critical review

hpv vaccine

In 2018, “The HPV Vaccine On Trial: Seeking Justice For A Generation Betrayed”, was published. It was written by attorneys Kim Mack Rosenberg and Mary Holland, and Eileen Iorio described as a “health coach.”

As the title suggests, the book concluded that the HPV vaccine (from the first vaccine, licensed in the U.S. in 2006) was a betrayal, because it was unjustified, harmful, and with no health benefits. As the authors’ first chapter lays out, their opinion is in tension with statements from health authorities and cancer authorities worldwide – and goes against a large amount of data.

It is no exaggeration to say that the book is ill-founded, misleading, and anti-vaccine to the core. HPV vaccines have been especially signaled out by anti-vaccine activists since their creation. This book draws on anti-vaccine claims made over the years, including most of the older anti-vaccine tropes (claims, by the way, that are not always consistent with each other – for example, is the problem aluminum in vaccines, or a novel and different adjuvant?) and offering new (and ill-founded – see the discussion of chapter 8 below) ones.

To explain the problems with it, three of us divided the subjects in the book, and are reviewing it as a team. A review by Dan Kegel, who has an undergraduate degree in biology from Caltech and maintains a comprehensive site with the data on HPV and HPV vaccines, is found here. A review of the chapters on autoimmunity, aluminum, and a few more by John Kelly, a career biochemist, and molecular biologist and a survivor of HPV+ cancer, will be added later.

The book has four parts. I will not cover all of it, out of concern of making this review overly long. But I will raise some of the highlights. I am putting chapter 2 and 15 aside to address in my discussion below of the general use of anecdotes. Continue reading “HPV vaccine fear mongering in an anti-vax book – a critical review”

The motives of anti-vaccine voices on social media

anti-vaccine voices

A common claim of anti-vaccine voices is that pro-vaccine voices on social media speak for “industry” (apparently, lumping all doctors, health insurance companies, HMOs, health departments, and yes, vaccines manufacturers, into one big industry, and assuming that all those speaking for vaccines are part of that industry). On the other hand, they try to claim that they are simply parents, with no ulterior motives for speaking up (downplaying the part that vast majority of parents are pro-vaccine).

This post provides a different perspective. There are many reasons anti-vaccine voices are so loud – at least some are not as innocent as what is claimed. This post draws on my observations in over 5 years of encountering and listening to anti-vaccine activists.

Anti-vaccine people can feel passionately and speak up about their beliefs out of ulterior motives, including financial or emotional motives. Let’s take a look at the motives of the anti-vaccine voices. Continue reading “The motives of anti-vaccine voices on social media”

NVICP SIDS vaccine decision overturned on appeal – the facts

SIDS vaccine

On July 18, 2018, a Judge of the Court of Federal Claims overturned the NVICP SIDS vaccine decision that awarded compensation to Mr. and Mrs. Boatmon for the death of their baby, JB. The Court found that the Special Master’s decision was arbitrary and capricious because it ignored previous decisions and applied a too-low standard of proof to the case. Continue reading “NVICP SIDS vaccine decision overturned on appeal – the facts”

Vaccines cause SIDS? Not supported by Boatmon vs HHS case

vaccines cause SIDS

This is about the case of little J. B. Boatman, who was born four weeks prematurely, at the 36th week.  However, he rebounded from his early start, and at his four-months, well baby pediatric visit, on September 2 was doing very well and found healthy.  At that visit, J.B. had the routine 4 months vaccines. Tragically, the next day (September 3) little J.B. was found lifeless in his crib. His death was ruled to be the result of Sudden Infant Death Syndrome (SIDS). But did vaccines cause SIDS in J.B.?

His parents filed suit under the National Vaccine Injury Compensation Program (NVICP). The case was decided on July 10, 2017. Special Master  Thomas L. Gowen with the National Vaccine Injury Compensation Program granted J.B’s parents compensation.

In August 2017 the Boatmon decision was shared on anti-vaccine sites as evidence that vaccines cause SIDS. The decision does not, however, support the claim because it is flawed internally in several ways. It misuses and discounts the epidemiological evidence, accepts a problematic theory over the objection of a more qualified expert, and ignores several of the important factors of the case. In addition to its internal flaws, the decision is in tension with many other decisions of NVICP – in fact, it seems an outlier – and it is interesting that the same sites that tout this problematic decision ignore other decisions that ruled otherwise. Continue reading “Vaccines cause SIDS? Not supported by Boatmon vs HHS case”