Jacobson v Massachusetts

Dumb anti-vaccine bill proposed by Rep. Louie Gohmert in the US House

I have been ignoring this, but I just had to write about the idiotic anti-vaccine legislation that right-wing nutjob Representative Louie Gohmert has introduced to the US House of Representatives on 2 November 2021. It’s like a treasure trove of anti-vaccine tropes and myths.

This anti-vaccine bill has almost a 0% chance of being passed in the current House, but with the Democrats running into a stiff headwind of typical midterm lack of support, crackpot Republicans will probably be running the House of Representatives in 2023, which means this dumb bill might get voted out of the House.

Let’s take a look at the bill, so you can laugh even more about Louie Gohmert.

Vaccine mandate history – USA owes its existence to one

The American vaccine mandate history goes all the way back to the American Revolutionary War when General George Washington ordered smallpox vaccinations for all soldiers in 1777. I bet most people don’t know the history of the vaccine mandate, but I was amazed to read how far back it went in US history.

However, vaccine mandates history includes a lot of other events that tell us that not only have mandates been a part of the fabric of American history, it’s also constitutional. And I’m briefly going to cover it in this article.

University of California flu vaccine order – anti-vaxxers court challenge

This article regarding the University of California flu vaccine executive order, and a subsequent anti-vaccine activist court challenge, was written by Dorit Rubinstein Reiss, Professor of Law at the University of California Hastings College of the Law (San Francisco, CA), who is a frequent contributor to this and many other blogs, providing in-depth, and intellectually stimulating, articles about vaccines, medical issues, social policy, and the law.

Professor Reiss writes extensively in law journals about the social and legal policies of vaccination. Additionally, Reiss is also a member of the Parent Advisory Board of Voices for Vaccines, a parent-led organization that supports and advocates for on-time vaccination and the reduction of vaccine-preventable disease.

An anti-vaccine organization brought a lawsuit against the University of California’s Executive Order “strongly recommending” flu vaccines for most students, faculty, and staff and mandating it for a specific sub-set. With one possible exception that I am less familiar with, but that the University responded strongly to, the complaint’s claims are unfounded and should be dismissed.Read More »University of California flu vaccine order – anti-vaxxers court challenge

Court upholds policy denying religious exemptions to vaccines

In 2014, the Federal District Court of the Eastern District of New York rejected a claim brought by three plaintiff families against various aspects of New York’s school immunization requirements. The decision did not include any legal innovation: it was completely based on well-established precedent that schools can deny religious exemptions. But it offers a chance to reflect on what that precedent is, why it is in place, and what it means for us.

The take-home point? Our immunization jurisprudence gives states substantial leeway to protect the public health via vaccination requirements, specifically, in this context, by allowing states to decide whether, and under what conditions, to exempt students from school immunization requirements. But states have to actually use that power to achieve anything. By leaving the floor to the passionate, if passionately wrong, anti-vaccine minority, we are allowing them to undermine the right of the rest of us to be free from preventable diseases.

In other words, those who vaccinate need to speak up and make it clear to their elected representatives that they want state law to protect their children – and the community – against outbreaks of preventable diseases. The laws will not enact themselves, and our representatives need to know the public wants this protection, that the public does not want high rates of measles cases or other diseases.

Just like the diseases, anti-vaccine legislative successes, such as maintaining religious exemptions, are preventable. And just like the diseases, doing nothing won’t prevent them. Read More »Court upholds policy denying religious exemptions to vaccines

California SB277 lawsuit appeal – bad arguments against vaccines

On September 30, 2017, the team behind the Buck lawsuit posted their appellate brief regarding the California SB277 lawsuit appeal on Facebook. The initial lawsuit was very badly reasoned, and the brief is no better. It does not meet its primary… Read More »California SB277 lawsuit appeal – bad arguments against vaccines

California SB277 lawsuit update – judge rejected Torrey-Love

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.Read More »California SB277 lawsuit update – judge rejected Torrey-Love

Vaccine informed consent – mandates and liability

Several people have asked me whether having school mandates is in tension with the idea of vaccine informed consent . The answer is no. While school mandates have some effect on parental autonomy, the doctrine of informed consent should not be conflated with autonomy.

For a somewhat different reason, imposing sanctions on those who do not vaccinate is also not a violation of informed consent.Read More »Vaccine informed consent – mandates and liability

SB277 lawsuit ruling – suit from A Voice for Choice dismissed by court

To remind readers, in November 2016 a fourth lawsuit attacking California’s SB277, the law that removed the personal belief exemption from school immunization requirements, was filed in a district court in California. On January 13, 2017, after a hearing, the state’s motion to dismiss the lawsuit was granted. This is another SB277 lawsuit ruling that has supported the state of California.

The decision gave leave to amend, because the standard for doing so is very lax – as the decision explains, “[l]eave to amend should be granted unless the district court ‘determines that the pleading could not possibly be cured by the allegation of other facts.’” But the court left very little room for a successful amendment. It’s unknown yet whether plaintiffs would appeal.

Basically, the court followed the extensive jurisprudence in United States courts supporting school immunization laws, based on their role in protecting the public health.

This post starts by explaining more in detail the court’s decision. Then it addresses – shortly, because that’s not the focus of the case now – two issues the court did not address in detail: why the plaintiffs’ argument of unconstitutional conditions is unconvincing and the problems with the plaintiffs’ effort to distinguish previous Supreme Court cases. Read More »SB277 lawsuit ruling – suit from A Voice for Choice dismissed by court

California SB277 vaccine law preliminary injunction hearing

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. Read More »California SB277 vaccine law preliminary injunction hearing

California SB277 lawsuit – updated, but still baseless

Note: this article is an update to the baseless California SB277 lawsuit that was written about previously published on 1 May 2016. This article adds substantial new information on some of the activities surrounding the lawsuit. Stay tuned, as this situation is fluid and new information will be posted as it becomes clear. Professor Reiss and I will update as necessary. I will repost the article whenever there’s a significant update to the lawsuit.

A California SB277 lawsuit was filed by Attorney T. Matthew Phillips in the Los Angeles County Superior Court, Tamara Buck et al v State of California (pdf), or “Buck.” To remind everyone, SB277 is the California law that removed the personal belief exemption to school immunization requirements.

Although the lawsuit commenced for the plaintiffs is in theory, challenging the new statute, the complaint posted online is poorly drafted. Much of the complaint, especially the first section, does not meet the basic pleading standard in California, which requires “a statement of the facts constituting the cause of action, in ordinary and concise language. “ (CCP § 425.10)

As phrased, the complaint does not make valid legal arguments against the new statute. The complaint demands trial by jury when it is elementary law that the relief requested in the complaint would not entitle the plaintiffs to anything but a trial before a judge. The complaint fails to meet the requirement that the attorney’s signature constitutes a certification that “[t]he claims … are warranted by existing law or by a nonfrivolous argument for the extension, modification, or reversal of existing law or the establishment of new law.” (CCP § 128.7(b)(2).)

The complaint also contains gross factual errors, which may violate CCP § 128.7(b)(3), though those errors alone, at this stage in the proceedings, probably would not permanently damn the suit in state law at this initial stage. In assessing initial challenges to a complaint, state courts must assume that the factual claims in the complaint are true (not legal conclusions or polemical oratory), even when they are as far-fetched as the ones in this suit.

If the attorneys for the State of California were to demurrer to this complaint (file a motion requesting the court to dismiss the complaint as lacking sufficient grounds), the plaintiffs would probably be given an opportunity to correct the errors. For that reason, and since this post is already too long, I didn’t provide a detailed critique of the complaint’s shortcomings as a legal document.

Frankly, the people who donated money to this suit deserved better. The opposition to SB 277 consists of a minute fraction of California’s citizens. The opposition is misguided, but most of them are sincere in their beliefs and very, very passionate and dedicated to their cause. Many of them clearly fear vaccines and the new law. I hope the courts will protect the community and children’s health by upholding SB 277 (and to remind everyone, the vaccine-denied children of SB 277 opponents need SB277 as well – they depend on herd immunity to protect them from their parents’ error). But when opponents put their trust in a lawyer, they deserve to have their interests competently and professionally represented. This complaint does not do that.

Of course, the complainants chose the lawyer, and they may have had input into the content of the complaint. They are responsible for that choice. But it is also the lawyer’s responsibility to advise them against making serious mistakes.

It is hard to see much indication that Mr. Phillips gave his clients such advice (unless, of course, advice was offered and rejected). Frankly, the tone of the complaint and the discussion on the complainants’ Facebook page suggests that the content of the complaint was driven by Mr. Phillips or at least supported by him.Read More »California SB277 lawsuit – updated, but still baseless