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religious exemptions

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

SB277 vaccine law

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:

  1. chances of winning on the merits;
  2. whether there will be irreparable harm to the plaintiffs without the injunction;
  3. 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
  4. 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

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

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

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.”

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

Allowing teenagers to choose HPV vaccines – constitutional

It is morally painful when anti-vaccine sentiment goes so far as to put children at risk of disability, suffering and death. But, that is exactly what a letter written by North Carolina attorney and vaccine critic Alan G. Phillips would do. The problem is that in laying out his case against the enactment of legislation that would protect the health and well being of adolescents in New York State he fails to make one.

The New York assembly is considering A497, a bill that would allow adolescents to receive treatment – including allowing teenagers to choose HPV vaccines for prevention of those infections – against a sexually transmitted disease without their parents’ or guardians’ knowledge or consent. The goal is clearly a laudable one; to insure teenagers don’t leave themselves at risk of sexually transmitted diseases or neglect treating one because they are worried about their parents’ reaction.

Or, sadly, in some instances, because they fear seeking permission to get vaccinated from a parent or family member who may be sexually abusing them. By allowing adolescents to consent to vaccines or other treatment on their own, the bill minimizes the potential for serious harm such as liver cancer (from Hepatitis B), anal cancers or cervical cancer (from HPV infections).

Several other states have passed such laws. They are consistent with long-established laws granting greater decision-making authority to minors with regard to reproductive health and contraception. Phillips disagrees. He sent a letter to NY State legislators arguing that the bill violates federal and state laws and should not be enacted. Not so. Here is why. Contrary to his claims:Read More »Allowing teenagers to choose HPV vaccines – constitutional

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

Read More »Parents, children, loss of custody and immunization

Father sues New York to obtain religious vaccination exemption for son

vax-jesus-doctorAccording 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”

©friendlyatheist.com, 2012

©friendlyatheist.com, 2012

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.

 

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.”

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”