Jacobson v Massachusetts

SB 277 lawsuit – baseless anti-vaccine complaints

There have been several updates to the lawsuit, and subsequently to this article. This article has been republished with the updates. Comments for this article have been closed, but you can comment at the updated version.

An anti-SB 277 lawsuit, Tamara Buck v State of California (hereinafter known as “Buck”) was filed by Attorney T. Matthew Phillips in the Los Angeles County Superior Court. 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 »SB 277 lawsuit – baseless anti-vaccine complaints

Freedom to ignore French vaccination program – a court case

Samia and Marc Larère, parents to a three year old and fifteen months old, have decided not to vaccinate them. A criminal charge was brought against them, by the government of France, for not giving their three year old the required vaccines against diphtheria, tetanus and polio according to the French vaccination program.

They were charged under two legal provisions–a provision in the Code of Public Health (le code de la santé publique, art. L.3116-4) that imposes a find of 3750 euros and up to six months in jail for those who do not receive, or allow those under their guardianship to receive, mandatory vaccinations, including parents (“Le refus de se soumettre ou de soumettre ceux sur lesquels on exerce l’autorité parentale ou dont on assure la tutelle aux obligations de vaccination prévues aux articles L. 3111-2, L. 3111-3 et L. 3112-1 ou la volonté d’en entraver l’exécution sont punis de six mois d’emprisonnement et de 3 750 Euros d’amende”).

And a provision in the criminal code that criminalizes neglect of parental duties “to the point of risking the health… of a minor child”, with a fine of 30,000 euros and up to two years in prisons as penalty (article 227-17: “Le fait, par le père ou la mère, de se soustraire, sans motif légitime, à ses obligations légales au point de compromettre la santé, la sécurité, la moralité ou l’éducation de son enfant mineur est puni de deux ans d’emprisonnement et de 30 000 euros d’amende”).

The reason the Larères initially gave for declining to vaccinate their child was that they could not give her only the required vaccines–the only available vaccines, they said, had the required vaccines in combination with others, like Hepatitis B and meningococcal, which are not legally required and they were not willing to give the combination vaccine to their child. Upon further probing, however, the couple admitted they received a vaccine containing only the required vaccines from Sanofi Pasteur, but still refused to vaccinate claiming that the vaccine contained a “toxic product”.

It may have been this vaccine (pdf). It’s unclear which ingredients they were referring to. The product contains a number of ingredients that may be used to raise concern among those unfamiliar with their role in vaccines and the principle that the dose makes the poison. In fact, in the tiny amounts in vaccines (pdf), none of these ingredients is toxic (pdf).Read More »Freedom to ignore French vaccination program – a court case

Vaccines and religious exemptions – recent legal decision

This article is by Dorit Rubinstein Reiss, Professor of Law at the University of California Hastings College of the Law (San Francisco, CA), 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 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.

On October 5, 2015 the Supreme Court of the United States denied cert in Phillips v. New York, a group of three cases that considered issues surrounding vaccines and religious exemptions. This post shortly explains the case and what denying cert means (and does not mean).

Court decides parents’ refusing vaccinations – not “free exercise of religion”

The US District Court for the Northern District of Ohio has ruled (pdf) that a parent’s refusing vaccinations for her children against diseases is not a “free exercise” of religion, and is tantamount to neglect.

In April 2010, the Tuscarawas County (Ohio) Jobs and Family Services (TCJFS) took custody of the children of Charity and Brock Schenker as a result of a domestic violence matter between the parents. TCJFS determined that the children were “neglected and dependent” and worked out case plans for the parents which included psychiatric evaluations, drug testing and supervised visitation of their children. When TCJFS asked about the children’s immunizations, according to Secular News Daily, “Mrs. Schenker claimed she had religious objections to immunizations. The court informed her that the immunizations would be ordered.”

Improving immunization rates – what can the Law do?

Many of us are concerned at the rise of cases of preventable diseases and the role played in that by the decision by a minority of parents not to vaccinate their children. One question is what, if any, effects would legal tool have on improving immunization rates? This article attempts to map out the available tools.

Note that the focus of this article is what the law can do, not what the law should do. The fact that a legal tool is available – i.e. Constitutional, can be enacted or used by the courts – doesn’t automatically mean it should be. I would, in fact, argue that some of the tools discussed here shouldn’t be used in the context of immunization – in most circumstances, forced vaccination and criminal law are inappropriate. But mapping out what’s available seems like a useful first step in the discussion of what the law should do. The goal of this post is to provide a menu of options and a more or less logical way to classify them. My hope is that setting out what’s possible would help us think through what is desirable.

No faith – healthcare workers, vaccines and religion

June Valent started working for Hackettstown Community Hospital, New Jersey, in 2009. In 2010, the hospital adopted a policy requiring workers to be vaccinated against influenza, unless “there [was] a documented medical or religious exemption. For those with an exemption, a declination form must be signed and accompanied with an appropriate note each year.” An employee claiming a religious exemption just has to sign a form and bring a note from a religious leader. Employees using an exemption were required to wear a mask.

To her credit, Ms. Valent was unwilling to pretend her reasons for refusing the vaccine were religious. Less to her credit, she refused to be vaccinated, even though she had no medical reason, and vaccinating would reduce her chances of contracting influenza and transmitting it to her vulnerable patients. She did agree to wear a facemask, as any vaccine exempt worker would.

The hospital fired Ms. Valent for violating the policy. The issue under consideration was whether she was entitled to unemployment benefits. Under New Jersey law, an employer may deny unemployment benefits if the employee engaged in misconduct, which includes violating a reasonable rule of the employer. After somewhat complex proceedings, the Appeal Tribunal of the Board Of Review of the Department Of Labor decided to deny her the benefits because the employer’s requirements were “not unreasonable.”Read More »No faith – healthcare workers, vaccines and religion

Parents, children, loss of custody and immunization

This article uses the very recent decision of the Supreme Court of Oregon in Department of Human Services v. S.M. (pdf) to discuss a specific question: if parents lose custody of their children, can they still refuse immunizations? The Oregon Supreme Court joins others in saying that the answer is no. As discussed, this is the right result.

Loss of custody and immunization is a key issue of parental rights on several levels. Let’s discuss the case in Oregon in detail

Father sues New York to obtain religious vaccination exemption for son

According to the New York Daily News, a Staten Island father has sued the City and State of New York to block his four year old son from being tossed out of school because their parents refuse to vaccinate him:

A Staten Island father is suing the city and the state after his 4-year-old son was booted from pre-K class because of the parents’ objection to vaccines.

The father, identified only as P.R. in the lawsuit over the contentious issue, is a Catholic who had sought a religious exemption to the state law requiring that every child attending a public, private or parochial school must be immunized from 11 communicable diseases.

His son was removed from his public school classroom on Dec. 23 after city Department of Education officials rejected the father’s appeal of an earlier decision. The city concluded the paperwork he submitted “does not substantiate … that you hold genuine and sincere religious beliefs which are contrary to immunization,” according to the suit.

Last month, the city added a requirement that children under 5 who attend preschool or day care must get flu shots.

The boys’ parents filed an affidavit Monday stating they believe that “immunization demonstrates a great lack of faith in the gift of health and the promise of protection that we are given at birth and through baptism we put our child in the hands of the Lord … God wants us to put our faith for disease prevention in him exclusively.Read More »Father sues New York to obtain religious vaccination exemption for son

Court decides parent’s refusal to vaccinate kids is not “free exercise of religion”

For New Year’s Day, I’m republishing the top 10 articles I wrote in 2013. Well, actually top 9, plus 1 from 2012 that just keeps going.

#9. This article was published on 13 May 2013, and has had over 5000 views. A Federal court decided that refusing to vaccinate one’s children is not a constitutionally protected right covered by the First Amendment.

The US District Court for the Northern District of Ohio has ruled (pdf) that a parent’s refusal to vaccinate her children against diseases is not a “free exercise” of religion, and is tantamount to neglect.

As a result of recommendations of court-ordered psychiatric evaluations and positive random drug tests, Mrs. Schenker (who subsequently divorced her husband) visitations were terminated, and TCJFS filed a motion for permanent custody of her children in August 2011. According to the Secular News Daily, “the county laid out as evidence a number of instances in which Schenker did not comply with orders, refused home inspections, and more. But Schenker sued with eight claims, including conspiracy claims and, most significantly, claims that her First Amendment right to free expression of religion was violated.”Read More »Court decides parent’s refusal to vaccinate kids is not “free exercise of religion”

West Virginia occasionally gets it right

West Virginia isn’t frequently lumped together with the more progressive states in the country. But sometimes, there are surprises.

I admit that I keep up with all kinds of news articles dealing with vaccines and vaccinations; especially since the new health care reform tax credit was enacted. I read about new vaccines in development. I read about new vaccine technologies that might prevent autoimmune diseases, like Type 1 diabetes. And I read articles about vaccinations from community newspapers, like this story in a local West Virginia newspaper, where I’m reminded of how advanced West Virginia is, at least with respect to vaccines:

Beginning last year, and continuing every year after, older students entering the seventh and twelfth grade will have shot requirements that must be met before the start of the school year.

Seventh and twelfth grade students will not be allowed to attend school this fall without proof of these immunizations. It is important that once you receive the vaccines and the providers update your immunization record, that the school nurse is sent a copy of the vaccines for their records.

The Mason County Health Department recently sent out a reminder that seventh grade students must show proof of a booster dose of Tdap (tetanus, diphtheria, pertussis) vaccine and one dose of meningococcal/meningitis vaccine. Twelfth grade students also must show proof of a dose of Tdap (ususally obtained at age 11-12 years) plus at least one dose of meningococcal/meningitis vaccine after the age of 16 years. If the student received a meningococcal vaccine prior to the age of 16, a second meningococcal vaccine will be required for the twelfth grade.Read More »West Virginia occasionally gets it right