Anti-vaccine activists have repeatedly claimed that statutes abolishing non-medical exemptions from school vaccine mandates are discriminatory. Some went as far as to compare it to segregation. Courts in California and New York, echoing years of jurisprudence, rejected these claims in recent years in no uncertain claims, making it clear that school mandates are not discriminatory. Continue reading “School vaccine mandates do not illegally discriminate – Prof. Dorit Reiss”
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.
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.
On Monday, the Italian Senate passed a large bill that, among other things, delayed the implementation of the Italian vaccine mandate passed in 2017 until the 2019-2020 school year. This short post explains what this means – and does not mean.
In response to a large measles outbreak in Italy that killed about 1:1000 (around 8 in the past year) and hospitalized thousands, the Italian government then in power passed a law that mandates that children 0-6 be vaccinated with ten vaccines (before that, four were required) before attending daycare or school. It also imposed fines on parents of children 0-16 who were not vaccinated with these vaccines.
In the 2018 election, two anti-establishment parties joined the coalition government. One, the 5 Star Movement, includes people who are openly anti-vaccine. It’s not clear to what extent their anti-vaccine views affected their election results, but among other things, the party promised to roll back the Italian vaccine mandate.
As a first step, the new health minister allowed parents to self-certify vaccines for the 2018-2019 school year – to declare whether or not their children were vaccinated (in a sense, rewarding dishonest anti-vaccine parents over honest ones).
The new Italian Senate law included many things, but the most important issue is that they delayed the implementation of the mandate for the school year 2019-2020. Importantly, the law will not become effective until it passes Italy’s lower house, which is on recess until September 11, 2018, so it will not apply in the school year 2018-2019.
During the current year, the mandate still applies, as does the self-certification decree, probably. But if it becomes law, it will mean that the law is not applicable the following year, giving the new government a chance to try and overturn the mandate completely.
Naturally, medical societies – as well as politicians from other parties – are concerned about the repeal of the Italian vaccine mandate.
The measles outbreak, which was the impetus for the original law, is still going strong. In fact, the CDC has issued a level 1 travel warning for Italy because of this ongoing outbreak.
Several people in Italy have died recently from the measles, and many were hospitalized. Almost all the cases are in the unvaccinated, including those too young to be vaccinated. This is not a great time to roll back the Italian vaccine mandate intended to protect children and contain the outbreak.
Update – 6 September 2018
Italy today reaffirmed that the vaccine mandate applies in 2018-2019 and children 0-6 need to be vaccinated. It also removed the option of self-certification, requiring that parents provide a doctor certificate showing children are vaccinated.
However, the government still announced its intent to revisit the mandate in future.
Update – 9 September 2018
The Italian Parliament relaxed its change of direction – self-certification will be allowed during the current school year. The mandate, however, is still in force, at least until March 2019.
With the support of a local pro-vaccine non-profit made of parents and professional volunteers, two parliament members are proposing an Israel vaccine law to improve immunization rates. This and other proposals are a response to a measles outbreak made up mostly of unvaccinated individuals. The proposal explicitly seeks to improve disease prevention while minimizing the effect on autonomy. It does so with a mix of measures that mirror laws existing in other countries and new ideas.
While the proposal is likely to face criticism from both immunization opponents and those seeking stronger measures, the proposed Israel vaccine law has potential to improve immunization rates in Israel and may be a better fit for Israel’s situation than alternatives. It is clear that a lot of thought went into it. Continue reading “Israel vaccine law proposal – seeking balance to improve vaccination rates”
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.
On Thursday, June 28, 2018, New York State’s highest court, the Court of Appeals, unanimously reinstated New York City’s flu vaccine mandate for certain daycares, which was previously struck down by two lower courts on different grounds. The decision, Garcia v. New York City Department of Health and Mental Hygiene, is mostly about a specific legal issue – the line between when agencies act independently, and when they need legislative direction and direct authority to act.
At its core, it is a question about the limits of bureaucratic power. However, the decision also makes it clear that the New York City Board of Health has extensive power to establish a flu vaccine mandate (and for other vaccines) and to act to prevent infectious diseases. In that sense, it’s good news, upholding the ability of the Board to protect public health. Continue reading “Flu vaccine mandate for day care reinstated by New York court”
In the past year, I offered a course in University of California, Hastings College of Law allowing students to work on immunization-related legal research projects that can help members of the immunization community understand legal issues. I am now ready to present our first publicly available project, for anyone’s use, on immunization mandates case law.
This project, done by two UC Hastings’ students under my guidance, is a summary and overview of litigation on vaccine mandates – school mandates and influenza workplace mandates.
It includes a short memo summarizing the jurisprudence on these topics and a list of cases, federal and state (and if you come across any cases we have missed, please let me know and we will add them).
During an address to Parliament on Tuesday, Édouard Philippe, who serves as prime minister under new liberal president Emmanuel Macron, stated that starting next year, France mandates vaccines for all children. It will mandate vaccines for young children that are unanimously recommended by health authorities starting next year.
Three vaccines, for diphtheria, tetanus and poliomyelitis, are already mandatory in France. Vaccines that would become compulsory under the new law would be pertussis, measles, mumps, and rubella (MMR) , hepatitis B, Haemophilus influenzae bacteria, pneumococcus and meningococcus C.
Phillipe said, in his speech, that “children are still dying of measles. In the homeland of [Louis] Pasteur that is not admissible.” Legendary scientist Pasteur is one of the founders of the field of bacteriology and invented vaccines for anthrax and rabies. Continue reading “France mandates vaccines – saving children from diseases”
A recurrent anti-vaccine slogan that activists use to claim strong immunization mandates should not be passed is “when there’s a risk there must be a choice.” The slogan is wrong generally, and even more wrong in this context. Let’s take a look at it.
Risk and Choices?
Not all risks are equal. And when the risks are clearly bigger on one side than the other states can and do impose requirements that impose the smaller risk while preventing the larger.
For example, each year people are harmed from seatbelts in the United States. But the state mandates them – because they save many more than they harm. The risks are smaller than the benefits.
For example, surgery carries risks. But a court can order life-saving surgery over parental opposition, in appropriate circumstances (e.g., In re Phillip B., 92 Cal. App. 3d 796 (1979) and here). Also, while courts don’t always go this way, a court can order chemotherapy for a child with cancer over parental opposition, although chemotherapy is not risk free.
Antibiotics carry a small risk of an allergic reaction. But a court can legitimately order antibiotics be given to a child with bacterial meningitis. Because the risk on the other side is larger.
So no, there’s not always a choice when there’s a risk. In the case of vaccines, the risks of modern vaccines are very small. The risks of not vaccinating an order of magnitude larger for each vaccine on the schedule, for all children or adults without medical contraindications. The state can require parents to vaccinate their child on that alone. Even more so, since not vaccinating risks not just the child, but others. As said in a Supreme Court case, in words that ring through the decades:
[a parent] cannot claim freedom from compulsory vaccination for the child more than for himself on religious grounds. The right to practice religion freely does not include liberty to expose the community or the child to communicable disease or the latter to ill health or death. (See Prince v. Massachusetts, 321 U.S. 158, 166-69 (1944)).
The above strongly suggests that states can actually require that parents vaccinate their children, period. But in the United States, no state does. States use, instead, the less coercive tool of school immunization requirements.
School immunization requirements without non-medical exemptions tell parents that if they want their child to attend public (or private, in virtually all states) school they need to vaccinate the child. In other words, they give parents a choice between protecting the child from disease and keeping the child at home. It’s not an easy choice for many families that have been scared and misled by anti-vaccine misinformation. Some families may find homeschooling difficult, practically or financially. But it’s not as coercive as criminalizing non-vaccinating or coming to a home with police to vaccinate. It can be a very hard choice, but it is a choice.
Furthermore, a parent that sends an unvaccinated child to school is no longer deciding only for their child. Their child is no longer the only forced to bear the risk of infectious disease. The parent is forcing a risk on other children and their families, as well as on school personnel. First, directly, because the vaccine-deprived, unprotected child is much more likely to get an infectious disease if exposed, and may then transmit it to her peers (or they are too young to vaccinate newborn siblings, as parents pick up their children). Second, less directly – by undermining herd immunity, which reduces the group of protected children and increases that of the susceptible people, non-vaccinating parents are making an outbreak more likely, putting everyone who is not protected at risk. In fact, unvaccinated people in an area with high rates are less at risk than vaccinated people in an area with low rates. Here (pdf) is a list of studies that examine both parts of this issue.
Conclusion about the anti-vaccine slogan
No, when there’s a risk there must not always be a choice. When you’re choosing the bigger risk for your child over the smaller risk, the state doesn’t have to allow it. States do, however: they use school immunization mandates rather than direct coercion. Parents have a choice – though they may not like the alternatives. Hard choices are still a choice. More than that: when a parent is choosing for other children and their families, there’s even less justification to give free reign. By using school immunization mandates the state prevents parents from forcing a risk on other people who didn’t choose it.