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.

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.

Constitutionality of mandatory vaccinations – Robert F Kennedy Jr. is wrong

If you’re a regular reader of this blog or are just generally aware of current issues regarding vaccinations, you know that Governor Jerry Brown of California signed SB 277 into law. The law removes so-called “personal belief exemptions” for vaccinating children before they enter schools.

Personal belief exemptions were used (and frequently abused) by parents in California to exempt their children from vaccinations using religious beliefs (hardly any mainstream religion is opposed to vaccinations) or the “I don’t like vaccines” belief statement. So many California children were not fully vaccinated, especially when they were clustered in certain areas of the state, lead to several outbreaks of measles, whooping cough, and other infectious diseases.

Thus, the California Senate, led by Senator and Dr. Richard Pan, voted for SB 277, which sailed through the California Senate and Assembly, subsequently becoming law. Its sole purpose was to protect the children of California, the country’s most populous and wealthiest state, from ravages of diseases that were once on the verge of extinction.

Despite the overwhelming support from the legislature and citizens of the state, some groups remain steadfastly opposed. One trope being pushed is doubts about the constitutionality of mandatory vaccinations for children.

Even a group of lawyers wrote a letter to the California legislature, “Statement of Lawyers Opposed to California SB 277,” that tries to deny the constitutionality of mandatory vaccinations for children. The letter concludes:

…we strongly urge you to decline the temptation to tamper with California’s legislative scheme that works to achieve public health objectives while protecting the rights of individuals to make conscientious medical decisions regarding their own health.

Please take the responsible course by rejecting SB 277 and avoiding the legal, educational, and health decision-making chaos that would follow from enactment of this legislation.

The letter is signed by over 150 attorneys but appeared to be written by one Robert F. Kennedy, Jr, a famous attorney with a long history of playing “fast and loose” with the science regarding vaccines. Last month, this blog’s good friend, Dorit Rubinstein Reiss, who spends most of her time (as far as I can tell) writing about legal issues with vaccines, replied to Kennedy’s letter with real science, real constitutional law, and real facts.

Continue reading “Constitutionality of mandatory vaccinations – Robert F Kennedy Jr. is wrong”

Medical exemptions for vaccines after California SB277 – article review

medical exemptions

In 2015, California Governor Jerry Brown signed SB277 into law, which eliminated all personal belief exemptions, but still allowed valid medical exemptions, for vaccinations before children enter school. It was considered a public health triumph. Despite a multitude of lawsuits, the law has stood, while impressively increasing the vaccination rate in the state.

California state Sen. Richard J. Pan, M.D., M.P.H., FAAP, led a hard-fought legislative battle against vaccine opponents to pass the law. He had to put up with racist attacks and public confrontations during and after the battle to pass SB277.

Despite the public health importance of mandatory vaccines for children entering school, some California families are utilizing false or questionable medical claims to jump through loopholes to not vaccinate their children. I have been advocating, along with many others, that California needs to close these loopholes, possibly by having public health experts review all medical exemptions before school children are allowed to enter school. This isn’t to force vaccinations on children, but to protect all children from dangerous, sometimes deadly, vaccine-preventable diseases.

In a new study by Salini Mohanty et al., published in Pediatrics, the authors examined the experiences of public health officials and immunization staffs that addressed requests for medical exemptions under SB277. Continue reading “Medical exemptions for vaccines after California SB277 – article review”

Vaccines for Children Program – saving thousands of children’s lives

Vaccines for Children Program

The United States of America is a great country, despite the ignoramus President currently in charge, but one of its contemptible failures is the lack of a comprehensive health care insurance for all citizens. Despite this, there is a ray of shining light that has saved hundreds of thousands of children’s lives – the Vaccines for Children Program, which provides free vaccines to children who otherwise have no access to them.

I was prompted to write this article because when I was reviewing some statistics from the Centers for Disease Control and Prevention that showed a lot of unvaccinated children lacked healthcare insurance. This study showed that 17.2% of unvaccinated children were uninsured compared to 2.8% of all children. Looking at the data from another direction, over 7% of uninsured children were unvaccinated compared to only 1.0% of children on Medicaid and 0.8% of children on private health insurance.

The purpose of this article is to describe the Vaccines for Children Program and to give parents an important resource and information on how to make sure that their children are fully vaccinated against dangerous and deadly diseases. Continue reading “Vaccines for Children Program – saving thousands of children’s lives”

California needs a tougher vaccine mandate – many fraudulent exemptions

vaccine mandate

California lawmakers took major steps in 2015 to push more school-aged children to have all of the required vaccinations necessary to reduce the risk of outbreaks of vaccine-preventable diseases. This vaccine mandate, established by California SB277 sponsored by state Senator, and pediatrician, Dr. Richard Pan, D-Sacramento. The law specifically barred parents from utilizing personal belief exemption as a basis to refuse to have their children vaccinated.

The vaccine mandate had a very quick pay off. In 2017, the state Department of Public Health reported that the vaccine uptake was around 95.6% of kindergartners, the highest seen in California since the 2001-2002 school year. The uptake rate had increased, as of 2017, 5.2 percentage points from 2015, prior to SB277.

Continue reading “California needs a tougher vaccine mandate – many fraudulent exemptions”

Dr Bob Sears medical license on probation resulting from his anti-vaccine views

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 medical license on probation resulting from his anti-vaccine views”

SB277 appeal rejected by court – California’s vaccine mandate stands

sb277 appeal

On 27 June 2018, the remaining plaintiffs in the problematic lawsuit Brown v. Karen Smith (formerly Buck v. Smith) posted a tentative ruling rejecting their SB277 appeal against the dismissal of their case. The decision is a very strong endorsement of SB277 and immunization mandates generally, and if it is adopted as the Court of Appeal’s final ruling – as it likely will be – it will become a strong barrier to future suits against SB277 unless and until the California Supreme Court deviates from it. Continue reading “SB277 appeal rejected by court – California’s vaccine mandate stands”

Mississippi vaccine exemption – no religion allowed

mississippi vaccine exemption

Mississippi is not exactly one of the USA’s highest ranked states for health issues. The state ranks 47th in public health. It ranks 47th in smoking. It ranks 47th in health care quality. At least it’s consistent! Other surveys put Mississippi dead last in healthcare qualitative measurements. Ironically, there’s one health care issue where the state does well – the lack of a Mississippi vaccine exemption for religion has been critical to the state having the highest vaccine uptake rate in the country.

This anomaly has got to be one of the most interesting stories in the vaccine world – the state’s vaccine uptake rates (see Note 1) for MMR (for measles, mumps and rubella), DTaP (for diphtheria, tetanus and whooping cough), and varicella (chickenpox) vaccines exceed 99.4%. This number far is far beyond the level necessary for the herd effect to protect all individuals in an area. All thanks to a lack of a Mississippi vaccine exemption for religious beliefs.

The high vaccine uptake rate breaks the irony meter for one other reason – Mississippi is one of the country’s most religious states. And the fact that the state does not allow religious exemptions for vaccination of young children seems like it is out of character for the state. Mississippi is one of only three states that disallow religious exemptions to vaccines (California and West Virginia being the other two). And the Mississippi vaccine exemption rules rely upon a simple piece of jurisprudence – parental duties trump parental rights.

As a result of this important concept, Mississippi vaccine exemption rules do not allow for a religious exemption. I know, it is difficult to wrap your mind around Mississippi in this story. But let’s find out why the state has led the way on stopping religious exemptions.

Continue reading “Mississippi vaccine exemption – no religion allowed”