A few of you have suggested something about a class action against a school or someone as medical discrimination if their child’s vaccine exemption application is denied or an existing exemption is revoked. I’ve never heard that kind of thing before, and I doubt it exists in law. But if there’s a case out there in the case books, I’ll take a look at it, but I really doubt there is.
Reason being, it is accepted law across the country that states have the right to condition school attendance on compliance with CDC/AAP/AAFP et al vaccine schedules. I know you folks don’t agree with the vaccine schedules or that your children should be required to be vaccinated to attend school, but it’s the law, and in my view, it’s not going to change just because a relatively few of you don’t like it.
The latest poll showed that 72% of American believe children should be vaccinated, and nowadays, this might be the only thing that 72% of Americans agree on. You can take the position that those 72% are misinformed or unawares, but that kind of consensus emboldens politicians, witness the latest federal effort to cut-off federal funding for states which don’t adequately enforce mandatory vaccination laws. (The bill had been introduced before but died. We’ll see what happens this time, with the measles fevor spreading around the country.)
And don’t ever start about the medical freedom stuff. Californians lost that battle and their freedom to make vaccine related decisions for their kids under SB 277, which removal of rights was affirmed in every single lawsuit challenge.
You might not like it, but there is no constitutional right to a personal belief exemption. There’s no right to attend school unvaccinated (unless your child is covered by a medical exemption or have an IEP). There’s no Nuremberg code right to be free of vaccines/aka medical procedures. None of that stuff exists except in your wishful thinking minds about what a better alternative universe would look like, or in the 17 or so states which, for now, still have a personal belief exemption, or the many states which still have a religious exemption (and, and I think these religious exemptions are going to be targeted for extinction too).
But in the great state of California, you just don’t have those personal freedom rights anymore, and they’re not coming back, at least as long as the Dems have a majority of both houses. And regrettably, it looks like medical exemptions beyond CDC guidelines is also leaving the state soon.
But that’s an aside. The point is that I don’t think medical discrimination is a thing in terms of a legal theory to avoid a mandatory school vaccination law for someone who does not qualify for a medical exemption.
No doubt there will be multiple lawsuits challenging SB 276 if it’s signed into law. I don’t know that any of the legal challenges will succeed, but I’m fairly confident that if one does, if won’t involve medical discrimination, unless of course I’ve missed a case somewhere.
The basis of my opinon is that discrimination is a term thrown around a lot, but it’s never an effective litigation claim unless the plaintiff is a member of what the feds call a “protected class”, like race, religion, ethnicity or your sex, and the discrimination relates to your membership in one of those protected class. Medical fragility is not a protected class. (Could it become one? I doubt it for reasons I won’t go into here and now.)
So, sorry I’m not seeing the medical discrimination theory as a way to successfully challenge SB 276 in general, or as a vehicle to undue the denial or rescission of a medical exemption, or as a basis to force the school to admit an unvaccinated non-medically exempt student.
But if you’ve got any other ideas, post them as a comment and I’ll react either as a reply or in a post. And sorry, I’m too busy now to have private conversations with everyone or anyone who has an idea about this stuff. You’ll see why in a few days and you’ll understand and like it.
Rick Jaffe, Esq.