Browsed by
Tag: SB 277

Finally, Some Intelligent Action by the Cali Anti SB 277 Community!

Finally, Some Intelligent Action by the Cali Anti SB 277 Community!

I’ve been a vocal opponent of all of the anti-SB 277 constitutional lawsuits. The most recent one was a federal lawsuit filed in mid-November, 2016, in Los Angeles, and dismissed by the federal district court in January 2017. I think all of these lawsuit were (and will be if more are filed) a terrific waste of time and money. As I have repeatedly said, as long as the medical consensus is that 1. Vaccines are safe and 2. Herd immunity (from vaccines) is a thing, no court will ever overturn a mandatory vaccination law or a law eliminating a PBE (personal belief exemption) or a religious exemption.

(For my reasoning, see my posts in the SB 277 section of my web site. Here is the link.
http://rickjaffeesq.com/category/sb-277/ )

Whatever satisfactory resolution the VC (vaccine concerned) community is going to achieve, I am certain it won’t come from the judiciary, at least so long as 1. and 2 above are the “accepted” scientific facts. The constitution isn’t a suicide pact, and the few do not have the right to infect the many, and that’s what judges are thinking when you file these lawsuits because of the “accepted” science. The vaccine concerned have to figure out a more productive use of their limited time and resources.

(Hint: change the accepted science or change-out the folks who decide what’s accepted, and that’s not as far-fetched as it would have seemed prior to November 8, 2016.)

While I doubt my message got through to anyone of authority in the movement, I am happy to report that I’ve seen some signs of intelligence in the VC community, post SB 277. No answers yet, but at least there is a promising gathering of some of the folks who could possibly come-up with solutions, both on the medical/research level and on the political action level.

I’m talking about the upcoming vaccine safety conference organized by a new group called Physicians for Informed Consent (PIC). As suggested by the name, this is a group of physicians who at the very least are skeptical of the current vaccine schedule and have some safety concerns. Many of the group’s members are pediatricians who have to deal with vaccine issues every day. The conference is this Sunday, May 12, 2017 at the Costa Mesa Hilton.

Here is the Facebook link to the event. Registration technically closes Friday.
https://www.facebook.com/events/1834537363451194/

The conference has two parts. The morning session is only open to physicians and will consist of a panel discussion with some of the leading vaccine concerned physicians explaining their views on when medical exemptions are appropriately given. That will be followed by a legal panel discussing the legal issues in giving medical exemptions in California. I will be speaking at that panel, and I can tell you that some discussions might be controversial, because at least one of the speakers is blunt and has been highly critical of past VC actions, (but he shall remain nameless).

If you are a California physician and write exemptions or thinking about doing so, you should be at the meeting, period.

Starting at 11:00, the meeting is open to the public. There will be various topics about vaccine safety from some well-known vaccine researchers. A couple of the docs from the morning panel will give their insights to the public about the general requirements California physicians will or should employ in evaluating when a school vaccine exemption should be given. The group’s general counsel will also give his insights about the legal challenges facing the docs and the VC community.

My guess is that this information will help the vaccine concerned public understand what’s required of them to obtain an exemption.

One of the most interesting presentations is likely to be from the founder of MADD (mothers against Drunk Drivers). That’s a pretty impressive grass-roots movement which has had a tremendous positive influence in the country and legislation. My view is that it’s going to take a MADD-like movement to effectuate any real change in the medical, public policy and legislative landscape regarding the safety of vaccines, and to take on Pharma and the medical/public health establishment. So I hope the thought and movement leaders listen carefully to what she has to say. It was a pretty nifty, out-of-the-box idea to invite her. Kudos to Shira Miller and her crew for bringing her to the VC community.

On the merits, I have a strong feeling that there’s going to be presented some new information, at least to the docs, about a powerful new explanation of the connection between vaccines and neurological related conditions, including autism, based on some doctors’ (Diane Powell) and thought leaders (JD Handley) connecting the international research dots. Think microglia/pruning and the brain’s immune system. Who knows, maybe even an attorney might talk about the implication of these concepts as a game changer which cuts across the scientific/policy/legislative and even the medical administrative landscape.

Stay tuned and more after the conference!

Rick Jaffe, Esq.
www.rickjaffe.com

Cali. Medical Board makes it official: Docs who write non- standard-of-care medical exemptions will be prosecuted, (but maybe not)

Cali. Medical Board makes it official: Docs who write non- standard-of-care medical exemptions will be prosecuted, (but maybe not)

vaccineimage
The elimination of the PBE (personal belief exemption) via SB 277 has put a lot of pressure on vaccine concerned California pediatricians to write medical exemptions for the children of vaccine concerned parents. The recently dismissed San Diego federal anti-SB 277 lawsuit showed that at least one school board is collecting information about the docs who write these medical exemptions and will forward the information to the medical board for prosecution.

Based on some non-binding legislative history, and some personal discussions with legislators, the vaccine concerned community was hoping that the medical board could not or would not assert jurisdiction over docs who write these exemptions. That seemed completely unrealistic to me based on my experience dealing with medical boards. These guys just don’t give up jurisdiction on their licensees’ conduct.

In case you had any doubts, the board has made it official in its recent executive summary. Here is its position which couldn’t be clearer:
“The passage of two legislative bills increased the Board’s authority to investigate allegations of misconduct. * * *
In addition, SB 277 (Pan and Allen, Chapter 35) effective January 1, 2016, deleted the personal belief exemption from the existing immunization requirements. The Board will investigate any complaints in which a physician may not be following the standard of care in these two new areas.”
(From page 6: http://www.mbc.ca.gov/Publications/Annual_Reports/annual_report_2015-2016.pdf)

So there you have it. It’s basically open season on docs who write full vaccine exemptions, because according the pediatrician groups and the CDC, there are almost no medically justifiable reasons to excuse a child from all childhood vaccinations.

So what can be done about it? In the very short term, nothing really. Many pediatricians will probably be wary of writing medical exemptions.

Still, here are a couple hints. If your child had some prior vaccinations and had a serious adverse event associated with (not necessarily provably caused by) a prior vaccine, you may be able to obtain an exemption from the right doc, which decision would be literature supported. Make sure you bring documentary proof of the prior adverse event(s). The doc will need it for his records. Prior auto immune problems in the child or family members? That might help as well. Again, bring documentation. Help your pediatrician make the case and help him document the exemption. That’s the best protection for you and your doc. Admittedly, right now there is no medical board authority indicating that this would justify or exculpate a doc who writes an exemption on this basis, but I hope to change that within the next six months, in connection with my work on the current medical board case I’m working on, so stay tuned.

Next, an obvious mid-term solution is to amend SB 277 by making medical exemption decisions unreviewable by the medical board. As stated, there is some legislative history indicating that SB 277 was not intended to have the medical board second-guess the decisions of docs who write these medical exemptions. Realistically, passing such an amendment is a long-shot, but it’s time, energy and money better spent that filing another frivolous SB 277 constitutional challenge. (By the way, whatever happened to the dismissed San Diego federal lawsuit which was supposed to be refiled October 1st?) My suggestion: start working your legislators to get some feedback on whether it’s a possibility. If it is, that’s where the community should put its efforts and money.

Finally, there’s a soon-to-be publicly announced group of vaccine concerned docs, which is open to the public. It’s called Physicians for Informed Consent.

Check out their Facebook page at https://www.facebook.com/search/top/?q=physicians%20for%20informed%20consent.

Here is their web site. www.physiciansforinformedconsent.org

These folks have done more good for the vaccine concerned community even before they’ve officially started than all the lawsuits combined, but I can’t talk about that now. Go to their Facebook page, sign up and support them. They have and will continue to make a difference.

Rick Jaffe, Esq.
Rickjaffeesquire@gmail.com

Self-Dismissal of SB 277 Lawsuit: Smartest thing they’ve done so far: Is it a one-of or are they on a roll?

Self-Dismissal of SB 277 Lawsuit: Smartest thing they’ve done so far: Is it a one-of or are they on a roll?

 

I’ve been very skeptical of the federal SB 277 lawsuit and preliminary injunction motion, for technical legal and substantive reasons. (See my prior posts:

http://rickjaffeesq.com/2016/06/10/cali-anti-vaxer-friends-heres-probably-unwanted-possibly-useful-advice/

http://rickjaffeesq.com/2016/06/14/190/

http://rickjaffeesq.com/2016/08/21/time-get-real-sb-277-real-battle-will/

http://rickjaffeesq.com/2016/08/26/shocker-sb-277-preliminary-injunction-motion-denied/)

Well the powers-that-be finally did something smart; they voluntarily dismissed the case before the state had a chance to file a dismissal motion and before the judge terminated the case for good, or in legal parlance, “with prejudice.”

So what’s next? Based on Tim Bolen’s recent post, http://bolenreport.com/sb-277-lawsuit-case-dismissed/#more-4880, it looks like the case will be refiled with factual allegations on the two points which I (and any other experienced federal civil litigator) would deem necessary to try to allege a valid claim, namely, challenging herd immunity, and the alleged severe harm and danger of vaccines to significant numbers of recipients. (Which is not to say there is any realistic chance of success, but whatever chance there is has to involve these two factual contentions.)

Looking into my crystal ball, here is what’s going to happen, (or what’s not going to happen.)

  1. Think you’re getting rid of Judge Sabraw by refiling, think again.

Now that the federal lawsuit has been dismissed, it’s over, meaning, someone has to file a new lawsuit, pay another filing fee, serve the defendants again, and the rest. Normally, judges are assigned on a random basis, and there are a number of federal judges in the southern district, so one might think the odds favor getting another judge on the new case.

However, if the new case is filed on behalf of some of the same plaintiffs, and the defendants will be the same, and the same lawyers, then it’s a related case, and probably should be so designated in the initial filing, but even if not, the state will probably point that out right quick. Related cases go to the judge hearing or who heard the other case. Call it judicial efficiency or not allowing judge shopping.

So, prediction number 1 is that if the case is filed again in the southern district, it will end up with the same judge, and we already know what he thinks about whether there is any set of circumstances in which the beliefs or rights of the few can supersede the rights and health of the many.

Hint: The only way to make sure the same judge won’t hear the new case is to file in another California district court. There are three others, and Santa Barbara isn’t in the Southern District. Sure, you might be accused of forum shopping, and all the judges read the same law books, so it probably won’t matter, but if the goal is to get a different judge, a different district is the way to go.

  1. Preliminary Injunction? fugetaboutit! That ship has sailed.

The dismissed lawsuit was filed before the school year started in the first year SB 277 effected kids. So there was at least an arguable urgency, which is a prerequisite for the extraordinary remedy of a preliminary injunction. However, by the time the new case is filed (supposedly by October 1st) vaccination decisions for this school year have already been made, thereby eliminating the urgency of an expedited decision.  Any other arguable urgency would just be a pretext and won’t fly.  And even the impending school year didn’t work because the urgency was self-inflicted or a tactical decision (which is what the judge said).

Further, the whole “preserve the status quo ante” crap in the prior injunction is a joke and a non-starter in a public health case. Why? Justified or not, SB 277 was a legislative response to one very well publicized disease outbreak (and there were supposedly others).  No judge in his right mind is going to “preserve the status quo ante” by stopping a law specifically designed to prevent future disease outbreaks, not even if Jesus Christ shows up and argues for it.

Anyone who doesn’t understand this is either too close to the vaccine issue or has spent too much time doing field research on the medical marijuana issue.

And let’s not forget that a judge has already denied a preliminary injunction motion involving all or some of the same plaintiffs, defendants and lawyers. The idea that the same or even a different judge is going to reach a different outcome because of some new alleged facts in a complaint is, let’s just say, naïve.

  1. How about a Jury Trial? Not a Chance

Bypassing all the abstruse jurisprudence, there is no 7th Amendment jury trial right when you’re trying to overturn a statute. Those decisions are made by a federal district judge.

  1. So what’s Going to Happen in the New Lawsuit(s)

I get that the vaccine concerned community has a strongly held belief against vaccines, that they are toxic, hurt thousands of people and that vaccines haven’t been proven effective by scientific standards of controlled clinical trials. I also get that they think that the herd immunity concept is unproven superstition.  I am neither an anti vaxer nor pro all vaccines. Also,  I’m not a vaccine lawyer,  and there is no point for a guy like me wading into the scientific dispute or pseudo dispute since I’m just an outsider looking into this controversy. But I have spent my entire professional career litigating cutting-edge and novel legal/medical issues. In that (depressingly long) time, I’ve been thrown out of some of the finest federal courts, and have even prevailed once in a while. So on the litigation part, I’ve very confident about my ability to understand and predict litigation outcomes.

My crystal ball tells me that no federal (or state) judge is going to stop SB 277 because of any complaint or declaration (sworn statement)  supporting the complaint that may be filed. To think otherwise, in my opinion, is based on a non-objective/uncritical view of the case law, and/or a misunderstanding of the limited role of judges in matters of public health, even in the face of an alleged scientific controversy and a minority view of the overall danger of vaccination, even if that minority view eventually turns out to be true and accepted.

Further, none of these cases will ever see a bench trial and all will be dismissed under Federal Rule 12 b.

Bottom line, I do not believe that there is any viable direct legal challenge to SB 277. Indirect, maybe, where the two concepts are successfully challenged in a court case, but relief in such a suit won’t be the judicial overturning of the law. That will only come when there is some recognition/validation of the vaccine concerned’s position on the two key issues of herd immunity and vaccine harm/schedule.

In law, there are just some alleged wrongs or government actions which don’t have a judicial remedy. For the last hundred years, unfettered freedom from vaccination has not been recognized by the judiciary and will not be so recognized given the current view of vaccine science/safety, however wrong the VC community thinks the mainstream consensus view is.

So guys, file away. It’s sometimes important to empower a community even if the boost/feeling is short-lived. The vaccine concerned will certainly feel good about the new filings, and will feel that their heartfelt beliefs are being considered, and that could be a good thing and the lawyers filing these cases will be viewed as heros, (for awhile anyway).

But at the end of the day, the result will be the same as in all of the other cases. And there will be more of the same kind of explanations/excuses or different explanations/excuses, or fulminations about how we live in a police state and there will be more fragmentation of the VC community as they point fingers at eachother assessing blame for failed strategy. But none of those explanations or heartfelt beliefs or fingerpointing is going to change the “established” scientific facts or the law, until there is a change in the worldview, but I’ve said that before.

Rick Jaffe

Shocker! SB 277 Preliminary Injunction Motion Denied

Shocker! SB 277 Preliminary Injunction Motion Denied

In an 18 page decision, Judge Sabraw denied the vaccine concerned plaintiffs’ motion for a preliminary injunction. Big surprise! He also set out the grounds why he will dismiss the case, after the defendants file their motion to dismiss, which I would guess would be in the next week or two.

Unfortunately, the law has been clear for a hundred years, up to an including last year’s New York case. States are not required to have a personal belief exemption or a religious exemption to vaccines because the rights of the few are subservient to the the health of the many. That’s just established law. Until the vaccine concerned present a case to a court that 1. herd immunity is wrong and 2. vaccination damage to kids is horrible, understated or underreported and that the programs are massively unsafe and do not prevent disease, no judge is going to overturn a state’s decision to remove PBE’s or religious exemptions.  The injunction motion did not have any real record or evidence to support such a finding, so it was doomed or dead on arrival

Maybe the vaccine concerned will never accept the decision, the appeal decision or the law, but it doesn’t matter. This lawsuit is going to be dismissed, before the end of the year, the appeal will be denied, just like in Phillips v. New York (which is pretty similiar to this case and suffers from the same legal and record defects) and the  Supreme Court will not grant certiorari, just like in Phillips.

Deal with it,  and maybe it’s time for a Plan B.

Here is the Judge’s decision. He’s right on the money, based on the law, and the record before him.

denialinjunction

 

Rick jaffe

 

Manly Advice for my Cali. Anti-Vaxer Friends

Manly Advice for my Cali. Anti-Vaxer Friends

Ok, some of you were put-off by the “anti-vaxer” moniker.  Some suggested you’re all health freedom fighters.  I’m not willing to bestow that laudatory title until I see a more cohesive, rational and convincing case made, though I’m sure I am a minority of one on this in the health freedom community.

How about the designator “vaccine-concerned” or “VC” for short? It’s neutral, accurately descriptive, and this is my post.  From now on, I am going to refer to you as “vaccine-concerned” or “VC.” I mean to include both ends of the VC spectrum, and here are the ends of the spectrum as I see it.

At one end are those who want vaccination criminalized because it harms everyone who is vaccinated. It includes people who deny that vaccines have had any benefit to mankind, and that it’s all a pharma scheme to suck money from the masses. It also includes the personal freedom people who think the government has no right to force anyone to get any vaccine or impose any consequences on the unvaccinated, regardless of the perceived consequences that the ignorant majority and conventional scientists think will be caused by the unvaccinated.

At the other end of the spectrum are the folks who are concerned that there might be too many vaccines for kids right now, who accept some preservative-free vaccines for some serious diseases, unless there are sound medical contraindications. It also includes those who will compromise their personal freedom to get inoculations before traveling to some foreign countries where diseases survive which have been long extinct in this country. This end of the spectrum also includes those who understand that the VC, who have strongly-held and metaphysically true beliefs, have to acknowledge and work within the system in which they currently represent a minority view. Indeed, these folks even understand that their views are considered by the mainstream to be anti-science and fringe. (See the just published article in the New Yorker entitled “The Mistrust of Science” by mainstream surgeon, author (and medical establishment tool), Atul Gawande.

http://www.newyorker.com/news/news-desk/the-mistrust-of-science?mbid=nl_TNY%20Template%20-%20With%20Photo%20(51)&CNDID=25050591&spMailingID=9044825&spUserID=MTA5MjQwMzU2NDMzS0&spJobID=941025627&spReportId=OTQxMDI1NjI3S0

(I have to admit that his biography of cancer, The Emperor of All Maladies was breathtaking. Haven’t read his new book The Gene, but I will. I don’t recommend any of his writings to the VC. To borrow a phrase from an email I got about the prior post, it will just make your blood boil.)

Now that we are past the nomenclature, I’d like to address a criticism most colorfully phrased by a chiro who said that I should “grow a pair,” tell the docs how to solve the problem and give the VC parents what they need. Well, I’ve taken that criticism and the metaphor to heart, and I’ve come up with a simple solution which I think satisfies the “grow a pair” admonition.

There is a loosely formed, nascent California group of vaccine-concerned physicians. They approached me to file a direct legal challenge to SB 277. I declined. The July 1st deadline is fast approaching. I’m told that VC parents don’t know what to do, and desperately need a solution.  So you want a simple and manly solution.  Here it is:  Each member of the VC group of physicians should write medical exemptions for any VC parent who comes to them.  If the physician group wants, I’m sure Tim Bolen will post the physicians’ names and contact information to make it easier for the VC parents.

I point out that the California law does not require that the exemption be signed by a board certified pediatrician.

Any California licensed physician can write the exemption, and the decision is not challengeable by the school.

VC California licensed docs have the absolute power to grant the wishes of the VC community.

Of course, it would be best if there was a doctor/patient relationship. All the statute requires is:

“a written statement by a licensed physician to the effect that the physical condition of the child is such, or medical circumstances relating to the child are such, that immunization is not considered safe, indicating the specific nature and probable duration of the medical condition or circumstances, including, but not limited to, family medical history, for which the physician does not recommend immunization, that child shall be exempt . . . .” (Emphasis added by me)

So what’s the problem?

Many VC physicians have told me that vaccines are dangerous or there are too many of them given over too short a time. These physicians are convinced that the legitimate and best scientific evidence does not support vaccination, or at least the current vaccination schedule. If so, then all you are doing is writing a letter that the child should not receive medically unnecessary or unproven preventive treatment.

In addition, VC advocates, including docs, have informed me that vaccines and/or the California vaccine mandate violates the Helsinki Declaration and the Nuremburg Code. If so, it surely violates the Hippocratic Oath because vaccines harm children, or so I am informed, and you all know the “first do no harm” thing. If forced vaccination violates these universal medical/ethical rules, which are morally superior to US law, and if the science overwhelmingly supports the rejection of vaccination (or even if science just does not support its use), as I am repeatedly told by the passionate VC community, then VC physicians have professional duty and a moral obligation to sign a medical exemption for every child of VC parents.

I would go even further; refusing to write exemption letters makes the VC physician complicit in what I am told is the greatest medical fraud in history, namely the perpetuation of the international vaccination hoax.  

Writing exemption letters for all-comers would be a complete and perfect solution for the California VC community. But what about the physicians writing the letters?

Sure it’s possible that the schools and medical board might not appreciate the courage and principled views of the letter writers in helping the VC exercise their Constitutional rights, but since the real science is on their side, it should all work-out in the end. As long as the medical evidence is on your side and the experts are qualified and authoritative, any competent board attorney should be able to convince the fact finder (initially an administrative law judge) of the correctness and righteousness of the VC position.  So you have nothing to worry about.

Besides, I’m told there are many California VC licensed physicians. So even if a few are lost to board sanction, the VC community could have its needs met for many years, or until the lawsuit(s) directly challenging the constitutionally of SB277 law is/are resolved in the VC’s favor, which I have been assured will happen.

 SO BALLS TO THE WALLS!  It’s time for the VC doctors to step-up and lead the fight.

I’m ready. Who’s with me?

Richard Jaffe, Esq.

(Now with a pair)

rickjaffeesquire@gmail.com

To my Cali. anti-vaxer friends: here’s some probably unwanted but possibly useful advice

To my Cali. anti-vaxer friends: here’s some probably unwanted but possibly useful advice

So in California come July 1st, there will no vaccine exemptions based on personal belief. However, there still will be a medical exemption, such as it is. My understanding is that pediatrics/public health recognizes some contraindications for specific vaccines, but very, very few (if any) contraindications for not giving a child any vaccine anytime.  I’ve heard that at least one prominent CAM healthcare attorney is advising his California CAM physician clients not to write medical exemption letters for parents who have a fear of or personal belief against vaccination. That might be prudent advice, and certainly no lawyer will get into trouble for giving it.  Obviously, this is all very bad news for anti-vaxers.

I will probably weigh-in on what I think are the medically supported justifications for the exemption another time and another forum.  For now, I’d like to talk to my anti-vaxer friends and colleagues, including those who for tactical/PR reasons characterize their views as in support of “informed consent” about the “dangers of vaccination”. You’re not going to like it, but to paraphrase Ziggy Martin in “Drive,” who’s gonna tell you when you’re too late and aren’t so great   In terms of where we are and the constitutional arguments being tossed around, well, you’re too late, wrong, and less lyrically, the imprecise hyperbolic language is not helping you focus on what may be realistically achievable.

First, the inaccurate hyperbole: California anti-vaxers claim that their kids and child care professionals are being forced by the government to be vaccinated.  Not true.  I’m from Texas, and in Texas we know what forced vaccination looks like. A couple years ago, the Texas legislature tried to force all young girls to get the HPV vaccine. The measure ultimately failed because of the public outcry against forced vaccination. California is not forcing anyone to get vaccinated. Rather, it imposes consequences (albeit draconian) for the unvaccinated; for kids, no public or private school; for adults, you can’t teach kids or be a child caregiver. That’s a big difference constitutionally and legally in general.  But in addition, by mis-framing the issue, you may be missing some realistic partial, medium-term solutions, as I’ll explain in a moment.

A lawsuit has been filed challenging the law eliminating the personal exemption. However, this lawsuit will be dismissed. Vaccination has already been upheld in California, twice before if I’m not mistaken, and the law is well within the government’s police power to protect the general health and welfare, such as it is thought to be (and I’ll get back to that also).

The new argument floating around is that the law violates anti-vaxers’ and their children’s state constitutional right to education. The courts will reject this argument. What most people don’t realize about constitutional rights is that they are not absolute, especially when they have to be weighed against competing rights and interests.  And that would apply to even the most fundamental rights.  Take the rights to life and liberty, which are as core as it gets. These rights don’t prevent the government from incarcerating or even executing criminals, and the rights don’t stop the government from drafting soldiers in times of war.

We all have First Amendment rights, but they don’t extend to shouting fire in a theater (unless of course there is a fire in the theater.) The most recent high visibility case involving weighing competing rights is that idiot Alabama clerk who refused to sign marriage licenses for gay couples because it supposedly interfered with her First Amendment rights of freedom of religion. Apart from the fact her position violated the basic constitutional premise of separation of church and state, whatever individual freedom of religion right she has does not allow her to violate the equal protection rights of gay couples. The court had no difficulty subordinating her individual religious beliefs/rights to the equal protection rights of the many.

(And to anticipate, the courts will hold that the law does not violate the equal protection rights of the anti-vaxers. To make a long story short, because this is a matter of public health and because anti-vaxers are not a federally “protected class” like race, gender, and now sexual preference, the courts will apply what’s called a rational relationship test in adjudging an equal protection claim against the law. This is the kiss-of-death to a constitutional challenge. Under a rational relationship test, the state only has to show or hypothesize that there is some possible, arguable, theoretical, potential rational basis to the law, and the courts bend-over backwards to find that a law has a rational basis.)

But getting back to the weighing of competing rights, it comes-up all the time in criminal cases. First Amendment freedom of press rights and the right of the public to know versus the due process rights of the accused. The privacy of a witness versus the sixth amendment’s confrontation clause right which requires that a defendant be given an opportunity to confront his/her accusers. In short, it is very common for judges to weigh competing rights and interests.

The California right to education is just of one of many rights and interests which the state grants and protects.  Sorry, but the reality is that an overwhelming majority of legislators and California parents believe that the current vaccination program is necessary to protect the health of children, and that allowing parents not to vaccinate their children because of personal beliefs and having unvaccinated kids in public and private schools makes their children less safe.   

There is no doubt in my mind that the new law is a valid exercise of that power, even though it affects the anti- vaxers’ education rights under the California constitution.  In the current and whatever future case there is on this issue, the courts will hold that the education rights of the anti-vaxers are subordinate to the public health and safety of the majority.   

The anti-vaxer comeback is that the majority is wrong and it’s all a conspiracy between government and big pharma; that vaccines have never been proven to be effective, don’t confer any public health benefit, or the benefit is outweighed by the risk and dangers of vaccines, that the diseases they are alleged to prevent are not as deadly as the harm vaccinations cause, and all the rest.

I confess to not knowing who is right; the majority or the anti-vaxers. But in terms of public policy and direct legal challenges, it doesn’t matter. That’s right, it doesn’t matter whether vaccination in the future is determined to be more dangerous than beneficial.  The only thing that matters right now in terms of a direct legal challenge is that there is a consensus of scientific opinion that vaccination programs are safe and highly effective, at least a consensus of conventional medicine, which, by the way, is in practicality, the same thing.

So what to do?

The first and obvious thing to do is try to change the consensus. That’s a hard process and change takes time, but it does happen, if the science supports the change. Thanks to people like Gary Taubes, David Perlmutter, Nina Teicholz, and others, the low fat, high carb diet world view is on the way out.  To that end, the new anti-vax documentary by Wakefield is a very good start. However, someone with mainstream credibility is going to have to take it to the next step. For reasons which I don’t think are justified and ironic to the extreme, Wakefield is viewed as the poster-boy for scientific fraud by the mainstream.   (The irony comes from the fact that the main accusation against him is undisclosed conflict of interest because his research was funded by an interested plaintiffs’ law firm. There is a whole literature on how Pharma has bought and paid for scientific research, and I’d bet that the biggest Wakefield medical detractors do the same thing he did, just on a much bigger scale.)

So more public broadcast and film attention is a must. But there is more, like the substance, technical part. Pretty much everything I’ve read coming from the anti-vaxers is overly emotional and not well-reasoned. It’s a big, complicated, multi-factored, nuanced problem. I think there needs to be sophisticated comprehensive analysis by people who have more than just an MD or PhD after their names. I’d like to see a panel of experts with actual experience in pediatrics, immunology, epidemiology, public health, biostatisticians, methodology, medical epistemology and heuristics get together and figure this out, do a meta-analysis what supports vaccination and put together a product which could stand-up to the mainstream and its talking heads. That kind of endeavor would take some serious funding, and you anti-vaxers are a fragmented community, so there would be financial challenges.  

Now let’s circle back to legal, mindful of why a direct constitutional challenge won’t work, and what to do about it.  As stated, the problem is the competing and superior interests of the majority’s rights. So how do we get around that? Take the majority out of the equation and maybe find a better constitutional vehicle. Right now, your only option is individual home school. I contend that anti-vaxers have a right to associate with other anti-vaxers and so do their kids, and that right to associate extends to education. Right now, the law essentially outlaws group home schooling; i.e., a private schools of similarly minded folks. I believe that law might be subject to a constitutional challenge under the first amendment freedom to associate. This would require a test case of a group, private, home school. Once it hits the radar screen, the state would likely order its closure. That would give the school and the parents standing.

Let’s assume by the time the case goes through discovery, the blue ribbon panel of actual experts with unassailable credentials finds that vaccination…. whatever it finds that’s supportive of the anti vaxer position (assuming that such is the conclusion). I think those opinions and experts have a place in the case. Now we have a trial the likes of which we haven’t seen since the Scopes monkey trial, and wouldn’t that be pretty nifty.

 Of course, that doesn’t get the anti-vaxer kids as a group back in regular schools. Instead, they are segregated.  Some anti-vaxers might think this solution makes them modern day lepers. Maybe it does, but vaccination decisions have consequences, eventually, and in California eventually is now.

Some committed anti-vaxers might find a doc willing to take the chance and write the medical exemption based on some medical pretext, but that’s a temporary, short term solution. Once the schools start seeing the same names show-up on these exemptions, they’ll notify the medical board which will take action and possibly quick action like summary suspension if there is a systematic effort to undermine public health (according to the board’s world view).   So there needs to be realistic and meaningful solutions which accommodate anti-vaxers’ beliefs, but recognize the state of consensus medical knowledge, as hard as that might be for some of my friends to swallow, at least until the world view changes. 

 I’m just saying.   

 

Richard Jaffe, Esq.

rickjaffeesquire@gmail.com