Today I attended the hearing for a preliminary injunction in the Whitlow suit, one of the lawsuits against California’s SB277 vaccine law. I arrived early to try and get an impression of the judge, and because I was worried that there would be no room in the court (in the end, everyone who wanted got in). I sat in the court from 11am, and after the courtroom was cleared for lunch break stood in line until it was opened, around 1:15.
Below are my impressions. Since Judge Sabraw ordered that all electronic devices be off during the hearing, and I did not bring a legal pad, I could not take notes, so this is based on my recollections – and I apologize to the lawyers on either side if I misremembered their points. I’ll be happy to be corrected on any details.
In this hearing, the question was whether plaintiffs should get a preliminary injunction, an order putting the SB277 vaccine law on hold until the case is decided.
The standard for a preliminary injunction is a four part standard that looks at:
- chances of winning on the merits;
- whether there will be irreparable harm to the plaintiffs without the injunction;
- how the balance of equities falls – whether the harm to the plaintiffs is larger than the harm to the defendants from granting the injunction; and
- whether an injunction is in the public interest. In the hearing, most of the focus was on the legal merits, though there was some discussion about the potential harm to the plaintiffs.
I admit that my impression was that on almost every issue the state had a better argument, with stronger case law supporting it. However, I am – obviously – a supporter of the SB277 vaccine law, and that may bias my views. It was a long hearing, and I’m no doubt not covering every detail.
Judge Dana M. Sabraw is an experienced judge, with a lot of litigation experience, and has been on the federal bench since 2003, when he was appointed by President George W. Bush.
Sitting the courtroom during an earlier session, 11-12, I watched him work through four criminal law cases. My impression was that he was thorough, penetrating, thoughtful, and very attentive and respectful to the people in the courtroom – both attorneys and defendants.
That impression was reinforced by his conduct during the hearing. He has clearly read the submissions carefully, familiarized himself with the cases, and gave thought both to the way he wanted the hearing to be handled and to the issues before him.
As some of you may already know, Judge Sabraw did not rule on the issues immediately, but promised a ruling as soon as practically possible, though he made it clear that it would take at least a week.
So we do not know how the case will turn out. I will give my assessment of the issues and my estimate of how the discussion went on them. I have an opinion on what will happen, but at this point it’s no more than a guess. This discussion is pretty technical, but technicalities are important here. I hope it’s clear.
The SB277 vaccine law issues
The judge clarified with the plaintiffs that the issue under discussion is an injunction against the SB277 vaccine law generally, and not against any of the counties. What this meant is that although the original complaint devoted much space to attacking Santa Barbara County’s pilot project to examine medical exemptions, and although Santa Barbara County had sent representation, their interests were not at stake in this hearing, and nothing was asked against them.
Delay in Submission?
Judge Sabraw asked the plaintiffs to provide an answer to the state’s point that they delayed filing the lawsuit long past the passage of the law and the effective date of the law. There is caselaw suggesting that delay counts against someone asking for a preliminary injunction, and the state was arguing that any urgency the plaintiffs face was of their own making.
There was some back and forth on whether the effective date was January or July 2016. On the substantive issue, Attorney Turner, representing the plaintiffs, argued that the plaintiffs were in negotiations with the school and some only got an answer as late as June 29.
While that may be true of individual plaintiffs, it’s not a good reason to delay filing a lawsuit in general. I think the state is right that the plaintiffs knew of the law a long time in advance, and at least some plaintiffs had to have known they would not be able to send their children to school without the required vaccines in advance. While it is possible that a few of the individual plaintiffs found out late, plaintiffs can be added later, and were, in this lawsuit. That is not a good argument for not filing a lawsuit at all until the last moment when at least some families likely knew well in advance.
Why not in State Court?
The judge asked the plaintiffs why, if their main concern was a California-based right to education, and that was what distinguished this lawsuit from others, they are filing in federal court rather than state court.
The plaintiffs’ attorney James Turner stumbled a bit there: he first mentioned they also have federal constitutional claims (which was fine), but then he said they will be arguing for a federal right to education, which is not in their submissions as far as I have seen. This is a hard claim to make – our courts have not acknowledged a federal right to education, and in fact rejected that claim.
Education is mostly protected by state constitutions. But later the plaintiffs’ attorneys fixed that and suggested they also have federal claims related to federal disability acts, which is a fair answer.
Discussion of the Constitutional Issues
The following discussion went back and forth between these issues, and I’m separating it out for convenience. I hope I caught most of it.
Jurisprudence around exemptions
The judge pressed the plaintiffs’ attorneys about the previous jurisprudence surrounding exemptions, going through Jacobson v Massachusetts, Zucht v King, Prince v Massachusetts, Phillips v. City of New York and Workman v. Mingo Board of Education (pdf), asking them about the fact that no court has ever struck down an exemption law. He spent most of the hearing on these issues, and frankly, I don’t think the plaintiffs had very good answers. The state attorney also emphasized these cases and the fact that no court has struck down or enjoined an immunization law.
The plaintiffs tried to distinguish the cases, which means they tried to claim the facts here were different, but many of their claims were problematic. For example, the plaintiffs claimed that Zucht v. King, in which the Supreme Court upheld a school immunization mandate with no exemption, was not decided on constitutional grounds.
However, that’s incorrect. According to the ruling in Zucht v King:
[infobox icon=”quote-left”]…although the validity of a law was formally drawn in question, it is our duty to decline jurisdiction whenever it appears that the constitutional question presented is not, and was not at the time of granting the writ, substantial in character. Sugarman v. United States, 249 U. S. 182, 184, 39 Sup. Ct. 191, 63 L. Ed. 550. Long before this suit was instituted, Jacobson v. Massachusetts, 197 U. S. 11, 25 Sup. Ct. 358, 49 L. Ed. 643, 3 Ann. Cas. 765, had settled that it is within the police power of a state to provide for compulsory vaccination.[/infobox]
In other words, the court is addressing the constitutional issue and saying it’s settled, reaffirming the Jacobson v Massachusetts decision.
Similarly, the plaintiffs claimed that the Workman and Phillips decisions did not address laws without any non-medical exemptions. But Workman addressed West Virginia’s immunization statute, which has no non-medical exemption.
And while Phillips did address two children who had medical exemptions and were only excluded during an outbreak, it also addressed one child who was denied a religious exemption, and the ruling, covering all three cases, was powerful and general, highlighting the fact that states don’t have to provide any exemptions.
The Judge asked the plaintiffs on the combination of the child’s health and public health – on the fact that vaccines protect children from diseases. The plaintiffs had two arguments against this: first, that the state has to prove that when they choose not to vaccinate, the plaintiffs were acting against the children’s best interests; and second, that the state in its brief emphasized the public health. The second argument is probably stronger, since Prince v. Massachusetts did emphasize the role of vaccines in protecting the child.
The plaintiffs also claimed that there is a difference between discussing mandates and abolishing an exemption, and the judge pressed them on that, asking whether if there is no duty to give an exemption, why is there a problem to abolish one – a point the state attorney reinforced and repeated. I don’t really see a meaningful distinction there and I don’t think the plaintiffs managed to suggest one.
The plaintiffs also attacked the SB277 vaccine law for making what they described as arbitrary distinctions by treating students with individualize education programs (IEPs) differently, and having a gradual implementation. I think the Judge addressed the latter by pointing out that this is practical, gradual implementation of the law to give families time to adjust. As to the distinctions, that claim is also a little strange. Children with IEPs are really, and meaningfully, different from children without IEPs, and federal law treats them differently.
Right to Education
The state argued that the SB277 vaccine law does not directly undermine the children’s right to education, but instead addresses the parents’ failure to meet their obligations before sending their children to school.
In response, plaintiffs’ attorney Kimberly Mack Rosenberg (I think that she is the only female attorney listed on their side, and I thought she was the most impressive in her arguments for the plaintiffs) – disagreed, saying it directly affects the children’s education. The state also pointed out that SB277 promotes education by improving the safety and health of schools and protecting students from outbreaks: outbreaks interrupt education.
Attorney Mack Rosenberg passionately argued against treating unvaccinated children as disease vectors (her words). She emphasized that these children are healthy. While no child should be described as a disease vector, the fact remains that vaccine-deprived children are at substantially higher risk of preventable diseases (pdf), and when they congregate, they increase the risk of outbreaks in their community.
Healthy they may be, and if herd immunity is robust, they may remain healthy – as long as they are not taken to a country where the diseases are endemic (like many countries in Europe) or exposed to infected travelers. But they certainly are at higher risk themselves and through no fault of their own (they don’t have a choice; it’s the parents who decide not to protect them against disease) increase the risk to others. By improving rates of immunization, the SB277 vaccine law is intended to help protect those children too and keep them in good health.
Attorney Mack Rosenberg also suggested that it’s unfair to allow children with HIV or Hepatitis B to attend while keeping out vaccine-deprived children; but that is not the same. Families of children with diseases do not have a choice in the matter. Families denying their children vaccines have made that choice.
The state also responded to this argument by raising a number of cases dating from the late 19th century and early 20th that upheld immunization mandates in light of constitutional provisions protecting the right to education. These included two California cases: French v. Davidson, 143 Cal. 658 (1904) that upheld San Diego’s school immunization requirement, and Williams v. Wheeler, 23 Cal. App. 619 (1913) that looked at such a requirement to attend university, with no exemption.
These are strong precedents. The plaintiffs pointed out the cases did not expressly refer to a fundamental right to education – and they could have correctly pointed out that they preceded Serrano v. Priest, the California cases that struck down funding disparities in education in the name of equal access to education – but these are still strong cases showing the California courts supporting immunization requirements in spite of a constitutional right to education. So is Love v. Superior Court, 226 Cal. App.3d 736 (1990), which in the state’s brief is quoted thus:
[infobox icon=”quote-left”]…[t]he adoption of measures for the protection of the public health is universally conceded to be a valid exercise of the police power of the state, as to which the legislature is necessarily vested with large discretion not only in determining what are contagious and infectious diseases, but also in adopting means for preventing the spread thereof.[/infobox]
Freedom of Religion
The parties argued whether there is a requirement of providing a religious exemption. As I have pointed out in the past, the key case Employment Division, Department of Human Resources of Oregon v. Smith, 494 U.S. 872 (1990) ruled that a state can apply a “neutral law of general applicability” to those with religious objections. This is generally interpreted to mean that you don’t have to give a religious exemption from a general law.
Plaintiffs tried to claim that if you give any secular exemptions, you have to also give a religious one, so the existence of a medical exemption means you have to give a religious one. But there’s nothing in Smith that support that, and the second case they mentioned – Gonzales v. O Centro Espirita Benficiente Uniao Vegetal, 546 U.S. 418 (2006) doesn’t help them; there it was not a matter of a secular exemption v. religious exemption, but there was a religious exemption that tried to treat different religions differently.
In addition, there is some language in Smith about hybrid rights, suggesting that previous cases taking a stricter approach to freedom of religion did so because those cases dealt with hybrid rights, though it’s not quite clear what that means. Plaintiffs tried to argue this was a case of hybrid rights, though I’m not quite clear what the hybrid rights were. The judge suggested the rights were religion and equal protection, but that’s a little strange, because the SB277 vaccine law doesn’t discriminate between religions – it’s not a combination of religion and equal protection.
At any rate, the parties argued whether the Court of Appeals for the Ninth Circuit, the Federal Court of Appeals whose jurisprudence governs California in the absence of Supreme Court decisions, accepted that doctrine. The state said the case the plaintiffs tried to rely on was withdrawn and provided other cases.
Strict Scrutiny v. Rational Basis
An important question in the case is which standard of review to apply to SB 277. In short, the two relevant standards are rational basis, which applies to most decisions of public administration; and use of state power, and require only that the state demonstrate that what it is doing is rationally related to achieving a legitimate state interest. It’s a pretty lenient standard.
The state argued that this should apply and was applied to use of state power to prevent disease. In contrast, plaintiffs argued that government must show that the challenged classification serves a compelling state interest and that it is necessary to serve that interest. It’s much harder to win under that standard.
The state also argued that the standard under other cases was rational basis, and the plaintiffs suggested it should be strict scrutiny because of the hybrid right doctrine or because of the harm to the right to education.
The state also suggested that even under strict scrutiny, preventing disease outbreaks is a compelling interest and the law is narrowly tailored because it’s limited to specific diseases. The plaintiffs tried to argue about the diseases (e.g. about tetanus not being contagious).
These are the main issues I remember. As I said, my view is that the state had better arguments and was much better supported by existing caselaw. Now we need to wait for Judge Sabraw’s decision, which as he said, will take at least one week, maybe two, and whatever it is, will likely be appealed to the Ninth Circuit Court of Appeals.