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Author: Richard Jaffe

To all you Yahoos who think you have a constitutional right to congregate during a pandemic

To all you Yahoos who think you have a constitutional right to congregate during a pandemic

The short of it is that you don’t.

For at least the last few hundred years, the law has recognized the government’s responsibility to protect the public health via its police powers. That job primarily falls to the states under the 10th Amendment, which provides that all powers not expressly granted to the federal government resides in the states.

There are many cases where state and the federal government have been allowed to lock-up people considered dangerous to the health, welfare or safety of the public. I have discussed the Korematsu case, where over 100,000 Japanese Americans were rounded up and interned in camps away from population areas. The fact that half of them were American citizens didn’t help them one bit. The Supreme Court said that was fine.

You all know that in Jacobson, the City of Cambridge was allowed to compel small pox vaccination (sort of, since there was a $5 penalty if you didn’t vaccinate). The Supreme Court also allowed Kansas to civilly detain a sexual predator after the end of the predator’s criminal incarceration, in order to protect the safety of its citizens.

Most of you probably don’t know that there were widespread contagious disease epidemics during colonial times, mainly yellow fever. In 1798, the Pennsylvania governor issued a ban on travel between New York and Philadelphia.

What about my constitutional rights of freedom to associate, worship and my freedom to do whatever I please?

The rub is that all such rights are not absolute and conditional on other competing rights. Constitutional jurisprudence mostly involves the courts weighing competing constitutional rights. Often, these cases involve the government’s ability to restrict individual rights. In the context of a government’s exercise of its police powers to protect the public health and welfare, the government almost always wins, except in the communicable disease litigation, where you can pretty much delete the “almost.”

As I repeatedly say in these posts, the CONSTITUTION IS NOT A SUICIDE PACT and the individual’s right to freedom of movement will always lose to the rights of the public to health and safety.

A corollary is that individuals don’t get to decide what is necessary to protect the public health. In other words, you can do what you want to yourself as long as you are not adversely affecting other people, and you don’t get to decide whether what you are doing adversely affects other people (in public at least).

So, do you have a First Amendment right to attend church during a pandemic where there is a shelter-in place order?

That would be a hard no.

Last week, a New Yorker filed a federal lawsuit arguing just that, namely that the shelter in place order unconstitutionally interfered with his right to worship. He didn’t get a TRO, and he will not get a preliminary injunction from the judge, who ironically, is most likely reviewing the papers from her home, due to the shelter-in place order.

How about a constitutional association right to drink beer with your friends in a public park?

Another hard no.

What judge in her right mind is going to overturn a shelter-in-place order which is supported by the local and statement government and the responsible governmental health authorities and which has hospitalized tens of thousands of people around the world and is killing people at an alarming acceleration?

What about the fact that there is a guy from Stanford and a couple other scientists from impressive universities who say that the shelter-in-place thing is an overreaction/not justified by the data?

Doesn’t matter. Government officials make these decisions. That is the way it works in every country regardless of the system of government. Outside experts can voice their opinions and can have influence on the relevant government public health officials, but that’s about as far as it goes.

How does that change?

I suppose when it becomes so unpalatable to the public that the politicians have to overrule health officials. Trump sent some recent feelers out about reopening the country by Easter, but he was forced to back down due to the push-back from the state and local government authorities. These types of decisions have to be made by consensus.

Is this whole coronavirus hysteria overblown?

I certainly hope it turns out to be overblown, but for now, all responsible government officials think their concern and the restrictions imposed are justified. We will have a better idea in the next few weeks.

A special note to the vaccine concerned

If you are vaccine concerned and/or hate big pharma, there will be some especially tough times for you in the future. The world and your rights are going to look quite different in the post-coronavirus world. Influence makers are talking about things now which a few months ago wouldn’t have been taken seriously.

There are places in the world like Africa where you can’t get in without proof of whatever are the required vaccinations. That will probably expand once there is a coronavirus vaccine, especially if there are multiple waves of the pandemic like there was with the Spanish flu. And speaking of which, the second wave of the Spanish flu was far more deadly than the first. Hopefully that will not be the case with this contagion, but I would bet it is on the minds of the public health officials.

Sadly, this is going to put the whole California medical exemption issue is a whole new context. I suspect many of you already know and fear that. But that is a discussion for another day.

For now, my advice is do not make the problem worse, because the worse it is/becomes, the worse it will be for you down the road.

Follow the recommendations of the authorities, and let’s see what happens.

Rick Jaffe, Esq

How far can the government go to restrict your movement and the first (idiotic) test case is filed

How far can the government go to restrict your movement and the first (idiotic) test case is filed

People want to know how much can the government really restrict their movements. Can the government really stop healthy people from congregating?

I think the short answer to both is yes, at least in the short term, and at least until some court says otherwise, and for reasons I will discuss, I do not see a court overturning a government shelter-in-place order anytime soon. (Ok, maybe that wasn’t such a short answer.)

There are both federal and state law issues and overlapping jurisdictions, theoretically. I say theoretically because as of today, Sunday March 22, 2020, there is no federal quarantine or shelter-in-place order, though the federal government has the power via the CDC and Surgeon General’s office to issue such orders.

Because we are a federal system government, in general, the feds directly control entry into the country and movement between states (via the Commerce clause), while the individual states control movement within the state.

Here is one of the key federal regulations:

Ҥ264. Regulations to control communicable diseases
(a) Promulgation and enforcement by Surgeon General
The Surgeon General, with the approval of the Secretary, is authorized to make and enforce such regulations as in his judgment are necessary to prevent the introduction, transmission, or spread of communicable diseases from foreign countries into the States or possessions, or from one State or possession into any other State or possession. For purposes of carrying out and enforcing such regulations, the Surgeon General may provide for such inspection, fumigation, disinfection, sanitation, pest extermination, destruction of animals or articles found to be so infected or contaminated as to be sources of dangerous infection to human beings, and other measures, as in his judgment may be necessary.

(b) Apprehension, detention, or conditional release of individuals
Regulations prescribed under this section shall not provide for the apprehension, detention, or conditional release of individuals except for the purpose of preventing the introduction, transmission, or spread of such communicable diseases as may be specified from time to time in Executive orders of the President upon the recommendation of the Secretary, in consultation with the Surgeon General
,1.

(c) Application of regulations to persons entering from foreign countries
Except as provided in subsection (d) of this section, regulations prescribed under this section, insofar as they provide for the apprehension, detention, examination, or conditional release of individuals, shall be applicable only to individuals coming into a State or possession from a foreign country or a possession.

(d) Apprehension and examination of persons reasonably believed to be infected
(1) Regulations prescribed under this section may provide for the apprehension and examination of any individual reasonably believed to be infected with a communicable disease in a qualifying stage and (A) to be moving or about to move from a State to another State; or (B) to be a probable source of infection to individuals who, while infected with such disease in a qualifying stage, will be moving from a State to another State. Such regulations may provide that if upon examination any such individual is found to be infected, he may be detained for such time and in such manner as may be reasonably necessary.
For purposes of this subsection, the term “State” includes, in addition to the several States, only the District of Columbia.

(2) For purposes of this subsection, the term “qualifying stage”, with respect to a communicable disease, means that such disease—
(A) is in a communicable stage; or
(B) is in a precommunicable stage, if the disease would be likely to cause a public health emergency if transmitted to other individuals.”
(emphasis added)

https://www.govinfo.gov/content/pkg/USCODE-2011-title42/html/USCODE-2011-title42-chap6A-subchapII-partG-sec264.htm

Here is the URL for the CDC’s “Specific Laws and Regulations Governing the Control of Communicable Diseases” which lays out all the laws and regulations applicable to this kind of situation. It is worth looking at.

https://www.cdc.gov/quarantine/specificlawsregulations.html

But the bottom line is that as of now, there is no federal anything with respect to freedom of movement or quarantine, shelter-in-place, yet, (at least if you are currently in the United States.)

Up until now, the shelter-in-place orders have been by city or area (the first was the Bay area) or more recently, states (California, and the mid-Atlantic states, and Illinois).

AB 262: Does it apply?

The Cali. VC community experienced a high degree of panic in the last fall when the legislature passed AB 262. They feared the new law would be used by the local Cali public health departments to take away their unvaccinated children. My view was that was not the intended purpose of the bill, and that the law was really about conveying information and clarifying the decision-making chain of command in the event of an epidemic, so the VC community did not need to be worried about AB 262 in terms of their unvaccinated medically fragile children.

Well, we are in the beginning stages of a pandemic, so I guess it is time to refocus on AB 262, as it might provide the starting point to the answer in California as to how far the state can go. The answer is pretty damm far.

Here is the operative provision of the new state law:

THE PEOPLE OF THE STATE OF CALIFORNIA DO ENACT AS FOLLOWS:
SECTION 1.
Section 120175.5 is added to the Health and Safety Code, to read:
SECTION 1.
Section 120175.5 is added to the Health and Safety Code, to read:
(a) During an outbreak of a communicable disease, or upon the imminent and proximate threat of a communicable disease outbreak or epidemic that threatens the public’s health, a local health officer shall do both of the following:
***
(b) In addition to the actions required under subdivision (a), the local health officer may issue orders to other governmental entities within the local health officer’s jurisdiction to take any action the local health officer deems necessary to control the spread of the communicable disease.
(emphasis added)

https://leginfo.legislature.ca.gov/faces/billTextClient.xhtml?bill_id=201920200AB262HMmCWYoVpM009liPI

GULP!

Of course, AB 262 does not itself set out enforcement mechanisms, as those are set out by the local health regulations. In my prior post, I linked and explained what the LA Country quarantine rules looked like. I won’t repeat them here, but here is the link to the prior post.

https://rickjaffeesq.com/2019/11/06/into-the-roots-of-the-weeds-of-quarantine-and-isolation-in-los-angeles/

Do people have no legal rights to challenge these rules?

Look, any one can sue any one for anything at any time (as long as the courts are open or accept filings I suppose), and in fact, the first lawsuit challenging a shelter-in-place order was filed a few days ago. As expected, the TRO was denied and the case is apparently set for a preliminary injunction hearing maybe next week. Here is the article upon which I am basing this.

https://m.washingtontimes.com/news/2020/mar/19/new-hampshire-coronavirus-gatherings-ban-prompts-l/?fbclid=IwAR30hU7QgJlyu3vR2slSK1n6pU70Ye4B9P4HTrW-J6

I think this lawsuit is really stupid, given that we are at the beginning of a pandemic where fear and an overwhelming desire for prophylaxis (“flattening the cure”), rather than an actual catastrophic event (like hundreds of thousands of deaths) is driving the narrative and government action.

What do these folks expect a judge – who is no doubt practicing self-distancing – to do? Go against the national sentiment and say the personal rights of a few people to associate are more important than protecting citizens from death from a plague which most experts think could happen? What judge is going to make a decision which could harm tens of thousands of lives?

As I keep saying, the Constitution is not a suicide pact, and the speech, association and religious rights of the few will always lose to the rights of the many to public health and safety. That was true during the SB 277 legal challenges when the issue was a relatively abstract concept of herd immunity, and it is a zillion times more true during an actual “pandemic.”

There is another saying, bad cases make bad law

So, these three idiots (and their idiot attorney) are going to force a judge to deny their preliminary injunction. Hopefully, they will have the belated good sense to walk away. If they don’t, maybe they continue to litigate the case, or maybe they try for an interlocutory appeal (i.e., an appeal before the end of the entire case, and not being a lawyer in that state, I don’t know whether that’s possible under their rules of court and procedure). If they do, then we will have appellate court authority on the issue. My prediction is that an appeal will go against them citing of course Jacobson. But you really don’t need a crystal ball to see that coming.

Look, there may come a time and place where legal challenges will be necessary, but it’s not now, and not on a direct challenge to a shut-in order.

So, if not now, when?

The time will come, hopefully in the next few weeks to a month, when the fear of the worst-case scenario is past or almost past. At that point, if the government restrictions appear to be unnecessarily oppressive to most people and many experts, AND if the enforced self-isolation/ quarantine becomes indefinite and is by fiat of individuals or the few, (even if they are judges), that might be the time for legal action. I say this because judges generally defer to public health officials and the government to ensure public health, and are reluctant to engage in second-guessing, in general, much more so during an epidemic like what faced the City of Cambridge in Jacobson, and even more so during a pandemic.

If there is to be a successful lawsuit, I predict that it will not be based on First Amendment rights to associate, because as indicated, that right will never win over the public’s right to safety and health, especially during a pandemic.

Rather, it will take a stronger right. The strongest right there is (in my opinion anyway) is the intersection between due process and habeas corpus. Meaning, if they start quarantining people indefinitely without a method of judicial redress, that is when I think the courts will show-up and protect people, and not a moment before.

Rick Jaffe, Esq.

Being prepared for Government overreach and medical mandates in times like these

Being prepared for Government overreach and medical mandates in times like these

I received the following email, and I thought it was worth responding to in a post.

“I hope you and yours are well and staying safe from the viral insanity.
I wonder if you have any advice on being prepared for overreach and medical mandates in times like these? I like to have at least a flexible plan.
I just finished reading Suzanne Somers’ “Knockout”, and watching Real Stories’ coverage on Stanislaw Burzynski… my cousin is currently seeing Dr Burzynski after a cancer diagnosis. I am so very grateful for your heroic and tireless efforts. Thank you. Deeply.
And keep it up, PLEASE!
Respectfully,”
(name deleted)

(Note: I helped Suzanne a little with her book “Knockout” which help was graciously acknowledged in her acknowledgements, and I represented Dr. Burzynski for many of his legal travails over the course of several decades.)

Some of my recent Stoller updates have indirectly addressed this issue, but the email I just received gave me the idea and reason to address the issue directly.

First piece of advice: Don’t go crazy, don’t over react and keep your powder dry, for now

Right now, what the federal, state and local authorities are doing in the face of the coronavirus pandemic seems reasonable and prudent, at least right now, albeit these actions are unprecedented, in scale or scope.

Let’s see what happens in a couple weeks. It is possible these current efforts will “flatten the curve”, or as the sceptics will say, that the whole thing was overblown. Many of you think the latter, but we should know in the next few weeks if that’s the case.

Second Piece of Advice: Let the experts and the thought leaders do their jobs

There are already rumblings amongst highly credentialed medical types at some of the most prestigious medical institutions (Stanford, Yale and others) questioning whether we are overreacting at the expense of our economic well-being. But as stated, it is too early to tell, but we will have a better idea in a few weeks, most likely. For sure, repost these opinion pieces from the medical elite published in mainstream media. They are a good counterpoint.

Third Piece of Advice: Be vigilant for efforts to suspend civil rights

Look, the government has a great deal of power in public health crises, like the power to issue shelter-in-place orders, and the power to quarantine. I’ve recently read how the Department of Justice is floating an idea that the chief justices of courts be given the right to indefinitely quarantine individuals, without judicial review. That is where I draw the line. If that actually becomes proposed legislation, that would be a point where massive social activism would be necessary.

Similarly, any other attempt to suspend the rule of law in the current circumstances, and by that, I mean where the current total deaths are a fraction of the annual deaths from the flu. I think that is important because any such attempts to restrict actual civil rights would be based on the fear of what could happen, rather than what is actually happening. On the other hand, if we start having hundreds of thousands of people die of this in a short time, then all bets are off, civil rights wise.

Generalized, the worse it gets, the more the government, (even the Trump administration which appears to be beloved by so many in the VC community) will attempt to further restrict movement and have the behavior of citizens conform to the new norms established by the public health authorities. At some point, enough will be too much, unless as stated, we start having crazy numbers of deaths (compared to annual flu deaths, which people either did not know about or accept).

Fourth piece of advice: Be mindful and vigilant of what comes next, and watch out for the Useful Idiots, (for those who have seen Homeland).

I think our country faces a far greater danger than the actual coronavirus, but I will address that in the next post.

But for now, don’t go crazy, keep your powder dry, wait, but be vigilant.

Rick Jaffe, Esq.

New Hearing date set in Stoller Case

New Hearing date set in Stoller Case

here is the update:

https://gogetfunding.com/blog-single-update/?blogpre=6408571&single=47269

Rick Jaffe, Esq.

Latest Stoller update: judge knocks out 2 witnesses, doesn’t throw out exhibits, yet

Latest Stoller update: judge knocks out 2 witnesses, doesn’t throw out exhibits, yet

here is the latest update

https://gogetfunding.com/blog-single-update/?blogpre=6408571&single=47062

Medical Board Claims that “Evidence of Vaccine Safety and Vaccine Safety Data is Irrelevant” to the Stoller Case

Medical Board Claims that “Evidence of Vaccine Safety and Vaccine Safety Data is Irrelevant” to the Stoller Case

from the gogetfund me update, which I couldn’t post from my web site due to something suspicious.

Under SB 277, a physician is permitted to issue a medical exemption if she determines that immunization “is not considered safe” for the patient. I confess to perhaps naively thinking that we could defend the Board’s case against Dr. Stoller by showing why he did not consider immunization safe in the 10 patients involved in the Medical Board’s accusation against him. To that end, we are offering a great deal of evidence in the form of medical literature, transcripts (like the Simpsonwood transcript originally publicized by Bobby Kennedy) and also recent things like the WHO conference excerpts.

In response to all this evidence, the Board is making an almost unbelievable argument to stop any of this information into evidence:

The board is literally arguing that vaccine safety evidence and data is irrelevant to any legitimate issue in the case.

Really!

The board’s view is that the only issue in the case is whether the medical exemptions issued by Ken complied with ACIP Guidelines. If they didn’t, then the Board claims the case is over, because actual evidence of vaccine safety should not even be admissible since it is not relevant, even though SB 277 specifically states that a physician’s decision for exemption should be based on a determination of immunization safety for the patient. That’s really what the board is saying!

The board doesn’t think there is any medical judgement to make. All a physician has to do is look at the contraindication and precaution list in the ACIP guidelines and act accordingly. But of course, that’s not what SB 277 said, and around and around we go.

Our view is that the language of SB 277 and the integrative medical standard for vaccine exemptions (allowable under Bus.& Prof. Code Section 2234.1) permits the kind of exemptions written by Ken in this case, and also protects other California integrative physicians who have written broader than ACIP guideline based exemptions. If we ultimately win, all such physicians will be protected. If we don’t, I would expect all these other physicians to suffer the same fate as Ken will in this case. So, this is important for the doctors and the entire community.

We will know by Thursday afternoon whether the administrative law judge will disregard the words of SB 277 and agree with the Board. If she does, it will probably be a much shorter hearing that we had hoped, and with a foregone conclusion, at least until we get to the appellate courts.

(Note, administrative law judges in medical board cases only issue a “proposal for decision” with a recommended sanction. The Board has the power to accept, reject or change the ALJ’s proposal. I predict, this case will be ultimately decided by the California Appellate Courts sometime in 2021 (or 2022 if it gets to the Cali. Supreme Court), so buckle-up, and prepare for a long ride!)

The hearing begins on Monday, March 16th.

Stay Tuned for an Update by Friday on whether the judge agrees with the Board and finds that vaccine safety is irrelevant to writing medical exemptions under SB 277. I have no prediction on what she will do, because I am not sure we’re not not living in the Twilight Zone.

We’re still accepting donations! Thanks to all who have given so far.

https://gogetfunding.com/dr-ken-stoller-and-his-medically-vaccine-exempt-patients-need-your-help-again/

Rick Jaffe, Esq.

Stoller Case Share

Stoller Case Share

Tommorow, the ALJ will tell us whether we get to present evidence justifying ten SB 277 medical exemptions that Ken Stoller issued which stated that immunization was not safe for these children. Yes, it is surprising that we might not be able to present evidence on vaccine safety since vaccine safety (or lack thereof) is the actual statutory basis for writing medical exemptions under SB 277. But maybe special rules apply to cases involving vaccines, or maybe it is the times we live in.

The Board’s view is that there is no medical judgement to be made. Physicians just consult the ACIP chart of contraindications and precautions. If the basis isn’t on the chart, there’s no exemption for that shot. Of course, that’s not what the law says (or not what the passed version of the law says), but again, maybe it’s the times we live in.

Part of our case is based on the testimony of the highly regarded physician, James Neuenschwander who gave a moving and very elegant presentation at a recent ACIP meeting. In administrative cases (and civil trials) the parties have to exchange expert reports. The community might be interested in reading Neu’s (as he’s referred to) report. So here it is. It is very, very good.

neureport

Another part of our case which is also being attacked by the board is testimony from Greg Glaser, the general counsel of Physicians for Informed Consent and the most knowledgeable person on California vaccine law in the state. He worked with the group of integrative doctors to assess the impact of SB 277. We feel his information is critical to understand why integrative physicians believe they had the right to write medical exemptions under SB 277 much broader than ACIP guidelines.

Greg’s testimony is about his analysis of the law which he conveyed to Ken and others, which we think is a relevant consideration in this case. If nothing else, it shows the state of confusion of a significant number of California physicians who had the impression from the statute and statements from Senator Pan that exemptions could be written based on family history of even cousins. Apparently, their bad for actually reading the law and taking Senator Pan seriously and literally, and worst of all, for actually using the space in between their ears to decide what’s best for their patients, even if it conflicts with the ACIP chart.

Tomorrow, we will find out whether he will be permitted to testify. There is a legitimate legal issue involved here. Typically, lawyers cannot testify about what U.S. law is or means because the only legal expert in a case is the judge. This is mostly due to possible jury confusion, and to make sure the jury follows the judge’s instructions about the law. But, of course that is not a problem when there is no jury, like in administrative law cases. I am completely confident that the judge will understand that she decides the legal issues in the case, and that she is able to accept Greg’s testimony for the limited purposes for which it is offered, but we’ll see.

Here is Greg’s witness statement. Like Neu’s, it’s quite brilliant and compelling.

https://physiciansforinformedconsent.org/wp-content/uploads/2020/03/Glaser-Letter-for-Dr-Stoller-re-Medical-Board-Proceeding-web.pdf

here is the gogetfunding page for donations:

https://gogetfunding.com/dr-ken-stoller-and-his-medically-vaccine-exempt-patients-need-your-help-again/?single=46997#

More by Friday.

Rick Jaffe, Esq.

“New California school vaccine rules have left nurses, doctors and parents confused” AS WELL THEY SHOULD BE!

“New California school vaccine rules have left nurses, doctors and parents confused” AS WELL THEY SHOULD BE!

A few days ago, the LA Times published an articled titled, “New California school vaccine rules have left nurses, doctors and parents confused”

Here it is:

https://napavalleyregister.com/news/local/new-california-school-vaccine-rules-have-left-nurses-doctors-and/article_e6352b96-51c1-5eeb-94b2-68e5cfebff07.html

It is a good and very informative piece, as they all are when they are written by this journalist.

It’s been suggested that I comment about it, and, because of the basic point, I am getting many requests from parents and some physicians to explain the law, since the only thing everyone seems to agree with is that the new law is confusing. (Actually Senator Pan doesn’t seem to think it is confusing, but…..).

I confess that I also do not completely understand the new law, but before I tell you what I do not know/understand about the law, let me tell you what I do know and am confident about, and I am telling you this because misinformation is being provided which needs to be corrected.

Here is what I know about the law:

If your child is enrolling in a new grade span in the fall 2020, your child needs a 2020 dated ME. A pre-2020 grandfathered ME will not allow your child to be enrolled in a new grade span in the fall of 2020.

I am 100% certain that this is the CDPH’s position, because it has said so.

Here is the language from its FAQ’s

“My child has an existing medical exemption. Do they get to keep it?

Yes, all existing medical exemptions continue to be valid except as explained below.

• Parents of students with existing medical exemptions will need to submit a new exemption when the student begins a new ”grade span.” Grade spans are: birth to preschool, kindergarten (including transitional kindergarten) and grades 1-6, and grades 7-12.”

here is my prior post which discusses this issue. It has the pdf of the whole CDPH explanation.

https://rickjaffeesq.com/2019/09/23/caesar-has-spoken-the-cali-department-of-public-health-provides-answers-to-some-of-your-questions-about-vaccine-medical-exemptions/

Continuing with what I do know: The new law does provide that physicians who have been subject to the most common forms of medical discipline can/will have their ME’s revoked. I know this because that’s what the law says. Here it is, specifically 120372 (d)(4) provides:

“(4) Medical exemptions issued prior to January 1, 2020, shall not be revoked unless the exemption was issued by a physician or surgeon that has been subject to disciplinary action by the Medical Board of California or the Osteopathic Medical Board of California.”

So that is what I do know.

Here is what I don’t know or can’t say for sure under the new law:

1. Are these revocations automatic or does the process of revocations for 2021 (and later) ME forms apply?

Here are some of 120372 (d)(4) immediately preceding and subsequent provisions. You tell me whether families who have grandfathered ME’s from disciplined doctors can avail themselves of the revocation process set forth in the statute.

“(3) (A) The department shall identify those medical exemption forms that do not meet applicable CDC, ACIP, or AAP criteria for appropriate medical exemptions. The department may contact the primary care physician and surgeon or issuing physician and surgeon to request additional information to support the medical exemption.
(B) Notwithstanding subparagraph (A), the department, based on the medical discretion of the clinically trained immunization staff member, may accept a medical exemption that is based on other contraindications or precautions, including consideration of family medical history, if the issuing physician and surgeon provides written documentation to support the medical exemption that is consistent with the relevant standard of care.
(C) A medical exemption that the reviewing immunization department staff member determines to be inappropriate or otherwise invalid under subparagraphs (A) and (B) shall also be reviewed by the State Public Health Officer or a physician and surgeon from the department’s immunization program designated by the State Public Health Officer. Pursuant to this review, the State Public Health Officer or physician and surgeon designee may revoke the medical exemption.
(4) Medical exemptions issued prior to January 1, 2020, shall not be revoked unless the exemption was issued by a physician or surgeon that has been subject to disciplinary action by the Medical Board of California or the Osteopathic Medical Board of California.
(5) The department shall notify the parent or guardian, issuing physician and surgeon, the school or institution, and the local public health officer with jurisdiction over the school or institution of a denial or revocation under this subdivision.
(6) If a medical exemption is revoked pursuant to this subdivision, the child shall continue in attendance. However, within 30 calendar days of the revocation, the child shall commence the immunization schedule required for conditional admittance under Chapter 4 (commencing with Section 6000) of Division 1 of Title 17 of the California Code of Regulations in order to remain in attendance, unless an appeal is filed pursuant to Section 120372.05 within that 30-day time period, in which case the child shall continue in attendance and shall not be required to otherwise comply with immunization requirements unless and until the revocation is upheld on appeal.”

This last highlighted provision strongly suggests to me that the families with Bob Sears’ ME’s should be able to avail themselves of the full process.

To the extent that the current law remains in effect in 2021 (and as I’ll discuss, I have my doubts about this), this should be a major battle ground.

Every single Bob Sears exemption (and the exemptions of any other physician sanctioned in 2020) should be contested. That will probably require some concerted action, perhaps through the entry of a new national player with more resources than the current vaccine concerned groups. More about this another time.

But again, every single grandfathered exemption which the CDPH attempts to revoke under 120372 (d)(4), should be vigorously contested.

Here is something else I do not know:

Under SB 276, so called grandfathered exemptions would only be valid if they were filed with the CDPH. The filing requirement was removed in SB 714. That creates an administrative hole in the law because while grandfathered ME’s from disciplined physicians are revoked or revocable, under the current law, there is no formal mechanism by which grandfathered ME’s are forwarded to the CDPH. So how does that agency find out about those ME’s? Practically speaking, I suppose the schools on an ad hoc basis forward them, but, as indicated in the comments in the LA Times article, schools like systems, process and guidelines, and there are none now.

My guess (or maybe my hope) is practically speaking, most grandfathered exemptions even most written by Bob Sears are safe for this and at least the first part of the next school year. But come the beginning of 2021, all bets are off.

update: comment that parent on Facebook was told their Sears exemption was no longer valid: That may well increases as a result of the LA Times article, but it’s not clear that is legal.

My Prediction
Based on the LA Times article, we know that Senator Pan thinks and wants all of Bob Sears’ ME’s to be revoked now.

There is zero chance he is going to sit out this legislative session. So expect a new bill from him next month. I have no special access or secret knowledge, but I do not how to read the tea leaves and learn from the past, like the creation of the false PR narrative of fraudulent ME’s and how he exploited the Disneyland measles thing.

Coronovires is the perfect panic for him to exploit. So expect his new bill to, in all but in name rescind the SB 714 protections, require all grandfathered ME’s to be filed with the CDPH, and to clean-up/clarify the revocation provision for grandfathered ME’s from disciplined doctors. You also should start preparing for this next round.

Rick Jaffe, Esq.

Coronavirus: The Elephant in the Room the Vaccine Concerned Need To Get in front of

Coronavirus: The Elephant in the Room the Vaccine Concerned Need To Get in front of

In under three weeks, Ken Stoller’s Medical Board case for writing medical exemptions from infectious disease immunization beyond the ACIP guidelines will go to hearing. For sure, if you haven’t donated to his legal defense fund, please do. Here is the link.

https://gogetfunding.com/dr-ken-stoller-and-his-medically-vaccine-exempt-patients-need-your-help-again/

Given all the international fear about the possible pandemic, the quarantines, restrictions on travel and the increase of protective measures around the world and even here in the US, it might be less than an ideal time to try this case. But you play the cards are you dealt. Sure, in a technical sense, coronavirus may be irrelevant to the actual issues in the case, but still…
Because of how I roll, we will confront the issue directly in the case. You’ll have to wait and see how we do it.

Thinking about how we are going to address the issue in the hearing got me thinking about how the VC community is addressing and should address the issue.

I spend some, but not a great deal of time on social media. I have seen discussion from the primary blogger Larry Cook talk about Vitamin C or Liposomal. I think a discussion about possible natural treatments is a good thing. There is a lot of talent out there, and anyone who is raising awareness of inexpensive, natural, harmless possible treatments is doing a public service, as long as they do not minimize the seriousness or risks of the disease, because doing so would play into the rabid provaxxer view that all these “anti vaxxers” are wackos!

So, my advice is to get the medical information out there, but don’t feed into the pro vax “wacko” narrative.

As a related aside, I handeled an FDA felony criminal case a dozen or so years ago defending the inventor of arguably the most popular cold remedy, who subsequently invented a treatment for avian flu during its outbreak. It was a combination of a couple different herbal extracts, like teas, echinacea, and some other stuff, each with literature based proven effects on parts of the viral replication cycle. He did some lab work and tested it out at a prominent Hong Kong Hospital, with apparently amazing results. Unfortunately for him, the epidemic ended in Asia, so he tried to reimport it into the US, and that’s where he got into trouble with the feds, primarily because he called it a bird flu treatment, which is a no-no under the FDA law. He got indicted on multiple felony counts. Eventually he pled out to a misdemeanor with no jail time which isn’t a bad result since the US Attorneys’ office are “felony factories” and they usually don’t do misdemeanors.

I hope some of my more biochemically inclined maverick docs and lab scientists are working along those lines, but if they are, a word of advice from an FDA criminal defense lawyer: don’t call it a cure or treatment!

Back to the matter at hand. Based on TV reports over the past few days, the Coronavirus is becoming the dominant news story, and once it gets to the US ( and per CDC “it’s not if, but when”) the story and disruptions it will cause will become an ever-present and all encompassing force in American life for some undetermined time.

The thought leaders in the vaccine concerned movement need to get ahead of this. The wacko fringe may start promoting conspiracy theories. Some luney-tune is going to claim it’s a big pharma hoax to promote current or future vaccines. I hope the community will shut down that crap when it arises (as I’m sure it will).

I actually see this as an opportunity for the community to show itself as thoughtful, responsible and flexibly adapting to life’s circumstances. When you have a fire on a ship in the middle of the ocean, you don’t have a debate on the environmental impact of the fire retardant and you don’t argue about whether it is really is a fire, or just the fire retardant industry’s ploy to sell more product, because if you do, and don’t act, then the fire will end the debate, and natural selection ultimatley gets rid of the terminally stupid and clueless.

So, to the thought leaders, you may not have the hard deadline I have to get in front of this (and in truth, I’ve already had to deal with this problem in other matters, but I can’t talk about that now). However, it behooves you all to get ahead of this and turn it into the opportunity to both be part of the solution and help advance the process of educating the public.

For what it’s worth.

Rick Jaffe, Esq.