Medical exemption abuse – hurting California’s vaccine uptake

Medical exemption abuse

Since the enactment of California’s SB277, which prevents parents from using religious or personal beliefs to excuse their children from vaccinations, has lead to much higher vaccine uptake rates in California schools. The law still allows medical exemptions, which are medically-related reasons for not vaccinating, such as allergies to ingredients in the vaccine. Unfortunately, this had led to medical exemption abuse in many schools in California.

In California, medical exemptions require a form signed by their doctor stating a valid medical reason for any child to not receive vaccines. Generally, less than 2-3% of children would have medical reasons to not be vaccinated. Moreover, most of these children would only be exempt from a few vaccines, not all of them. Continue reading “Medical exemption abuse – hurting California’s vaccine uptake”

California SB277 lawsuit update – judge rejected Torrey-Love

California SB277 lawsuit

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.

Pet vaccinations – old anti-vaccine canards show up again

pet vaccinations

Recently, I dealt with the lame myth that dogs might get autism from vaccines. No, they won’t. Now a new article in the online magazine Salon is digging up every anti-vaccine myth to try to convince people to reduce pet vaccinations.

In the recently published article, Salon, who gave a pulpit to Robert F. Kennedy Jr.’s unscientific and ignorant anti-vaccine rants (and subsequently retracted it after withering criticism), try to make a claim that we over-vaccinate our pets with no consideration to the health of our pets.

And to do this, Salon appeared to turn to the anti-vaccine handbook to bring up every myth that we’ve debunked in human vaccinations but applying it to pet vaccinations. The article reads like “I support vaccines but…” It’s the “but” that matters, just making the article sound more anti-vaccine than pro-vaccine.

Time to take a look at this balderdash.

Continue reading “Pet vaccinations – old anti-vaccine canards show up again”

HPV vaccine and autoimmune diseases – no link in new 2 million patient study

HPV vaccine and autoimmune diseases

The link between HPV vaccine and autoimmune diseases is one of the enduring myths about Gardasil. It is regularly debunked by scientists in large scale case control studies, but that never appears to be enough to silence the critics.

For example, the so-called autoimmune syndrome induced by adjuvants (ASIA) pushed by an Israeli physician, Yehuda Shoenfeld remains a trope that pervades the anti-Gardasil community. Shoenfeld claims that the HPV vaccine is causally linked to various autoimmune syndromes. However, ASIA is not accepted by the scientific and medical community (and see this published article), and was rejected by the United States vaccine court. It should not be used by parents as a reason to reject the HPV vaccine..

Large studies (and this large study) continue to reject links between the HPV vaccine and autoimmune diseases. Now, we’re going to take a look at a recently published article that continues to reject any link.

Continue reading “HPV vaccine and autoimmune diseases – no link in new 2 million patient study”

Japan bans Gardasil – debunking myths about the HPV vaccine

Japan bans Gardasil

One of the most popular zombie memes and tropes of the anti-vaccination movement is that Japan bans Gardasil – oh noes! Of course, like a lot of the junk information passed along by the anti-vaccine crowd, it’s completely false, unless you’re willing to take anything they say on faith.

There are a couple of consistent trends in the anti-vaccine movement. They claim that vaccines cause autism (disproved with the highest quality of evidence); and they maintain that the HPV vaccines cause all kinds of harm to teens and young adults. And there are literally mountains of data derived from numerous huge epidemiological studies that the Gardasil cancer preventing vaccine is one of the safest vaccines on the market (and that’s a high bar to exceed, given the high safety profiles of all vaccines).

So if you really want to prevent cancer, one of the best ways available to you is getting the HPV vaccine. The idea is so simple, yet is clouded by the myths about HPV vaccines – one of the most popular, of course, is that Japan bans Gardasil. Let’s examine this fable with a critical and skeptical eye.

The tl;dr version – Japan did no such thing.

Continue reading “Japan bans Gardasil – debunking myths about the HPV vaccine”

Vaccinate dogs – they are not going to get autism from vaccines

vaccinate dogs

We vaccinate dogs to protect them from some serious diseases that could harm our precious pooches. Rabies. Distemper. Parvovirus. Bordetella. Hepatitis. Lyme disease. Vaccine preventable diseases can devastate our canine friends, and there isn’t one good reason to keep them from the best medicine we can offer.

Not only are these diseases dangerous to our pets, but some of these diseases can be passed to us. Rabies is a horrible disease, and if a dog contracts it, they may have to be euthanized. And if that rabid dog bites a child, they have to endure a very painful series of vaccines.

No, rabies cannot be prevented by a gluten free, organic diet for your dog. We vaccinate dogs so that if they are bitten by some rabid animal, they are protected from that disease. Continue reading “Vaccinate dogs – they are not going to get autism from vaccines”

HPV vaccine safety study – biased, poor design and results

HPV vaccine safety study

If you want to read a quality HPV vaccine safety study, I can point to numerous high quality, unbiased, well-designed epidemiological studies that show that HPV vaccines are safe and very effective.

Here’s a review of a study of 200,000 subjects.

Here’s a review of a study with over 1,000,000 subjects.

Here’s a review of a study with over 2,000,000 subjects.

If you want to give us a new HPV vaccine safety study, it better have large numbers (to identify small differences in risks), be unbiased, and use some sort of control group.

Continue reading “HPV vaccine safety study – biased, poor design and results”

Religious exemption to vaccines – Indiana court rules against mother

On July 26, 2017 a Court of Appeals in Indiana interpreted a custody decree to require an unvaccinated child to be vaccinated. In doing so, it overturned an earlier, problematic ruling by a trial court. This case has important lessons for families in this situation, including the importance of the content of custody decrees, and – although it’s not clear from the decision – the importance of countering anti-vaccine, unreliable experts.  It also rejected the use of a religious exemption to vaccines to prevent the child from being vaccinated. Continue reading “Religious exemption to vaccines – Indiana court rules against mother”

Paul Offit MD – debunking the anti-vaccine tropes and myths

Paul Offit

I have long considered Paul Offit MD as one of heroes and leaders of the public discussion of how vaccines save lives, and how they have made the lives of the world’s children healthier and better. Dr. Offit, together with Edward Jenner (the father of immunology), Jonas Salk (discoverer of the polio vaccine), and Maurice Hillman (inventor of the MMR vaccine against measles, mumps and rubella), should have statues place outside of every pediatric hospital in the country for the number of lives that they have saved.

Unfortunately, since Dr. Offit is considered one of the “leaders” of the pro-vaccine majority, his name has been demonized by the anti-vaccine cult. These people use the Big Liea Nazi propaganda technique where a known falsehood is repeatedly stated, then treated as if it is self-evidently true in hopes of swaying the course of an argument in a direction that takes the big lie for granted rather than critically questioning it or ignoring it.

The vaccine deniers constantly repeat untruths about Dr. Offit so that those lies eventually evolve into apparent truths, at least for those who hold onto their pseudoscientific anti-vaccine beliefs.

The problem is, of course, that if you’re a new parent who is confused by what vaccines may or may not do, you’d assume you could not accept anything that Dr. Offit says because of those Big Lies, and many of the ridiculous tropes and memes of the vaccine denialists. And this is sad.

Let’s counter the Big Lie with the Big Facts.

Continue reading “Paul Offit MD – debunking the anti-vaccine tropes and myths”

Bob Sears’ personal attacks on Paul Offit – anti-vaccine evidence

bob sears

On March 13, 2015 Dr. Bob Sears, a California antivaccine physician, wrote a post on Facebook attacking Dr. Paul Offit, pediatrician, vaccine inventor, scientist, vaccine advocate and educator.

Dr. Sears wrote:

A FAILED ATTEMPT TO CHANGE HIS NAME FROM DR. PROFIT TO DR. PROPHET

Everyone’s favorite infectious disease doctor tried to write a compelling argument as to why parents should not have religious freedom to decline vaccines, and the New York Times shot it down. Here’s a link to the Time’s review. So, sorry to help publicize this waste of trees, but the more people who know that this vaccine advocate doesn’t care about religious freedom in the United States the better. Enjoy!
Dr. Bob.

sears-facebook-1 Continue reading “Bob Sears’ personal attacks on Paul Offit – anti-vaccine evidence”