Let’s face it, there are strong rumblings that the Dems are lined-up behind SB 276 in the Senate Appropriations Committee and in both houses in general.
That’s bad news for the vaccine concerned whose kids either have or will seek a medical exemption from all childhood vaccines. Basically, under CDC/AAP/AAFP guidelines, there is no such thing as an exemption from all childhood vaccines throughout the duration of childhood, at least not for otherwise healthy kids. And you can forget about the whole fragile child or vaccine fragile child thing. It doesn’t exist in CDC land.
What exists are CDC recognized contraindications (and you can list those on one hand, with a couple fingers left over). The amended bill adds CDC recognized vaccine precautions, some of which may come from vaccine package inserts. Here is the CDC’s list of contraindications and precautions.
https://www.cdc.gov/vaccines/hcp/acip-recs/general-recs/contraindications.pdf But vaccine precautions will not get the vaccine concerned an all-vaccination exemption throughout childhood.
Under the bill’s timetable, Current exemptees will get through the first part of the 2020-2021 school year, but I predict many will have their exemptions rescinded in the first few months of 2021. There may be eight or nine thousand exemptions which will be filed (or more). My guess is that the district health officials, rather than state officials will do the revocations, so the revocation workload will be spread around the state. Supposedly, there will be an internal review/appeal process, presumably by state health officials.
Sounds pretty bleak and it is, but let’s just play this out, get into the weeds of how this is likely to work, and explore possible legal remedies, few and relatively weak though they may be.
But before that, let me answer some questions I’ve received from comments to my posts and via email. (Sorry but I can’t answer most of the emails I get regarding the law and possible legal strategies. I deal with these inquires via my posts.)
1. Can you judicially stop the legislative process from passing SB 276?
That’s a Hard No. Passing laws is the legislators’ job. You can’t use the courts to stop them from doing their jobs just because you (and a small, albeit vocal group of your like-minded friends) don’t agree with a bill, even if you think it’s unconstitutional, un-American, vioates the Nuremberg Code, the Helsinki Doctrine, the Belmont Report, or the Code of Hammurabi.
2. What about the fact that the Chairman of the Appropriations Committee said he didn’t do a financial impact analysis of the bill, but is still voting for it. Can he be impeached?
Another Hard No. Courts don’t interfere with the legislative process and legislators have absolute immunity. Besides, the legislators seem to believe they are dealing with a potential health crises, so cost issues are secondary, or more likely irrelevant from their point of view, as erroneous and benighted as you think that point of view is.
3. Isn’t there a constitutionally protected right to a medical exemption?
One highly regarded vaccine attorney/professor advocate tells me that the 1905 Jacobson case, which started the whole mandatory vaccination jurisprudence, created a constitutional right to a medical exemption. She’s probably right, but I don’t see anything in that decision or other such constitutional decisions about who can make that decision, in part because the exemption issue wasn’t really the heart of the case (called the holding in legal terminology).
4. OK Mr. Lawyer, then is it legal for a state or district public health official who is not a licensed medical doctor to deny or rescind a medical exemption which after all is a very important medical decision?
Excellent question, grasshopper! But it’s complicated.
Surprisingly, the Medical Board of California has officially taken no position on the bill. The California Medical Association supports the bill. So, I’m going with neither have a problem with non-physicians making these important medical decisions. And obviously, the Dems in the legislature think SB 276 is legal, and presumably have been so advised by legislative counsel.
5. But it is constitutional or illegal?
Sorry, but I can’t give a yes or no answer to this. There does not appear to be direct legal precedent. Of course, two states already have that kind of exemption decision-making in place, West Virginia and Mississippi. However, I’m not aware that the issue has been litigated in those two states. So, we’re probably talking about a precedent setting case.
And based on what happened after SB 277’s passage, I suspect that there will be multiple lawsuits challenging SB 276 on a variety of bases. I repeatedly complained about the SB 277 lawsuits and said they would all fail.
(See my prior posts at http://rickjaffeesq.com/category/vaccines/page/4/
I won’t be making the same prediction on SB 276 lawsuits, at least not with the current version. For reasons which I won’t discuss at this time, I think the amended bill goes too far in terms of medical decision-making by non-physicians, and it’s possible that the California courts might agree. After all, as I pointed out in an earlier post, “Hey Numbnuts: there’s a reason they’re called medical exemptions.” See: http://rickjaffeesq.com/2019/03/26/cali-sb-276-moves-to-eliminate-physician-medical-exemptions-but-hey-numb-nuts-theres-a-reason-theyre-called-medical-exemptions/
Ok so there might be some legal challenges to the law, but:
What about challenges to individual denials of exemptions or revocations of existing exemptions? Can aggrieved parents sue?
I’m predicting that lawsuits will be filed against the state and local officials and governmental agencies who deny or rescind exemptions. However, there are some legal and procedural hurdles.
California law allows a legal challenge to a final administrative order of a governmental agency, by way of what is commonly referred to as an administrative mandate action. It happens all the time when medical doctors or other licensed professionals appeal to the Superior Court after a licensing board takes disciplinary action. But of course, this is a new law, so there is obviously no legal precedent for this kind of case. So for now, I am sticking with the general rule that people have a right to appeal a final administrative order (until I find something out to the contrary). Arguably, federal due process jurisprudence would require such a right to appeal, but that might need to be litigated as well, since as, stated, it’s a new law.
There are some practical and financial challenges to these future actions, but nothing insurmountable
Civil lawsuits cost money, even administrative mandate actions, starting with the filing fee, which is usually $450. Then there’s service of process fees, and some other court costs.
Class actions are a possibility, but they have their own logistical headaches. The courts don’t love class actions, and they seem to want the common issues to predominate over each case’s individual issues. A better solution might be a bunch of parents in the same district filing suit suing one district and maybe the state, for the internal review. That way, the filing fee could be spread around. The proof might differ, since each case would be different, but each case would also have some common elements. Or suits could be filed per a specific reason for an exemption, thereby increasing the common elements. Point being, there’s some flexible approaches to lighten the court cost load.
Of course, there are legal fees, but here again they get spread around amonst the plaintiffs (probably technically called petitioners.) Also, I have the general sense that money could be found. These kinds of actions might draw much attention, nationally even. It could be the first time that vaccine exemption cases get litigated, or at least partially judicially reviewed. (I’ll explain what I mean by that in another post.) My sense of the national vaccine concerned community is that the money won’t be a big problem. But then I’ve always been a “build it and they will come” kind of guy. And let’s just say I’ve built things before, so I’m reasonably confident.
Another issue is that normally administrative mandate proceedings are done on a cold record, and on papers, without an evidentiary hearing, just an oral argument for the lawyers, no trial. Based on some of the stories I’ve heard from parents, it would be a very good thing to get the parents before a judge. I think that may be possible even in cases like these. I’ve got some ideas, but there’s no need to get into it now since we’re just seeing how this thing might play out. But for sure, the goal would be get the parents (and maybe a doctor or two) before the judge.
In short, educate the California judiciary, one judge at a time, or a whole lot of them at a time. Some of these cases could find their way into the courts of appeals, and eventually the California Supreme Court might weigh-in.
There could be many, dozens or even hundreds of these cases. Who knows, all with an eye to educating the California judiciary, one judge at a time.
Think of it as a Plan B.
Rick Jaffe, Esq.