Based on the transcript of the oral argument/hearing on the preliminary injunction motion in the federal challenge to California SB 277 (the removal of the personal belief exemption), it seems pretty clear that the judge is going to follow the law, and that’s bad news for the vaccine concerned. The judge was polite to the plaintiffs’ counsel and acknowledged the deep and heartfelt beliefs of all those who support the legal challenge, but he is going to deny the motion, as he should, based on the law.   The plaintiffs’ lawyers did an excellent job, but the law and equities were against them, and there just isn’t a good enough record to make it even a close case.

Here is what I think the judge is going to say.

To get a preliminary injunction the plaintiff has the burden to show immediate irreparable injury in the absence of relief, likelihood of success on the merits, and a balance of equities weighing in favor of the granting of an injunction.

One of the biggest impediments to a preliminary injunction here is that the case/motion was filed way too late. The judge keyed into this right at the beginning. SB 277 was passed over a year ago and became effective over six months ago. You can’t get a preliminary injunction if the need for speed is self-inflicted. Plaintiffs’ counsel did his best to explain away the delay, but the facts are the facts. Tellingly, the state’s lawyer asked the judge if he needed to address the delay issue, and the judge said he didn’t.

On the merits, the judge’s questioning of plaintiffs’ counsel made it clear he didn’t think that the state  has a constitutional obligation to provide a religious exemption to vaccination, and then made a classic a fortiori argument, saying that a personal belief exemption (PBE) is just a lesser or watered-down version of a religious exemption. So if the First Amendment doesn’t require a religious exemption to vaccination, it surely doesn’t require a PBE. Then he said that if a state isn’t constitutionally required to give a religious exemption or PBE, how can it be unconstitutional to take the exemption away? This is one of the reasons the judge will say that plaintiffs have not demonstrated a likelihood of success on the merits.

As to the “hybrid rights” argument, It seems like it has been at least heavily criticized and it is probably bad law, because the opinion articulating the hybrid rights theory was apparently withdrawn. It’s never a good thing to cite and rely on a decision which has been withdrawn.  The judge will reject the hybrid rights doctrine as no longer being good law.

The judge gave short shrift to the federal statutory arguments. He’ll find that they are lacking as a matter of law, I suspect.

What about the state constitutional right to education? A federal judge is not going to give a federal injunction based on a state right where there is a serious risk of harm to public health if the injunction is granted. The state’s attorney quoted language from an opinion that the rights of the few don’t justify jeopardizing the health of the many. Of course, the vaccine concerned dispute that this is the case, but the record i.e. the evidence submitted, doesn’t come close to give the judge the comfort he would need to stop the state from implementing this major public health statute. Like I said in a previous post, unless and until the herd immunity theory is refuted or at least seriously questioned (by the scientific community), no judge is going to overturn a legislature that has decided to eliminate a PBE.

So what’s going to happen to the federal case? The transcript gives a hint about that too. The judge mentioned the state’s anticipated motion to dismiss the case. My guess is that the state is in the final stages of preparing the dismissal motion papers, and is just awaiting the judge’s order denying the preliminary injunction so the state can incorporate and toss back the judge’s own words.

My prediction is that the judge will grant the state’s motion to dismiss, with prejudice on all the federal claims, and without prejudice on all the state claims. Translation: he’s going to allow the plaintiffs to refile the state claims in state court.

What about the plaintiffs’ appeal of the denial of the injunction? Not a chance in hell it will be granted. The appellate court will give deference to the self-inflicted delay finding, and the appellate judges will go along with the legal conclusions that there is no federal first amendment right to a PBE, there is no hybrid rights violation (and hybrid rights is not a thing) and that the asserted state constitutional right to education isn’t directly implicated by SB 277 and/or it’s better left to the state courts.

What about the U.S. Supreme Court? There is zero chance the Supreme Court will exercise its discretionary jurisdiction (grant certiorari) on a denial of a preliminary injunction motion on a matter of where public health is arguably protected by the denial of the injunction, especially given federal and state law on the vaccination issue, and the delay in bringing the motion. The Supreme Court doesn’t overturn denials of preliminary injunctions, at least not on a record like the one in this case.

So while I think this case certainly has made the vaccine concerned feel good, and it did a great public service in uncovering what the Santa Barbara school district (and probably others) are planning, (reporting docs who write a lot of medical exemptions), ultimately, the case is a feel good distraction from where the real, important and possibly winnable battle is going to be.

So where is the real battle going to be for the vaccine concerned? At the California Medical and Osteopathic Boards. Some docs are going to write a lot of medical exemptions and I think accusations (board complaints) will be filed against those who write the most exemptions. That’s the place for the defense/offense.

The administrative hearings on the accusations/complaints is where, if done right, the community will have its opportunity to make its case on the two big medical/epidemiological issues; herd immunity and harm from vaccines/schedules. In my view, that’s going to be the mother of all vaccine battles. But that will require more studies/reports/analysis of VAERS data, and the widespread dissemination of the information, through all forms of media and especially documentaries and TV/U Tube type media.   World views are hard to change and take time, but they do change.

 

Rick Jaffe