Many people have asked me to comment on a post raising 11 reasons (I think that’s the number) why SB 276 is illegal. I glanced at it quickly. Although I acknowledge and appreciate the effort, most or all of the points and discussion is recyled from arguments raised and rejected in prior court cases.
There were at least four challenges to SB 277 in state and federal courts, all of which were rejected. The lawyers who challenged SB 277 were smart, articulate, wrote very good papers and raised every conceivable issue, and they all lost. Here are three of the SB 277 decisions.
Here is a family law case in which the religious right to oppose mandatory vaccination was rejected. Price v. Price (In re Marriage of Price) (Cal. App., 2019)
Here is a West Virginia federal case which you should read because it involves a physician written medical exemption rejected by school authorities.
(Spoiler alert: The court of appeals upheld the rejection, and rejected the religious argument as well). This case will be cited and discussed in detail by the Attorney General’s Office in every forthcoming SB 276 legal challenge.
If you read these decisions, you will get a better understanding of the law and how judges think (primarily relying on the limbic parts of their brains). Caution, it will depress and/or anger you.
I have addressed the discrimination argument against mandatory vaccination in a prior post. Here it is: http://rickjaffeesq.com/2019/05/24/sorry-cali-vaccine-concerned-but-i-dont-think-medical-discrimination-is-a-valid-basis-to-challenge-sb-276/
The short of it is that it’s a non-starter.
Neither HIPAA nor FERPA provide a private right of action for a state government agencies violation of these federal statutorily created rights.
While it is true that appellate courts sometimes change the law, for reasons which I stated many times, in the vaccine context, it is really an uphill battle.
That being said, SB 276 involves medical exemptions, not personal belief and religious exemptions. To me that means that a successful challenge cannot focus on the usual suspects, i.e., claims like substantive due process, education rights, religious choice, medical freedom, but something different. So, keep up the thinking and interacting about these issues, and maybe one of you will come up with something that might work.
Rick Jaffe, Esq.
Because of the press of other business, this is going to be short and quick.
The new amendment is at least as bad as the prior version, because it does not change the two main operative provisions, 1. All Exemptions are still reviewable and revocable by the health department if they do not comply with the established guidelines, and 2. Physicians who write exemptions beyond these guidelines will be reported to the Medical Board for prosecution.
here is the link to the current marked up bill.
Here are the key takeaway points:
All Exemptions (meaning exemptions under the new law and those given under SB 277) are still reviewable by the state and/or local department of health, but now they are reviewed by physicians or nurses. That is obviously intended to resolve the criticism that the bill did not specifically require physicians to make these important medical decisions. Including nurses, still doesn’t resolve the problem, in my opinion.
Physicians who write exemptions which do not comply with CDC, ACIP, or AAP guidelines will be contacted for additional support. (My view is that the health department will find insufficient support for any exemption inconsistent with the above guidelines)
The health department can revoke a medical exemption that does not meet the above guidelines, but as in the previous version, “family history” can be considered, in the department’s discretion. But as before, don’t expect that to mean anything other than what is in the guidelines.
There is now a more flushed-out appeal process involving a panel of medical doctors. But don’t expect any reversals of revocations of exemptions, because they are all reading from the same hymn book (the Pediatric Infectious Disease Red Book).
There are provisions about what happens to the child with a revoked exemption during the appeals process. There is a grace period, which is about the only good news in this version. It is too early to tell how long that grace period will last, but it ends when the appeal is denied, or possibly 30 days thereafter.
In short and obviously, this version does not resolve the concerns raised by the vaccine aware.
Rick Jaffe, Esq.
The San Francisco City Attorney’s Office has not yet filed an answer to Dr. Stoller’s lawsuit. (It will do so in the next week or two.) And still no separate lawsuit to compel compliance with his administrative subpoena, which is what I was expecting, but I think it may still be coming.
The discovery phase of most civil cases does not start until after the defendant answers the complaint. However, there is a way to start discovery sooner, and that is what I have done. Specifically, I have requested that the City Attorney’s Office provide all communications between his office and Senator’s Pan’s office, the Medical Board, and a certain law professor who seems to think that nuisance lawsuits against the families of unvaccinated children is a good idea. The City Attorney has 30 days to submit a response to our request. Sometimes civil litigation is about as exciting as watching paint dry. Sometimes it’s not.
On the SB 276 Front
Yesterday, a slightly revised version of the bill was dropped. I haven’t had the chance to look it over, but at this point, I wouldn’t expect any major concessions. If there is anything significant, I will follow-up. This is shaping-up to be a party-line issue, which is disappointing.
I keep hearing how much Senator Dr. Pan profits from his vaccine giving, and how he is in the pocket of pharma, but it seems like it is all just unsupported speculation, extrapolation and/or generalization.
Now if there was actual evidence of his personal connection to pharma, and I mean a document which shows that he is doing what he’s doing in order to advance Pharma’s interest, at the expense of his patients or children in general, or a document with his name on it which shows some unsavory action, that would be entirely different.
So, if there is a smoking gun out there, now would be a good time for it to surface. If not, then all the unsupported or generalized chatter about Senator’s Pan’s conflict of interest because he makes money from administering vaccines (as all pediatricians do) is really just feel-good preaching to the choir and will not change the mind of democrats toeing the party line. It also furthers the narrative about vaccine misinformation being spread by opponents of SB 276 and the vaccine concerned community in general. This is fueling social media and commerce sites efforts to limit your access to the internet. Regrettably, that puts you between a rock and a hard place. So it is something to consider.
Rick Jaffe, Esq.
Today will no doubt be gut-wrenching for you, as you watch the hearing and merely state your name and opposition to the latest iteration of SB 276. Regrettably the nature of the hearing does not afford you the opportunity to relate your stories of prior vaccine injuries to your child There will be opportunities to do so, in different contexts, after the bill passes through the Health Committee and the Appropriations Committee (and let’s be realistic, that’s most likely going to happen).
Because this is essentially a new bill (in form anyway), I am told it has to go back to the Senate for reconsideration. So theoretically, there is another opportunity to make the case in opposition to the Senate. But let’s be realistic. SB 276 passed the Senate under the version which removed the physician’s ability to make medical vaccine exemption decisions. The new version, in form at least purports to give the decision back to them. But as I’ve shown in my last post, it really doesn’t.
It seems obvious that the national context right now is against exemptions of any kind, at least in states which have experienced measles outbreaks. Any state which has some kind of PBE or religious exemption is just one outbreak away from legislation removing the exemption, and that’s assuming there is no national movement (some might call it a conspiracy) to remove these exemptions everywhere.
Because of this, and the extremely limited scope of CDC based medical exemptions, I think the whole exemption issue needs to be rethought. In California, it needs an immediate rethink, because it could positively impact the SB 276 debate.
What I have learned from talking to the families of Ken Stoller’s patients (and the families of other broad exemption writing physicians) is that most of you vaccinated one of your children, and that child was seriously and, in many cases, permanently injured. As I pointed out in many prior posts, Congress recognized that vaccines would cause such severe and permanent injury is a small group of children. You are the families of those children, and something needs to be done to protect these kids and your other children.
One of the reasons why people like you are so vilified by the press and the authorities is because they think you are selfishly endangering other people. There are two asserted bases of this belief. First, herd immunity. Second, the children who cannot be vaccinated under CDC guidelines because of age, or being temporarily immunocompromised, most often from cancer chemotherapy. In other words, the greater good and need to sacrifice argument.
That got me thinking. Isn’t one child sacrificed to the greater good enough? Why shouldn’t that be reason enough to get an exemption, one based on humanitarian considerations.
Think “Saving Private Ryan”
In WWII, because so many families were losing multiple sons, the Army developed a rule protecting a family’s other children.
Maybe there should be a humanitarian exemption added to SB 276, for the vaccine injured families.
The natural question would be how does a family prove that the injury was caused by vaccines?
Well I have an answer for that which is grounded in current vaccine law.
They don’t have to. There should be a presumption that the injury was caused by the vaccine if the symptoms or injury occurred in a close temporal proximity. The state would have the burden of proving to an administrative law judge that there was some other specific cause of the injury, based on published studies. That is the way it works currently in the majority of vaccine court cases. So there shouldn’t be a problem with the burden shifting approach. Congress and the he vaccine court and immunity act recognized, that it’s impossible to show a causal connection in any one case. An injury in some circumstances and some proximity is proof enough for the vaccine court, in some illnesses. There is no reason why it should not be the case in an exemption context.
The humanitarian exemption would not protect all children who might suffer an adverse event from a vaccine. Protecting them is going to require defeating SB 276. But if there was a humanitarian exemption added to SB 276, it would protect the most vulnerable families and from what I can tell, these are most of the families who are receiving medical exemptions from the few physicians still writing them.
So how do we get there?
First, a bill has to be drafted. I’ve reached out a bit and I think that can happen.
Second, potential sponsors have to be approached. It would be nice if sponsors could come from both parties in both houses.
And then comes the stories, and that will be your chance to make yourself heard.
If any of you read this in line to speak today, maybe tell the Members that you support a humanitarian exemption for the vaccine injured, and let them know what’s coming.
Rick Jaffe, Esq.
I have to give the guy credit. He’s very good at Legislative tactics, meaning throwing curveballs to the opposition and giving them little time to react.
It’s two days before the hearing and he’s introduced what appears to be a substantially revised bill, which is more complicated and apt to confuse his colleagues in the legislature all the while seeming to address the main points of criticism, thereby taking the wind out the sails of his opposition.
I’ve looked over the new bill carefully and I think I’ve figured out the main points anyway. I’ll go into details and quoting the statute later, but I wanted to get out the big picture quick and dirty:
For current medically exempt: Not much difference from prior versions. Exemptions still have be be submitted and are subject to review and revocation, with some small differences which I’ll discuss later.
The big, at least nominal changes are for new exemptions after the proposed exemption process takes effect on January 1, 2021.
Under prior versions: docs write medical exemptions applications, which are approved or rejected by state public health officials.
Under the new version, docs write “medical exemptions certifications” which seemingly are actual medical exemptions, like under the current law. exemptions.
But here is the rub: The exemptions are reviewable and revocable by a public health official or process, basically anytime a public health official wants to review any exemption. And since the health officials have all the exemptions, I have to believe they will simply target the known few exemption writing physicians which remain.
So practically speaking, the physician writes, let’s call it a conditional exemption, but it seems certain that any exemption which is broader than CDC contraindications, precautions and CDC family history indications (if there is even such a thing) will be rejected. The practical result will be the same as under prior iterations of the bill, no broad based complete, non temporary medical exemptions.
This version really goes after the exemption writing physicians hard, and especially the exemption writing physician’s who are not the child’s PCP.
The bill requires the exemption writing physician to notify the child’s PCP about the exemption.
What do you think a conventional PCP will do after he/she gets that notification? File a complaint with the medical board for fraudulent medical exemption writing.
The new version also provides that once there is an accusation against a physician involving an immunization issue, that physician will no longer be able to right exemptions unless and until he’s cleard of the charges.
There are two other targets painted on the backs of exemption writing physicians.
First, special treatment/negative consideration if the physician writes more than 5 medical exemptions.
Second, each medical exemption certification has to be signed under penalty of perjury. This last requirment will either be meaningless or could end medical exemptions for good, depending on the wording of the certification. I may discuss the differences in a later post.
So to recap: We’ve gone from doctors submitting applications for public health officials’ approval, to physicians writing exemption certifications which are immediately reviewable by public health officals, and will be approved or rejected under basically the same of CDC, APA ACIP guidelines, and heven help the physician who continues to write exemptions, because they will be in a whole world of hurt if they do.
Bottom line: same result, nominally different method to achieve it, and alot nastier for the exemption writing physicians. You really get a sense from this version how much Senator Pan and his allies hate these doctors.
RicK Jaffe, Esq.
Last Friday we held a rally to support Dr. Ken Stoller’s attempt to stop the San Francisco City Attorney’s subpoena for his medical vaccine exempt patient medical records. We started at the San Francisco Chronicle’s office and walked to City Hall. NBC covered the walk by helicopter, but not the event. ABC did tape my press conference (which was more of an informal chat to the crowd). I didn’t see the piece, if it aired. The event was also taped by Frontline USA and is available on its website. Scoll down to June 14th on the website. (Sorry for moving in and out of the picture frame, but I’m a pacer unless my hands are glued to a lectern).
Thanks to Heidi Light, Denise and a few others who helped with the event. It literally wouldn’t have happened without you folks.
Update on the Stoller Case and Media
No response from the City Attorney yet on the case. I’m sure it’s coming and it will be good. You’ll hear about it because no doubt there will be another press release, and all the media will cover it, and further vilify Ken Stoller, with a couple lines from his attorney.
Speaking of press vilifying him, expect a negative story from the San Jose Mercury soon, digital maybe tonight and in the paper tomorrow. They apparently got all or a good portion the San Francisco medical exemptions, deidentified, and the reporter had some questions. We’ll see how much of my answers make it into the story, but it’s a safe assumption that it will be highly critical of him, with the aforedescribed few lines from his attorney.
Update on the SB 276 Assembly Health Committee hearing
It’s still on for Thursday, so be there if you can make it. I’ve heard some concern voiced that it’s not getting enough public dissemination in social media circles. I hope that changes. I know some of the groups are diligently working on arranging for speakers and physicians to be present. Go there and make your voice heard!
Rick Jaffe, Esq.
Yesterday, it was announced that the Assembly Health Committee would hold its hearing on SB 276 on June 20th.
I have two pieces of advice, the first of which is in part self-serving.
I once asked a very busy and successful Hollywood personality/author/entrepreneur how she managed to juggle so many different ventures and activities. She told me that she had a simple rule: She just focuses on “what’s next”, and once the current thing is done, she moves on again to what’s next. Easy for her since she has multiple assistants who lined-up the series of what’s next tasks. Still, I think it applies to the movement to defeat SB 276.
What’s next in the battle is Friday’s action against the San Francisco City Attorney’s effort to subpoena Ken Stoller’s medical records of his vaccine exempt patients. Here is the link to the event page. https://www.facebook.com/events/1580569842074414/
The physical event starts at the San Francisco Chronicle’s Office. The message is that the media does not give fair or adequate coverage to the vaccine debate, and particularly the serious and permanent injuries caused by vaccines, a fact which is accepted by the federal judiciary and the Congress that granted the vaccine manufacturers absolute immunity from suit.
The event then moves by-foot to the San Francisco City Attorney’s Office with the message that the City Attorney withdraw the subpoena, and that physicians have (and should continue to have) the discretion to issue medical vaccine exemptions based on factors broader than CDC contraindications, which is exactly what Ken Stoller is doing, and he is following the law (SB 277) exactly.
We are trying to make this an international event, with people from around the world contacting the City Attorney, by fax, email and phone, expressing their opinions, and sharing stories to help the City Attorney understand that he was given bad information.
It’s hard to predict how large this international communications effort will be, but my feeling is that if it’s big enough, the message will be heard all the way to the Assembly in Sacramento next week, sort of like a stone’s throw rippling in the water. After Friday’s event, ride the wave to Sacramento, for what’s next, after Friday.
And, Stay On-Message
The hearing next week concerns a bill which will remove a physician’s ability to make an important medical decision, and place it in the hands of government employees who have never met or spoken to the patient for whom they are making the decision, and whose records these officials have not reviewed. That should be an affront to all physicians, but especially to the state administrative agency that protects the public, in part by making sure that only physicians with a doctor/patient relationship make such decisions. Sadly, it isn’t, not yet anyway.
Your job is to convince the members of the Health Committee that physicians with a doctor/patient relationship not government employees with no contact with the patients should make these decisions. Short, succinct stories showing the limitations and harm caused by an overly narrow focus on contraindications would be an excellent way to show that for non-health care people who testify.
I’ll repeat what I’ve said before the Senate Health Committee hearing: it’s not about your constitutional right to make personal decisions for your children and exercise those rights to decline all vaccines because of your personal, philosophical or religious beliefs. There used to be a statutory right to do so, but then came SB 277, and that statutory right was eliminated. Efforts to establish a constitutional or other statutory right have all failed. It’s over! If you try to relitigate that rescinded and currently non-existent right, you are undercutting your efforts to defeat SB 276.
Specifically, if this is perceived to be just about your attempt to protect the power of physicians to indirectly effectuate parents’ personal belief exemptions, then your efforts will fail, as they should. So, my advice is to focus on what this is actually about rather than relitigate a prior battle.
That’s the way I see it anyway.
Call and fax the City Attorney on Friday! And if you’re in the neighborhood, stop by and show your support.
Rick Jaffe, Esq.
On Friday June 14, 2019, at 12:00 PM PDT, there will be a showing of international support:
1. Demanding that the San Francisco City Attorney, Dennis Herrera, withdraw the Subpoena he issued against Dr. Ken Stoller to turn over the medical records and sensitive genetic information of his vaccine medical exemption patients. The City Attorney’s actions are an afront to the rights of all patients and must be stopped, or you can expect other government entities to follow in his steps!
2. To stand UNITED in defeating SB 276, which eliminates physician decision making authority to issue medical vaccine exemptions, and places this critical medical decision in the hands of government bureaucrats who have NEVER met or spoken to the child or family. SB 276 passed the California Senate and will soon be before the California Assembly.
The local event will start at the San Francisco Chronicle building, 901 Mission Street, and then proceed to the City Attorney’s Office at 1390 Market Street, (about a mile walk).
During this critical time, we are asking everyone across the world who is concerned by the City Attorney’s actions and bills like SB 276 to voice your opposition to the City Attorney by contacting the City Attorney’s office on June 14th by phone 415-554-3944, fax 415-437-4644, and email firstname.lastname@example.org.
Please be polite and respectful in your communications.
The message can be as short as “Doctors, Not Bureaucrats”, Withdraw the Subpoena”, “Health, Not Politics”, “Protect my medical privacy rights”, “Do Not Open the Door to Medical Privacy Abuse”, “Don’t Target Fragile Children and Families” or anything else (polite and respectful) which strikes your fancy.
You could try to educate the City Attorney with personal stories, or say, and point out that twenty eight out of thirty-eight cases of measles in the Bay Area were adults (Latest state numbers: 40 out of 51 cases are in adults.)
Or emphasize the fact that 38% of the measles cases in the 2015 Disneyland outbreak were from the vaccine. https://doi.org/10.1128/JCM.01879-16. Or state that Governor Brown made it a point to specifically allow broadly written medical exemptions with SB 277.
Maybe with enough feedback, the San Francisco City Attorney will realize that he was the recipient of bad information about the measles problem in the Bay Area, and other misinformation, which I’ve discussed in the Stoller v. Dennis Herrera, Complaint.
(The Complaint is attached to this post http://rickjaffeesq.com/2019/06/04/dr-kenneth-stoller-files-lawsuit-against-the-san-francisco-city-attorneys-subpoena-for-his-patients-medical-records-and-genetic-information/.)
This event is global! It is being supported by many California state organizations, other states’ organizations, and national and international organizations and groups. Here is the link to the Facebook event page. https://www.facebook.com/events/1580569842074414/
Ladies and Gentleman, it is time to go big or go home! Make your voices heard. GET INVOLVED and spread the word to your communities and leaders to join in!
Rick Jaffe, Esq.
Here is a brief summary of Ken Stoller’s lawsuit against the San Francisco City Attorney (SFCA):
The SFCA held a press conference announcing that he had issued an administrative subpoena on Dr. Ken Stoller for his medical records all his patients throughout the state for whom he has written a vaccine medical exemption. The basis of the subpoena is an alleged investigation about whether Dr. Stoller’s exemption writing practices is a public nuisance, presumably in light of the uptick in measles cases in the Bay Area and throughout California.
We think this is a bogus investigation and therefore, we filed a lawsuit to quash the subpoena and asked for other relief.
There are several critical and incontrovertible facts which show the bad faith behind the SFCA’s so-called investigation.
The primary vector or cause of the Bay Area measles outbreak is not medically exempt unvaccinated school children. Rather, it is adults who traveled abroad. Here is the news article which reports that 28 of the 38 Bay Area measles cases were in adults traveling abroad. https://www.sfchronicle.com/health/article/Measles-cases-jump-to-38-in-California-amid-13795838.php.
There is no published data about the 10 children yet. However, extrapolating from the genetic test results of the 2015 Disneyland outbreak which established that almost forty percent of the 194 measles cases were from the vaccine. https://doi.org/10.1128/JCM.01879-16,
and, adding the most conservative numbers of the MMR primary vaccine failure rate of 10% https://www.ncbi.nlm.nih.gov/pubmed/15176719, it is likely that almost half of the 10 measles cases were in children who got it either from the vaccine, or because the vaccine didn’t work on them.
Conclusion: Since the overwhelming majority of the San Franciso Bay Area measles cases are not from the medically vaccine exempt school children, to target them as a potential public nuisance is irrational and suggests that it is just a pretext.
On April 24, 2019, Senator Pan related to his Senate Health Committee the Medical Board’s concern that it was having difficulty obtaining the patient medical records from exemption writing physicians, and complained about the possibility of fake exemption writing going on.
14 days later, on May 8th, the SFCA issued a subpoena for all of Dr. Stoller’s records and other information concerning the medical exemptions he has written throughout the state. (There would be nothing stopping the SFCA from sharing these records with other government agencies.) The SFCA’s public nuisance investigation is based on the same false “fake exemption” narrative Senator Pan has been using as his justification for SB 276.
The SFCA’s attempt to use the public nuisance laws as a basis of investigating a physician’s medical practice and seeking medical records and genetic test information is unprecedented in California or anywhere else in this country. The fact that the initial request is for deidentified records does not mitigate the intrusion into the patients’ rights to control their personal medical information. The SFCA’s office, unlike the Medical Board, is not obligated to protect and not disseminate the information to other government agencies, which given its resources, it can easily reidentify the patients’ identity, and then target the families, which has been suggested by a possible SFCA ally.
The original version of SB 277 proposed by Senator Pan limited vaccine medical exemptions to CDC contraindications. Because of push-back, he was forced to broaden exemptions far beyond the few CDC contraindications. The law which was passed allows for considerations, including without limitation, “family history.” According to Senator Pan, even a “genetic association, with a sibling, cousin, [or] some other relative [could justifiy a finding that] it’s not safe for a vaccine . . .” and “even if that child has not yet suffered harm, then they [the physicians] an exercise their professional judgment to provide an exemption” (Senator Pan’s recorded testimony explaining SB 277 to his fellow Senators)
In SB 276, Senator Pan has changed his mind and now seeks to limit vaccine medical exemptions to the same limited CDC contraindications which he tried and failed to have included in SB 277. His main PR tactic is to promote the false “fake exemption” narrative by relying on the fact that Dr. Stoller and others like him are writing medical exemptions based on these broader factors referenced in SB 277, which Senator Pan himself blessed in order to pass SB 277.
These facts and circumstances suggest that the SFCA’s unprecedented subpoena and public nuisance investigation of Dr. Stoller’s medical practice is part of a campaign to pass SB 276 by advancing the false narrative that there are a few doctors writing false or fake exemptions. The reality is that these doctors are following the law as interpreted by Senator Pan himself. Unhappy that these physicians have taken his words literally and seriously, Senator Pan is now vilifying these physicians to pass what he could not get passed in SB 277. He is now going even further with SB 276 by having state government employees who have never met or spoken to the patient and family make a critical and potentially life-altering medical decision.
The Legislature should reject SB 276, and we hope that the courts will stop the SFCA’s attempt to misuse the public nuisance laws to violate the privacy and autonomy rights of Dr. Stoller’s patients.
Rick Jaffe, Esq.