California vaccination rate down – linked to fake medical exemptions?

California vaccination rate

The California vaccination rate had been slowly growing since the implementation of SB277 in 2016, which eliminated the broadly abused personal belief exemptions to vaccines for students. Unfortunately, anti-vaccine parents abused the law by getting mostly fake medical exemptions (see Notes) to vaccines, which seems to have exploded over the past year or so.

In fact, the California Medical Board had put one of the more famous anti-vaccine pediatricians, Dr. Bob Sears, on probation for abusing vaccine medical exemptions and other issues. In 2016, the Executive Director of the Medical Board of California, represented by the office of the California Attorney General, then headed by Kamala Harrisbrought a complaint against Dr. Sears (pdf).

And in June 2019, a complaint against Dr. Sears was brought by Kimberly Kirchmeyer, executive director of the Medical Board of California, which alleges that Sears signed vaccine medical exemptions for two siblings. Those children did not have medically-recognized contraindications for any vaccines, based on their medical records.

Dr. Sears is merely the tip of a huge iceberg of physicians and other medical professionals signing off on fake medical exemptions – many of these physicians charge exorbitant fees for this “service.” There are several Facebook groups where anti-vax parents share information about these physicians who lack any concern for the long-term health of children. 

As a result of this ongoing abuse, the California legislature proposed SB276, which puts some stricter controls on medical exemptions. Essentially, SB276 states that the physician writing the exemption would have to submit a copy to the California Department of Health, and the department would create a system to review medical exemptions from schools with less than 95% immunization rates or doctors who submitted more than 5 exemptions.

SB276 won’t eliminate all abuse, but it should help.

Unfortunately, until SB276 is passed by the legislature and signed into law by the governor, the misuse of medical exemptions continues. And that might have led to a decrease in the California vaccination rate. Continue reading “California vaccination rate down – linked to fake medical exemptions?”

Dr. Ron Kennedy loses appeal against providing records to medical board for vaccine exemptions

Ron Kennedy

On 14 June 2019, a California Court of Appeals issued a decision (pdf) that means, in essence, that Dr. Ron Kennedy (see Note 1) has to provide the Medical Board of California with medical records of three patients for whom he wrote vaccine medical exemptions. This is part of an ongoing saga around Dr. Kennedy’s exemption writing.

Ron Kennedy is a licensed MD who owns a clinic called the Anti-Aging Clinic in Santa Rosa, CA,  which offers, apparently, anti-aging treatments. The Yelp reviews for the clinic suggest he has a long history of filling medical marijuana prescriptions. 

I am going to review Dr. Ron Kennedy’s background and the case in this article. Continue reading “Dr. Ron Kennedy loses appeal against providing records to medical board for vaccine exemptions”

Predicting US measles outbreak – vaccine uptake and international travel

The locations of the current US measles outbreak (or epidemic) was predicted by researchers in an article recently published in Lancet Infectious Diseases. The amazingly prescient predictions were not based on magic, but on a scientific analysis of two factors – the vaccination rate and international travel tendencies by county in the United States.

And the statistical website, Five Thirty-Eight, took the predictions and listed out what happened during this US measles outbreak. The predictions were spot on.

Time to look at this study and its predicted results.

Continue reading “Predicting US measles outbreak – vaccine uptake and international travel”

Dr Bob Sears license on probation for invalid vaccine exemptions – again

Dr Bob Sears

On 27 June 2018, Dr Robert (Bob) Sears, an anti-vaccine pediatrician, agreed to a stipulation with the California Medical Board that put his license to practice on probation and subjected him to a set of non-trivial conditions.

The revocation of the medical license of Dr Bob Sears was stayed by the Medical Board – it will not become operative unless he violates the conditions – but given the specific allegations in the complaint and the fact that this was his first disciplinary action, an immediate full revocation was not likely. The sanction is non-trivial, and a clear warning against future misconduct.  Continue reading “Dr Bob Sears license on probation for invalid vaccine exemptions – again”

California SB276 – legislation to reduce vaccine medical exemption abuse

sb276

On 20 June 2019, after a long day of testimony on California SB276 from both sides of the mandatory vaccine issue, the assembly health committee voted 9 in favor, 2 against, and 2 abstaining to move forward with the bill which can prevent fake medical exemptions.

This post will describe the amended bill and then shortly address today’s events. Continue reading “California SB276 – legislation to reduce vaccine medical exemption abuse”

2019 measles epidemic still going strong – the MMR vaccine stops it

2019 measles epidemic

As of 10 May 2019, the CDC has reported 839 cases in the 2019 measles epidemic – the vast majority of these individuals were unvaccinated. As a result, this year is the worst for measles in the USA since 1994, just prior to the startup of the Vaccines for Children Program (VCP) that provides free vaccines to US children.

VCP was passed into law as a consequence of another measles epidemic, from  1989-91, that resulted in over 55,000 reported cases of measles, 11,000 measles-related hospitalization, and 123 deaths. It’s amazing what vaccines can do. Continue reading “2019 measles epidemic still going strong – the MMR vaccine stops it”

Vaccine medical exemptions – California legislature aims to curb abuse

On 25 March 2019, Dr. Richard Pan, a California Senator, amended a bill he previously submitted to tighten the process of granting vaccine medical exemptions in California. The bill is a response to an increase in medical exemptions due to the willingness of some physicians to sell unjustified vaccine medical exemptions to misguided anti-vaccine parents. If it passes, it can help curb abuses. Continue reading “Vaccine medical exemptions – California legislature aims to curb abuse”

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.

Richard Pan wins re-election despite Robert F Kennedy Jr anti-vaccine ad

Richard Pan

For those living under a rock ( about which, I’d have to ask “why?”), the USA had its so-called mid-term elections, which are state and Federal elections that happen at the halfway point of the US President’s term. Unfortunately, instead of the blue wave, we got more of a blue ripple, where the Democrats barely won the House, with positive and negative results for Team Blue across the country. In California, there was one state Senate election that was interesting to many of us, the re-election of Richard Pan who is a staunch supporter of vaccines.

Dr. Pan is not only a pediatrician but also is a Democrat who represents the 6th Senate District, located in Sacramento, CA. For those you who don’t follow California politics, Dr. Pan was the prime sponsor of SB277, which eliminated the abused personal belief exemptions for vaccines. The law essentially mandated vaccines for children entering school, and it has greatly increased vaccine uptake for school-aged children in California.

SB277 still allowed for medical exemptions, which are exemptions that are medically necessary such as allergies or immune disorders. Unfortunately, the anti-vaccine crowd has abused this “loophole” by buying, in many cases, medical exemptions from unscrupulous individuals.

Dr. (or is it Senator) Richard Pan has been targeted by the anti-vaccine crowd many times for his support of mandatory vaccination. They have even resorted to vile and disgusting racist attacks against him. It has even reached a level of violent hate speech that seems to be common in US politics these days.

But Richard Pan has stood his ground on vaccine mandates, and he continues to be a strong proponent of children’s health issues. And that includes vaccines.

Just prior to the election, Robert F Kennedy Jr, a science-denying and anti-vaccine nutjob Democrat In Name Only, decided to attack Richard Pan in a very expensive advertisement which ran in the Sacramento area. RFK Jr has gone off the deep end lately, not only running this ad against a fellow liberal Democrat but also attacking the integrity and ethics of one of the most respected physicians in medical research. Kennedy subscribes to pseudoscience and false information about vaccines to further his agenda. And let’s not forget, he genuflected to Donald Trump in a lame attempt to create a vaccine safety commission.

Yeah, I think RFK Jr is a black mark on the Kennedy name.

Well, none of this nonsense mattered in the election. Richard Pan won his California State Senate seat 68-32% over an anti-vaccine independent, Eric Frame. Admittedly, Senate District 6 is overwhelmingly Democratic – Hillary Clinton won the district by about the same amount over Donald Trump in 2016.

Richard Pan wasn’t the only pro-vaccine candidate that mattered, but as a California citizen who thinks that protecting young children from vaccine-preventable diseases is a critical healthcare issue, I felt that the re-election of Dr. Pan was a great thing for the state.

Congratulations to Richard Pan. I hope he goes far in California politics (if we’re lucky, there may be a US Senate position open in California in 2020, hint hint).

And to Robert F Kennedy Jr. – you’re a science denier and traitor to progressive politics. You’re in bed with Republicans which include in their membership avowed science deniers and vaccine haters, Donald Trump and Rand Paul. Kindly remove your cranium from your colon. Please.

Of course, the anti-vaxxers are whining about Richard Pan and other pro-vaccine Democrats winning yesterday. I’m laughing. Although I wish the rest of Team Blue had done a bit better.