Note: there are two suits against the California SB277 vaccination law. The first one, which we’ll call “Buck” for the main complainant, and the second, “Whitlow“, for the first named plaintiff. The State of California has asked that these two cases be combined and switched to Federal Court, but no decision has been made to combine the two cases. However, both are in Federal Court.
Professor Dorit Rubinstein Reiss, author of this article, is trying to keep the readers informed with updates and interpretations of current activities. It’s fluid, so the updates are here to keep the reader current.
Originally, my plan was to just put the updates with each the original articles for each case, but that got unwieldy really fast. Thus, I made a decision to keep each update to the point at hand, hoping that readers will click on the original articles to get the background information.
Again, Professor Reiss and I will update as necessary. I will repost the article whenever there’s a significant update to the lawsuit.
Update – 27 July 2016
On 25 July, Attorney Phillips, who filed the Buck lawsuit – one of the two lawsuits against SB277 – has filed a second amended complaint and a request to move the case back to state court after the state moved it to federal court.
Basically, he used the same (bad) arguments, and just changed clauses from the federal to the state constitution. I don’t see a very substantive difference.
His religious freedom claim is watered down, and his discrimination claim still cites the federal Brown v. Board of Education of Topeka. His religious complaint is just as incorrect under California’s constitution: California’s court apply Employment Division v. Smith, which says that generally applicable laws that are neutral on their face don’t have to provide a religious exemption (see: Roman Catholic Archbishop of Los Angeles v. Superior Court, 131 Cal.App.4th 417 (2005) and Valov v. Department of Motor Vehicles, 132 Cal.App.4th 1113 (2005))
Attorney Phillips repeats the comparison to Brown v. Board of Education, again, an incorrect comparison. Most people realize the difference between behavior-based distinction – treating people differently when they act differently – and discrimination because of an immutable characteristic such as race. Not vaccinating is behavior. Treating those that don’t vaccinate differently is no more discrimination than is treating those who drink and drive differently.
The Court accepted the amended complaint and said it’s considering how to use its discretion to keep or return the complaint to state court. The judge asked the state to provide an argument why it should not be returned to the state.
My reading of the tone of the minutes is that the judge is currently inclined to move the case back to state court, but that will, of course, depend on the state’s arguments.
(Note: case documents are linked at the bottom of this article.)
Update – 14 July 2016
On July 14, 2016 the plaintiffs in the Whitlow case filed an amended complaint. As will be pointed out, the complaint doesn’t cure the problems in the initial complaint. It mostly adds plaintiffs and doubles down on trying to rewrite the facts.
According to Education for All – one of the organizational plaintiffs apparently created just in preparation for this lawsuit – a court hearing on the preliminary injunction was scheduled for August 12, 2016. A motion for preliminary injunction was filed July 15, 2016.
Several key points are addressed in each of the sections below:
Suit challenges SB277 factual premises
The amended complaint – as did the original complaint – seems to be focusing most of its effort on challenging the factual premises behind SB277. The same argument opponents made in the legislature on the facts – and lost on – are raised again, including the claim I already addressed that there is no public health emergency and the ill-founded claim that vaccine-deprived children are not a risk to others or do not make schools less safe.
Over decades of litigation attacking exemptions, the courts have repeatedly rejected attempts to rewrite facts in this way, instead following the scientific consensus that vaccines are safe and effective and that declines in herd immunity – as was the case in several parts of California – put children at risk.
The courts have been consistent because there is abundant data showing that risk. Here is a collection of studies showing that risk (pdf). Some of the factual complaints are even more problematic – for example, the claim that SB277 was rushed through the legislature, when the law, in fact, went through four separate legislative committees – three in the Senate, when the usual is one, at most two, and one in the assembly.
First Amendment constitutional claims
The amended complaint does not really cure any of the problems with the constitutional claims. It does not make a good argument why courts should reject decades of jurisprudence rejecting First Amendment claims on this issue – see above.
Nor do they make a good case for applying Serrano in this context, where the issue is not a protected classification but a choice to violate a health and safety requirement. It uses the language of equal protection but the sources it cites apply that category to immutable characteristics – not to a choice to reject a health and safety requirement.
The difference between a distinction based on a race and a distinction based on risk-causing behavior – in this case, refusing to protect children from disease before sending them to school – is glaring. The closest the complaint comes is to argue that the law discriminates against families with non-English speaking parents – and that claim is incorrect, since the law provides an option of enrolling in an independent study program with a public school, solving that issue.
Overall the amended complaint repeats the same constitutional claims already addressed, including the somewhat strange claim of bodily integrity of the vaccine-deprived children, children who do not actually have a choice in the matter, and whose bodily integrity is unlikely to be respected by the diseases they are not being protected against.
Or the incorrect comparison between children with medical conditions – where the children and their parents have no choice – and children put at risk – and placing other at risk – by choice, by depriving them of life-saving vaccines. We don’t treat similarly people who have a choice and people who do not.
The amended complaint, again, emphasized implementation issues. I will address specifically the issue of medical exemptions that the complaint seems overemphasize. But as a general matter, implementation questions and a period of figuring out how to implement are part of the business as usual of applying a new law.
They do not make the law unconstitutional. Nor do differences of opinion between counties in applying statutes – those are inherent in a decentralized system like ours. Some involvement of courts in clarifying aspects of the law may be needed; but that will help interpret the law, and will not lead to it being struck down.
Regarding the medical exemptions, the complaint’s discussion of this suffers from serious deficiencies. Here are several of the key problems:
- Before SB277 was passed, the law vested discretion in the physician to provide a medical exemption, as long as the physician explained why. The new law added some language on family history, but did not change that basic tenet: the physician has discretion whether to grant medical exemptions. Before and after the law. The physician was never bound by the CDC’s list of contraindication, though it’s appropriate for physicians to be guided by it. This is not a change, and the complaint is mistaken to claim otherwise.
- The Complaint cited one of my blog posts to attack Dr. Dean’s pilot project related to medical exemptions. That’s doubly wrong. First, while I appreciate the reference, and if any of the judicial staff follow it I hope the links and information provided help them understand the problems with the lawsuit, presenting this blog post as anything but a private opinion of a private individual doesn’t hold water. I don’t work for the California Health Department or any county. I certainly don’t represent them or provide anything but my own opinion and analysis when I write a blog post. Citing it as some sort of official position is a mistake.
- That said, claiming that an attempt to examine exemptions and prevent abuses somehow violates SB277 is also incorrect. Physicians’ discretion is not a license to abuse and to do whatever they want, with professional norms irrelevant. Physicians’ discretion is always bound. A physician has discretion to give medicine, but writing false prescriptions to support an addiction is an abuse. A physician has discretion to give someone a sick note for work (or school), but faking it is an abuse.A physician has discretion to provide a medical exemption – but selling unjustified medical exemptions as a way to make money or just to let parents without real medical reasons off the hook is an abuse.The California Health and Safety code does not give physicians free rein to sell fake medical exemptions or to abuse their discretion when they provide them. There is evidence that some do. It’s completely appropriate for both individuals and the state to step up and act to prevent that. While the county health departments aren’t the body that disciplines physicians, they are responsible for public health.Since fake medical exemptions can lead to undermining of herd immunity, they have a direct interest in finding out if they happen, and collecting the data to study this is not only legal, it’s well within their responsibilities. Any disciplinary action against erring physician will have to be taken by the appropriate bodies, of course – and with disciplinary action as rare as it is the specter of going after physicians who write justified – or even mostly justified and only occasionally mistaken – exemptions is unrealistic.
- Finally, collecting data on medical exemptions and mapping out abuses doesn’t touch on any plaintiffs’ personal rights. Any privacy concerns (and the complaint repeats the problematic claims about FERPA, already addressed, and other similar claims) were removed when Dr. Dean told schools to redact pupils’ information. The focus is clearly not on individual exemptions but on a pattern of abuses. Even if plaintiffs had a right to a fake or unjustified medical exemption – and that’s a problematic claim – it’s not violated by the counties’ efforts to examine medical exemptions.
- And frankly, it’s still disturbing that the complaint suggests that acting to prevent selling fake medical exemptions from money is illegal. I would hope most people would see that practice as problematic.
In short, the amended complaint against the California SB277 vaccination law does not cure the serious problems in the constitutional claims of the plaintiffs. I stand by my assessment. The constitutional claims against the act have very low chance of success. In my view, chances are that any successes the plaintiffs will have will be narrow, and very specific, wins on interpretations of provisions that will almost certainly leave the heart of SB277 untouched.
- FIRST AMENDED COMPLAINT FOR DECLARATORY, INJUNCTIVE AND OTHER RELIEF (pdf)
- MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF PLAINTIFFS’ MOTION FOR PRELIMINARY INJUNCTION (pdf)
- Buck SB277 –second amended complaint
- Buck SB 277 – Minutes removal back to state court