Federal Court Refuses to Enjoin Anti-Vaxx LawNovember 19, 2016 - 8 minutes read
The Anti-Vaccine Movement that has become dangerously popular in recent years has contributed to an increasing number of unvaccinated children, an issue that not only puts them at risk for disease – but also potentially endangers other persons exposed to them. In response to this threat, California passed a new law in 2015, the California Vaccination Bill (SB 277), that eliminates religion and other personal beliefs as legitimate criteria for exemption from mandatory vaccination of school children. Under this law, children entering the first and seventh grade must provide proof of immunization against measles, mumps, and other diseases; otherwise, they will be barred from attending school and will need to alternatively enroll in a homeschooling program. The new law does, however, have two notable exemptions in place: (i) a medical exemption with documentation from a licensed physician detailing specifically why the child should be allowed to abstain from the required vaccinations and (ii) a “grandfathered” exemption for children who have been enrolled in schools with existing personal belief exemptions already in place.
The law itself was initially drafted in response to the measles outbreak that started in December 2014 at Disneyland and eventually affected 125 people. The bill’s authors cited California’s lenient vaccination rules as a major factor to the outbreak and, as the Center for Disease Control report shows, nearly half of those affected were unvaccinated. The reasoning behind this law was not solely to prevent outbreaks like the one mentioned previously, but to also impose an affirmative duty on parents for the safety of California children.
Current California Vaccination Requirements (as of Nov. 2016)
As outlined by the California Department of Education, students must show proof of proper immunization at two different times (what some have called “checkpoints”) in their early educational careers—once upon entering kindergarten and again when entering the seventh grade. The list of illnesses that students must be immunized against are as follows:
Students entering kindergarten:
- Five (5) doses for: Diphtheria, Pertussis, & Tetanus (DPT)
- Four (4) doses for: Polio
- Two (2) doses for: Measles, Mumps, and Rubella (MMR)
- Three (3) doses for: Hepatitis B
- One (1) dose for: Varicella (chickenpox)
Students entering seventh grade:
- One (1) doses for: Tetanus, reduced Diphtheria, and acellular Pertussis (Tdap)
- Two (2) doses for: Measles, Mumps, and Rubella (MMR)
Recent Attempts to Enjoin the Law Have Failed
In July 2016, a consortium of parents and non-profit organizations sued state officials in a San Diego federal court to enjoin SB 277 from going into effect for not providing a personal belief exemption (PBE). Plaintiffs alleged that SB 277 violated their constitutional rights to free exercise, equal protection, due process and education. The plaintiffs also asserted that the law violated the Individuals with Disabilities in Education Act, the Rehabilitation Act, and the Americans with Disabilities Act. See Whitlow v. State of California, No. 16-cv-1715 (S.D. Cal.) (filed July 1, 2016). Instead of framing their lawsuit as a challenge to the state’s right to vaccinate schoolchildren, the plaintiffs presented the novel theory that the law was unconstitutional because it eliminated the PBE.
After being denied their request for an ex parte temporary restraining order (TRO), the plaintiffs moved for a preliminary injunction against state officials to prevent the law from going into effect until the matter were fully litigated. Plaintiffs alleged that there were 33,000 children statewide who were prohibited from enrollment under the new law.
The court denied the plaintiffs’ request for a preliminary injunction on Aug. 26, 2016, finding that they could not show that they were likely to prevail on the merits. The court emphasized that “although the decision to eliminate the PBE, which had been in existence for decades, raises principled and spirited religious and conscientious objections by genuinely caring parents and concerned citizens, the wisdom of the Legislature’s decision [was] not for [the] Court to decide.” The court also recognized that “society has a compelling interest in fighting the spread of contagious diseases through mandatory vaccination of school-age children.” It then proceeded to find that each of the plaintiffs’ constitutional challenges would likely fail as a matter of law: The First Amendment concerns did not outweigh the State’s interest in public health and safety; the plaintiffs’ equal protection challenge could not overcome rational basis review (i.e., because the law was rationally related to a plausible policy concern); and the law did not implicate substantive due process concerns. The court also found that plaintiffs could not show a likelihood of success on any of their statutory claims.
The plaintiffs appear to have abandoned the case and have filed a notice of dismissal.
Anti-Vaxx Supporters Are Looking for Ways to Bypass the New Law
Unfortunately, many parents who are part of the Anti-Vaccine Movement—a movement that was stirred up by widespread and sensationalized headlines in the media, such as the unfounded claim originating from a doctor in Texas saying that vaccines cause autism—are already scheming of ways to bypass the new law. While some “anti-vaxxer” parents scrambled to secure personal belief exemptions in 2015 before the law went into effect to take advantage of the grandfather clause, other parents have tried to locate schools who simply wouldn’t enforce the new law.
Even more troubling is the news that some parents are trying to locate sympathetic physicians who would be willing to sign medical exemptions on their children’s behalf. While most informed physicians recognize the benefits of vaccinations, there are reports that some physicians are beginning to advertise consultations for exemptions waivers, a service that was rarely advertised before the new law went into effect. While there may be many legitimate reasons for prescribing an exemption, many supporters of the new vaccination law fear that the new law may prompt opportunistic physicians to look askance at legitimate science in favor of sensationalized claims and poorly-research studies, particularly if parents are willing to pay top dollar.
If you or your child have contracted any of the illnesses subject to the vaccination law as a result of possible exposure to a unvaccinated classmate, please contact us so we can evaluate whether you may have potential claims against any culpable parties.