The SB 277 bill that was signed into law last year is now the subject of a Federal lawsuit, which has the interest of the many who are against mandatory vaccines and lack of informed consent. But there is precedent for mandatory vaccines. The Jacobson decision in 1905 upheld mandatory vaccination. As 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.
I have been monitoring the discussion back and forth between two highly respected attorneys who have experience in dealing with vaccine issues as they critiqued the new lawsuit.
After reviewing the filing, the first attorney pointed out five important differences between 1905 and now:
- Jacobson was decided before the Supreme Court used ‘strict scrutiny’ analysis. The penalty in Jacobson was a mere $5 fine for not taking one small pox vaccine; whereas the penalty under SB277 is deprivation of education (and more) for not accepting multiple vaccines.
- Certain vaccines in SB277 contain aborted fetal tissue.
- Certain vaccines in SB277 are for diseases that are not contagious.
- Certain plaintiffs have demonstrated titers for the diseases for which they are “missing” vaccines.
- California has a 55-year precedent of the Personal Belief Exemption, which shows that a narrowly tailored alternative exists.
[‘Scrutiny’ refers to the standard of constitutional review. There are two main types of scrutiny in constitutional cases: (1) Strict Scrutiny, and (2) Rational Basis Scrutiny.
(1) Strict Scrutiny
If a law (like SB277) materially infringes a fundamental right (i.e., right to bodily integrity, right to freedom of religion), then the State must prove (1) that law meets a compelling state interest, and (2) that law is written narrowly to avoid undue impact on rights.
So, strict scrutiny is meant to protect rights.
(2) Rational Basis Scrutiny
But where the law does not infringe a fundamental right (i.e., zoning laws, or typical health and safety laws), then the State must only prove (1) any legitimate basis for the law, and (2) the law is rationally related to that purpose.
So, rational basis scrutiny is meant to protect State power/discretion.]
The first attorney was encouraged to see that the lawsuit was using the State’s own positions (e.g., the California legislature’s official analysis of SB277 provided that “vaccination rates of up to 95 percent are necessary to preserve herd immunity and prevent future outbreaks.” Yet California’s vaccination coverage rates of school-aged children exceeded 95% before the legislature passed the law.)
"He [plaintiff] would have considered this testimony of experts in connection with the facts, that for nearly a century, most of the members of the medical profession have regarded vaccination, repeated after intervals, as a preventive of smallpox; that, while they have recognized the possibility of injury to an individual from carelessness in the performance of it, or even, in a conceivable case, without carelessness, they generally have considered the risk of such an injury too small to be seriously weighed as against the benefits coming from the discreet and proper use of the preventive, and that not only the medical profession and the people generally have for a long time entertained these opinions, but legislatures and courts have acted upon them with general unanimity. If the defendant had been permitted to introduce such expert testimony as he had in support of these several propositions, it could not have changed the result. It would not have justified the court in holding that the legislature had transcended its power in enacting this statute on their judgment of what the welfare of the people demands."
The Jacobson court in 1905 also likened mandatory vaccination to the mandatory ‘military draft’ in the 20th century. But it’s been over 100-years since then, and we have seen the rights of the conscientious objector increase rather than decrease. The Federal courts have been instrumental in protecting the rights of the minority in this regard.
The Federal courts will have that opportunity again but now we have the injury data from the VAERS reporting system.
Time will tell whether these modern data precedents are distinguishable from this language in Jacobson,
Attorney number two said, “If I were representing the State of California, I’d argue that the science is moot, because the legislature is presumed, as Jacobson said, to have considered competing theories about vaccines and infectious disease, and to have determined what was best for their citizens–and the court can’t go back and open up that discussion and ‘correct’ the legislature (though I suspect the courts could if if were proved that the legislature got to their end results via fraud). So it’s not about scrutiny levels, it’s about separation of powers–what authority lies with the legislature, and what with the courts. However, there is a purely legal argument that is about the law, and not about the evidence, which could be advanced, and that is precisely about scrutiny levels.”
How does that apply to an SB277 Challenge?
It would be tougher for the State to uphold SB277 if the court applies strict scrutiny.
But more importantly based on precedent, it would be almost impossible for plaintiffs to challenge SB277 if only rational basis scrutiny is applied.
Attorney number one brought up the Yoder case – Wisconsin v. Yoder, 406 U.S. 205 (1972), is the case in which the United States Supreme Court found that Amish children could not be placed under compulsory education past 8th grade. The parents’ fundamental right to freedom of religion outweighed the state’s interest in educating its children. The case is often cited as a basis for parents’ right to educate their children outside of traditional private or public schools.
The key point in Yoder was that the Court noted that there was no evidence of “any harm to the physical or mental health of the child or to the public safety, peace, order, or welfare.”
Yet the holding in the Yoder case applied just as equally to the one Amish boy in Wisconsin as to every child in the Nation.
This new lawsuit against SB277 has plaintiffs who can demonstrate the complete absence of harm to both themselves and the public.
This is the same reason, for example, legal scholar Mary Holland made such a compelling case against mandatory Hep B vaccines for infants: Holland, M., Compulsory Vaccination, the Constitution, and the Hepatitis B Mandate for Infants and Young Children (2013).
If an SB277 lawsuit can establish that any one child has a right to a personal beliefs exemption, then on what basis shall all children be denied that same freedom?
Now, with that legal background, take your pick of plaintiffs from the new SB277 lawsuit featured on Bolen report: who could be harmed by the plaintiff with demonstrated titers? Who could be harmed by the infant foregoing the HepB vaccine? Who is harmed by the plaintiff who rejects only the vaccine with aborted fetal tissue?
Thus, a winning case is not a purely legal question of ‘scrutiny analysis’ per se that determines the outcome (although the scrutiny standard is key to the ultimate outcome), but rather it is the specific plaintiff facts that win the case; in particular, the factual absence of any harm applied to a specific plaintiff.
Stepping back, philosophically… What a curious world – a natural baby is born to happy organic parents in the “progressive” state of California, and we the parents must prove to the State that our baby is not a threat to others?
Not only is mandatory vaccination a slippery slope in this regard, but it shows how far we’ve already slipped in constitutional law. At some point, someone must reign it in.
The courts have always been the last protectors of the rights of the minority, even though they are often reluctant protectors – in civil rights law, we see countless cases that don’t win before the one (just one) that wins the day, such as Brown v. Board of Education. It turned all established precedents on their head, as people protested in the streets. And indeed, Californians are protesting in the streets today.
When the right case does break the existing power paradigm, the whole country feels the weight of that authority, and the whole country changes. Even one little Amish child, the right plaintiff, can change the law throughout the Nation.
Now attorney number two said, “You have to understand that healthcare policy and law is driven by mainstream medicine, and that courts don’t decide the science, they weigh the evidence. It doesn’t matter how many alternative medical docs you put on the stand to explain the truth about vaccines, as there are 1,000 to one who will testify that vaccines are safe and effective, necessary, etc. While courts lack authority to 2nd guess the legislature under Jacobson, if the court entertains science arguments anyway, the majority of med docs plus state and fed health agencies will overwhelmingly carry the weight of the evidence. I’m playing devil’s advocate here, I would be very happy to be wrong, so we’ll just have tot see how this goes forward. But respectfully to all concerned, I am skeptical.”
The complaint does plead the loss of religious freedom (see e.g. paras. 97-98; Count II) focusing on the aborted fetal tissue.
It also pleads hybrid-rights factually (see e.g., para. 114), toward the goal of strict scrutiny.
Further, the case is one for Declaratory Relief (focusing on the right to education), so that should address the concern about purely legal argument (and the risk of delving into mainstream medicine). Indeed, the procedural standard is to show plaintiffs “injury is established, and the legal arguments are as clear as they are likely to become.” National Audubon Society, Inc. v. Davis, 307 F.3d 835, 857 (9th Cir. 2002).
Attorney number one stated, “Courts can assume strict scrutiny applies before even deciding the question. See e.g., Alaska Right to Life Committee v. Miles, 441 F.3d 773 (9th Cir. 2006). In any case, scrutiny questions are not easily decided as a matter of law, because they require application to the actual plaintiff’s case. As the Supreme Court stated in United States v. Salerno that a “facial challenge to a legislative Act is, of course, the most difficult challenge to mount successfully” and will only succeed if a litigant can “establish that no set of circumstances exists under which the Act would be valid.” 481 U.S. 739, 745 (1987).
“And declaratory relief is only appropriate where there is an actual controversy, and not simply an abstract or academic dispute, between parties who are affected by the legislation. See e.g., Newland v. Kizer (1989) 209 Cal.App.3d 647, 657.
“Further, in a declaratory relief action key facts need to be presented to the court to make the case justifiable, for purposes of both standing and an enforceable court order.
The lawsuit is not challenging vaccine science per se, but rather utilizing the State's own quotes (e.g., the California legislature’s official analysis of SB277 provided that “vaccination rates of up to 95 percent are necessary to preserve herd immunity and prevent future outbreaks.” Yet California’s vaccination coverage rates of school-aged children exceeded 95% before the legislature passed the law.) And then of course there is VAERS.
Note also para. 43 of the complaint, “The percentage of fully vaccinated children has not dropped below 95% of California school aged children in any period for which CDPH provides historical vaccination data.”
That 55-year precedent of the personal belief exemption has never been litigated, until now…
…and so it goes.