This case is a decision point. It will set policy nationwide for a long time to come on two basic issues – “who owns our children,” and “what can be forced on them?”
Opinion by Consumer Advocate Tim Bolen
Attached to this article is a transcript of the Oral Arguments held in the Preliminary Injunction Hearing August 12th, 2016. You can read every word that was said. But, before you do I am going to give you some background, some definitions, and a roadmap so you can follow what was being said. Why? These are very technical legal arguments I am going to attempt to make simple, and common-sense.
This case is NOT about vaccines – although those ultra-dangerous Made-in-China-death-pus-tubes are the problem the case seems to revolve around.
Some background…
The real point of the case is simple – what are the limits that the State can do claiming “The Greater Good?” If today they can force dangerous vaccines into our children, tomorrow they can drag our nine-year-olds into sexual slavery, or grind them up into food for cattle for that same claim of “The Greater Good.”
I’m not joking.
It gets really scary when you think that a grinning psychopath/sociopath(?) like California Senator Dicky Pan gets to decide what, exactly, defines “The Greater Good” and who it applies to.
What the Plaintiff’s attorneys are saying to the Court is simple “Where’s the line Judge?” Legal precedent says that the State, under a Strict Scrutiny review, must follow specific rules to make laws. Our side is saying that the State of California did not follow the rules with this law.
Before these issues can be argued in court they have to be broken down into legal components. And, that’s where our attorneys are taking the case.
Where we are going…
To the US Supreme Court..
To get where the Plaintiff is going in the argument presented both generally in the SB 277 case, and specifically in the Preliminary Injunction Hearing, we need to have a clear understanding of two legal concepts: “Status Quo Ante” and “Strict Scrutiny, ” and one doctrine called “Hybrid Rights.”
In short, the two concepts, used together say “Your honor we need to stay right where we were before SB 277 (status quo ante) while we carefully scrutinize SB 277’s Constitutionality using the Strict Scrutiny guidelines.…”
What is “status quo ante?” It is a legal term defined as “the previously existing state of affairs.”
What is “Strict Scrutiny?” Strict scrutiny is a form of judicial review that courts use to determine the constitutionality of certain laws. To pass strict scrutiny, the legislature must have passed the law to further a “compelling governmental interest,” and must have narrowly tailored the law to achieve that interest.
What are “hybrid rights“ – A hybrid rights claim involves a challenge that the government is simultaneously violating one’s right to the free exercise of religion and some other “constitutional protection[].” The strength of this other constitutional protection, known as the companion claim, determines whether a hybrid rights claim will be successful.
The Plaintiffs are basically saying “Throw this crappy SB 277 law out the window Judge. It just plain sucks… “
Just below is the exact language used in the court documents..
“Plaintiffs respectfully request that the Court grant their Motion and preserve the status quo ante while the parties litigate this case. California’s children deserve better than to be barred from school and subjected to forced permanent quarantine, isolation, humiliation, prejudice, and emotional distress because of an unnecessary, draconian and discriminatory law that flies in the face of the State’s compelling interest in educating children.”
The First Amendment Argument…
I am going to oversimplify what I am about to show you. Whenever I do this my attorney friends cringe a little, but legal things need to be explained to NORMAL people in terms they can relate to.
One of the primary arguments of the case against SB 277 is that, in essence, SB 277 denies First Amendment protected religious exemptions in more than one way. Courts have held that there is little, or no difference between religious and personal belief exemptions, and that States cannot legislate against religion – period. Throughout the Oral Argument, several court case names are used – each of which set a standard of review, in some way, for the issues involved in the SB 277 case.
I won’t go into any detail of those – for we will all, except attorneys, tune out, and start mumbling, as our eyes cross that part of the pages. When you read through the transcript just scan over those references, and get back to the general ideas presented.
What is VERY IMPORTANT to our side is that the Judge agrees to use the concept of “Strict Scrutiny“ rather than “Rational Scrutiny” to examine SB 277 for Constitutionality.
Why do we want that?
Because the State Cannot pass the “Strict Scrutiny“ test…
Not a chance…
Why?
“To pass strict scrutiny, the law or policy must satisfy three tests:
It must be justified by a compelling governmental interest. While the Courts have never brightly defined how to determine if an interest is compelling, the concept generally refers to something necessary or crucial, as opposed to something merely preferred. Examples include national security, preserving the lives of a large number of individuals, and not violating explicit constitutional protections.
The law or policy must be narrowly tailored to achieve that goal or interest. If the government action encompasses too much (overbroad) or fails to address essential aspects of the compelling interest, then the rule is not considered narrowly tailored.
The law or policy must be the least restrictive means for achieving that interest: there must not be a less restrictive way to effectively achieve the compelling government interest. The test will be met even if there is another method that is equally the least restrictive. Some legal scholars consider this “least restrictive means” requirement part of being narrowly tailored, but the Court generally evaluates it separately.
The State simply cannot meet this standard with SB 277.
So, where’s that transcript of the Oral Arguments from August 12th, 2016?
Click here to go read it. Our side’s arguments were, and are SUPERB. Try not to fall asleep through the government’s presentation. Laugh when they say they are punishing parents.
You’ll see…
Stay tuned…
Opinion by Consumer Advocate Tim Bolen
A good read! Our side was articulate. The state sounded ill-prepared.
Ask and you shall receive! Thank you for this very informative and helpful report on the SB 277 injunction Mr. Bolen! I wonder if it is appropriate to address the violation of parental rights in this case as well due to the fact that they are forcing parents to comply with mandatory vaccination laws under duress.
Laura – the point is to just plain kill the law FIRST…
Thanks so much. I honestly thought our side (plaintiffs) was better. I was pleasantly surprised after seeing some people feeling disheartened after the hearing.
I definitely feel better about this case after reading the transcript. The plaintiffs sound prepared & well versed in the laws pertaining to this case. The state reminds me of Dicky Pan when he speaks. The sound ill prepared talk in circles & didn’t defend their position well. Fingers crossed & saying a prayer that the Judge will #BeBrave & the #Truth will prevail
Dr. Andrew Wakefield makes a great case that we must argument that vaccines are neither safe nor effective and present the science to back this up. The Supreme Court has already said vaccines are unavoidably unsafe.
https://www.google.com/url?sa=t&source=web&rct=j&url=http://thinkingmomsrevolution.com/unavoidably-unsafe/&ved=0ahUKEwj4qdrbvc7OAhUX5mMKHQejDMUQFggjMAM&usg=AFQjCNGXHZhIhmXRJEdXPeKOZbzGehAx0g&sig2=WWCNDR3VJcZQmaY-z-z94g
Martha: And he is correct. Some vaccines have a fairly high level of temporary protection from infection, while others, such as the flu vaccine, almost none, and pertussis weak and short-term; the efficacy of the HPV vaccine is unknowable without at least a thirty year followup since the median age of cervical cancer diagnosis is 48. But none of them are properly tested for safety, and none of them are tested at all given in combination, as most of them are. Pharmaceuticals are subject to post-marketing surveillance for adverse events; it is a system which works reasonably well. One of the most disturbing things about biologicals is that there is no post-marketing surveillance other than VAERS, but it is entirely voluntary, few physicians even know it exists, and it is widely ignored. But all of this will come later. The crucial first step is, as Tim Bolen said, to put SB 277 in the dumpster, with a temporary injunction enjoining its enforcement. This I think we will have this coming week. In the transcript the good guys told the judge clearly that this was the only issue at the hearing. The good guys are a very bright, capable, and experienced group of attorneys. You can be certain that they have spent months carefully crafting a strategy for the entire process of litigation, which may play out over several years. Once we have the temporary injunction, a trial can be held on the rest of the claim. With a trial you have discovery. You have subpoenas. You have testimony under oath. You can come watch Pan and Dean (sounds like a new rock-breaking group, opening at Leavenworth) squirm under withering questioning and cross-examination by the good guys. So fasten your seatbelt. We’ve got ‘em back on their heels. This case will cause new law to be written.
Is it true that our side also needs to overcome the fact that precedent was set in Massachusetts with the smallpox vaccine law:
—Jacobson v. Massachusetts, 197 U.S. 11 (1905), was a United States Supreme Court case in which the Court upheld the authority of states to enforce compulsory vaccination laws. The Court’s decision articulated the view that the freedom of the individual must sometimes be subordinated to the common welfare and is subject to the police power of the state—
Can it be argued that this is no longer a true precedent based on the sheer volume of vaccines being mandated now, and there for the Jacobson case no longer applies to modern times, and this has to be decided on fresh terms, as though there is no true precedent? Maybe they are already arguing this point – but I thought that the judge had asked for some precedents in other states …
I’ve been reading up on hybrid rights doctrine out of curiosity, and to further assess our chances of success. Scalia invented the doctrine in a case which narrowed, from the highest level (strict scrutiny) back to the lowest level (rational basis), the standard for free exercise claims. He distinguished that case (Employment Division v. Smith, 1990) from all previous free exercise rulings, thus preserving strict scrutiny for those cases concerning hybrid rights. But the court has not since heard a case involving such a claim, so this is new ground to plow. The circuit courts have been split three ways, two of those ways essentially precluding such a claim. Our circuit, the 9th, along with the 10th, however appears to be amenable to such a claim, particularly in the case of compelled action, which this, at its heart, is. So I remain hopeful. The state simply has no compelling interest in forcing vaccination on everyone absent any conceivable epidemic. Our public health system is very good at stopping transmission of infectious diseases.