California SB277 lawsuit update – judge rejected Torrey-Love

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

The California SB277 Lawsuit

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

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

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

The Decision

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Next Steps

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

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

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

Dorit Rubinstein Reiss
This article is by 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, medical issues, social policy and the law. 

Professor Reiss writes extensively in law journals about the social and legal policies of vaccination. Additionally, Reiss is also 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.