California SB277 vaccination law – litigation update 2

California SB277 vaccination law

Note: there are two suits against the California SB277 vaccination law. The first one, which we’ll call “Buck” for the main complainant, and the second, “Whitlow“, for the first named plaintiff. The State of California has asked that these two cases be combined and switched to Federal Court, but no decision has been made to combine the two cases. However, both are in Federal Court. 

Professor Dorit Rubinstein Reiss, author of this article, is trying to keep the readers informed with updates and interpretations of current activities. It’s fluid, so the updates are here to keep the reader current. 

Originally, my plan was to just put the updates with each the original articles for each case, but that got unwieldy really fast. Thus, I made a decision to keep each update to the point at hand, hoping that readers will click on the original articles to get the background information. 

Again, Professor Reiss and I will update as necessary. I will repost the article whenever there’s a significant update to the lawsuit.
Continue reading “California SB277 vaccination law – litigation update 2”

California SB277 vaccination law – litigation update 1

California SB277 vaccination law

Note: there are two suits against the California SB277 vaccination law. The first one, which we’ll call “Buck” for the main complainant, and the second, “Whitlow“, for the first named plaintiff. The State of California has asked that these two cases be combined and switched to Federal Court, but no decision has been made to combine the two cases. However, both are in Federal Court. 

Professor Dorit Rubinstein Reiss, author of this article, is trying to keep the readers informed with updates and interpretations of current activities. It’s fluid, so the updates are here to keep the reader current. 

Originally, my plan was to just put the updates with each the original articles for each case, but that got unwieldy really fast. Thus, I made a decision to keep each update to the point at hand, hoping that readers will click on the original articles to get the background information. 

Again, Professor Reiss and I will update as necessary. I will repost the article whenever there’s a significant update to the lawsuit.
Continue reading “California SB277 vaccination law – litigation update 1”

California SB277 lawsuit – updated, but still baseless

California SB277 lawsuit

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. Continue reading “California SB277 lawsuit – updated, but still baseless”

California SB277 lawsuit analysis – anything there?

California SB277 lawsuit analysis

California enacted SB277 on 1 July 2015. This new law removed the “personal belief exemption” (PBE) to vaccines required for school entry.  The law went into effect 1 July 2016.  One group filed a suit against SB277 in California courts in May; I discussed that complaint in previous article. This California SB277 lawsuit analysis is about new litigation against SB277 filed in the state. (Note, there is an update to this case, California SB277 vaccination law – litigation update 1.”)

This second lawsuit, with a different group of plaintiffs, including Ana Whitlow, was filed in a federal district court on 1 July 2016. The suit was brought by several individual plaintiffs and a number of organizational plaintiffs. It contained both state and federal claims, claims on constitutional grounds, and claims that focused on implementation of the act.

As the complaint states, California has had a personal belief exemption from its school immunization requirements since at least the 1960s. The complaint does not note that between 1996-2010, California’s exemption rate increased 380%, from 0.5-2.3%.  The increase continued until at least 2014.

While the number never went over 3%, the exemption rate was not evenly distributed: some areas and some schools had much higher rates of PBEs than others, making them hot spots for outbreaks. In 2010, California experienced a dramatic outbreak of pertussis in which ten babies died. Pertussis has continued to circulate at a higher rate than in the past.  While the pertussis outbreak was partly the fault of a less effective vaccine, studies repeatedly found that areas with high rates of exemptions were more vulnerable to outbreaks.

In 2014, California had the highest rate of measles since 1994, and the famous 2015 measles outbreak caused even higher numbers. This background led the California Legislature to reconsider its immunization policy – already tightened once, in 2012 – and to decide to remove the personal belief exemption.

Understandably, those influenced by anti-vaccine claims were distressed by the new legislation. These parents evidently feel trapped, caught between a reluctance to vaccinate their children and their desire for their children to access educational opportunities, now closed to them by the new law’s provisions. Hence the lawsuit.

This complaint does not suffer from the lack of professionalism and the severe problems of the previous claim, filed by a different attorney in state court.

Nevertheless, while you can never be certain how a court will decide, my best assessment is that the plaintiffs’ constitutional claims have very low chances of success. While some of the statutory issues call for interpretation, they won’t lead to the law being struck down. And several of their implementation claims suffer from serious procedural problems.

Note that the discussion here refers both to the content of the complaint itself and the content of the memorandum submitted in support of the Temporary Restraining Order – both together present the plaintiffs’ arguments.

The complaint also tries to reframe the narrative drawing on anti-vaccine factual claims that are either misleading or downright incorrect. My focus in this post is on the legal claims, but I will touch on a few of the counter-factual assertions. Continue reading “California SB277 lawsuit analysis – anything there?”

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. Continue reading “SB 277 lawsuit – baseless anti-vaccine complaints”

Selective vaccine exemptions – measles and schools

vaccine exemptions

The best way to increase immunization rates and protect a community from outbreak is anything but settled. Serious, thoughtful, provaccine policy scholars and policy makers disagree on whether it’s better to remove all non-medical vaccine exemptions, tighten exemptions, and so forth. A new proposal takes the discussion in a different direction.

In a recent article in Pediatrics, Douglas J. Opel et al. made a case for limiting non-medical exemptions for the measles vaccines only. The authors explained that, “Our goal is simple: to see as many children immunized as possible.”

However, they don’t think removal of nonmedical exemptions is the way to get there. While acknowledging alternatives – making non-medical exemptions harder to get, or enforcing current laws better – their contribution is to offer a new alternative: allowing non-medical exemptions to all vaccines except measles vaccines, and removing non-medical exemptions for those.

This post examines their arguments. For each argument it explains the authors’ claims, the response editorial’s rebuttal, and adds some thoughts. In short, while the proposal is interesting and enriches the debate, its drawbacks, in my view, far outweigh its benefits.

Why do Opel et al. think removing non-medical exemptions from measles vaccines only is a good idea, superior to removing all non-medical exemptions?  Continue reading “Selective vaccine exemptions – measles and schools”

Legal rights of children to vaccination

Legal rights of children to vaccination

We sometimes, in the arguments about vaccines, forget about the legal rights of children to vaccination – yes, this is a right. Dorit Rubinstein Reiss discussed how the child’s rights to good health care –including vaccinations–can take precedence over the wishes of parents (another article by her can be found here).

There is a belief amongst the antivaccination crowd that the parents have the absolute right to manage the healthcare of their children. Except for the fact that this has never been true – courts, as Dr. Reiss discussed, can intervene whenever parental healthcare choices (or lack thereof) harm the child. That’s how it works not only in the USA, but in most of the developed world.

Since children don’t have the ability to make their own healthcare choices, we assume that parents have that ability. But if the parents don’t, or make bad choices like not vaccinating, then courts and government officials have to make those choices. Continue reading “Legal rights of children to vaccination”

Parental and children’s rights – vaccination mandates

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 September 23, 2015, Lauren Stephens filed a “Parental Rights and Responsibilities” initiative with the California Attorney General. This initiative provides a chance to reflect on the tension between parental rights, the rights of a child and the role of the state.

Who is Lauren Stephens? She is involved in the attempt to get a referendum on the ballot regarding SB 277, the bill removing personal belief exemptions to school immunization requirements, sometimes referred to as a vaccination mandate, in California, along with being associated with efforts to recall several representatives who supported the bill, including Senator Richard Pan,

This article proceeds in three parts. First, it sets out the general framework of parental rights and a child’s rights. Second, it explains the initiative – and how it applies, or more probably doesn’t, to the authors’ target, vaccination mandates in SB 277. Third, it explains why the initiative, and similar statutes, are a problematic idea and the potential harm to children from those. Continue reading “Parental and children’s rights – vaccination mandates”

A vile personal attack on GMO scientist Kevin Folta

I have oft stated that those who lack scientific evidence resort to ad hominem personal attacks as their last resort. That’s all they’ve got, so the science deniers have to go double down on their personal attacks, often in the form of putrid hate speech.

I’ve written frequently about the personal attacks from the pseudoscience side, especially in the anti-vaccination cult. They’ve attacked Paul Offit. They’ve used anti-Semitic bigotry to attack Dorit Reiss, one of the writers here. They’ve attacked Senator Richard Pan, co-sponsor of SB 277 which mandates vaccination of children in California, with horrific violent threats and Nazi imagery.

The hate speech of the antivaccine lunacy is legendary, and apparently the anti-GMO version of the anti-science world has been taught well, confirming my suspicion that all anti-science cults get together at their annual meeting in the Bermuda Triangle to share strategies. I’m kidding, of course. Mostly I’m kidding.

As I wrote previously, a PLoS blog was posted that served as an attack piece on GMO scientist Kevin Folta – a respected University of Florida plant genetics researcher. The PLoS post, written by Paul D. Thacker and Charles Seife, attacked Dr. Folta for a whole host of sins, including a claim that he was more or less directing Monsanto’s strategies for dealing with GMO labeling laws.

Within a couple of days, after withering criticism across the science community, PLoS removed the attack piece with a whimpering non-apology apology.

In the meantime, character assassinations against Dr. Folta started.  Here’s one posted in craigslist, which is truly a vile personal attack.

 

craigslist-folta-monsanto

 

This cowardly post refers to Dr. Folta’s mother. According to him, the attack was personally offensive:

[infobox icon=”quote-left”]Tomorrow would be my mother’s birthday, she’d be 69 years old, if she was still alive. She died a few years ago, way too young, and we all still miss her tremendously. [/infobox]

I don’t understand the hate of this coward who, because he really has no science, no knowledge, but plenty of ignorance, decides to attack someone on craigslist, the bastion of scams and rip-offs. And that hatred is based on a retracted, gonzo journalism piece that had all of the research quality of an elementary school newspaper. Oh, sorry, I think I’m insulting all those fine kids who do their best job on elementary school newspapers.

I don’t know Dr. Folta personally, but I do know other scientists who get attacked frequently. David Gorski, using snark and mockery, laughs at the anti-science crowd, entertaining skeptics everywhere. Dorit Rubinstein Reiss tries to ignore it, and sticks to facts. Others know that they win on the science, and write popular books to describe how their science ignorance can harm people.

Of course, I personally just throw back the ad hominem attacks right in their face, because if one has all the evidence, like I do, I have no patience with those nut jobs.

If I could give one tiny piece of advice to Dr. Folta–ignore the ignorant jerks. Or mock them with all the humor you can muster. You are their targets because they think they have something on you, but they don’t. I put up with personal attacks all across the internet. I just laugh, because they are just viruses, and I’m immune.

I often refer to Ernst’s Law which states:

[infobox icon=”quote-left”] If you are researching complementary and alternative medicine (CAM) and you are not hated by the CAM world, you’re not doing it right.[/infobox]

This  Law refers to Edzard Ernst, an academic physician and researcher in the UK who specializes in analyzing and criticizing the claims of complementary and alternative medicine.

Replace “complementary and alternative medicine” with anti-GMO, and we have the Folta Corollary to Ernst’s Law:

[infobox icon=”quote-left”] If you are researching genetically modified organisms (GMO) and you are not hated by the anti-GMO world, you’re not doing it right.[/infobox]

It’s sad that hatred from the anti-science side has to be a badge of honor instead of the evidence and facts, but that’s where we are. We have become a world where science is hated, unless it fits some predetermined conclusion. Sigh.

Note. I identify Dr. Kevin Folta as a “GMO scientist,” a “label” that some people don’t like. My goals in this blog are twofold–first, to frame the discussion between those who use science and those who deny it. And second, to optimize search parameters to make certain people who  do internet searches of complex topics find my articles. People aren’t going to search “University of Florida plant geneticist Kevin Folta emails FOIA request.” They’re going to search “GMO scientist emails.” 



Please help me out by Tweeting out this article or posting it to your favorite Facebook group.

There are two ways you can help support this blog. First, you can use Patreon by clicking on the link below. It allows you to set up a monthly donation, which will go a long way to supporting the Skeptical Raptor
Become a Patron!


Finally, you can also purchase anything on Amazon, and a small portion of each purchase goes to this website. Just click below, and shop for everything.




Illinois vaccine religious exemption – far from perfect

The times are a-changing. States are starting to get tougher with vaccine refusers who are sending their kids to school. Next up a change in Illinois vaccine religious exemption requirements.

It looks like California SB 277, which eliminated non-medical exemptions for vaccines, and mandated vaccinations for most children entering public or private school, has started a positive trend with regards to vaccination requirements. Of course, the drop in vaccination rates and the abuse of exemptions started the trend. Continue reading “Illinois vaccine religious exemption – far from perfect”