Scrutinizing Mandatory Vaccination and SB 277: what lawyers have to say about the new Federal lawsuit

KP Stoller, MD  

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:

  1. 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.
  2. Certain vaccines in SB277 contain aborted fetal tissue.
  3. Certain vaccines in SB277 are for diseases that are not contagious.
  4. Certain plaintiffs have demonstrated titers for the diseases for which they are “missing” vaccines.
  5. 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.

KP Stoller, MD

13 thoughts on “Scrutinizing Mandatory Vaccination and SB 277: what lawyers have to say about the new Federal lawsuit”

  1. “Now attorney number two said, “You have to understand that healthcare policy and law is driven by mainstream medicine …………………”

    The point of this is that belief in vaccination is not scientifically based but is a dogma, i.e. a required belief which it is forbidden to question.
    As I said some years ago on YouTube, vaccination is not a science; it is a religion!!!
    Part 1
    Part 2

    Prof Bruce Lipton PhD left his tenured post teaching the so called “mainstream medicine” BECAUSE science showed that the dogma is untrue!
    It should, therefore, be relatively easy with a sheaf of carefully tailored question to demolish any and every “medical expert” defending vaccination by getting them to admit in open court that their belief in vaccination is based upon indoctrination in medical schools and that they are unable to proffer any scientific evidence to support their belief.

    As I said in 2009, vaccination is a religious dogma and nothing else!
    Although the USA has not ratified the UN Charter on Children’s Rights, there is, I believe, some article in the US constitution specifically forbidding forced religion.

    The core problem that we have to tackle is the belief system upon which mainstream medicine is based, i.e. the dogma which Pasteur and Koch spread for their personal enrichment and aggrandisement in the certain knowledge that it was (and still is) untrue. The problem is that for a society which has been based upon warmongering for more than two thousand years, it SOUNDS so reasonable. It is this core belief which we must demolish by showing what really causes dis-ease.
    I am writing the book as fast as I can.

    Blessed be

    Karma Singh

  2. Just that you meant “rein it in”, not “reign it in”. Also, how did Hepatitis B vaccines for newborns ever get on the list of mandatory vaccines? First, newborns can’t yet make antibodies, so the vaccine won’t do what it’s supposed to, and secondly, how many newborns are having unprotected sex with prostitutes and drug addicts? It’s absolutely appalling that this vaccine is on the mandatory list!

  3. Rep. Mike Gatto, one of the few Democrats to vote against 277, has also practiced constitutional and appellate law. In the spirit of lawyer viewpoints, here’s his statement:
    Listening to this always makes me feel better. (:
    He also introduced the bill to protect physicians writing medical exemptions.

  4. And this, ladies and gentlemen, is one of the main problems:

    “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.”

    In too many people’s minds, in our society, they have built up this concept of “science” like it is some kind of god. They think that “science” trump all other philosophies/forms of reason. There is a word for this: “scientism.” I think that this may be the root of a lot of the problems that the alternative health movement faces. I was going to point out, in another thread, (before some jerk put a “period”) that I think that this scientism is the reason why so many liberals, as well as even many libertarians, want to believe in mainstream science and medicine. I think that the ultimate solution will be to figure out how to cause a lessening of the respect that our society has for “science,” as well as an understanding that, while “science” should be respected, it should not be respected like a god, and that there can be other philosophies that can and should, sometimes, at least, trump “science.”

  5. Mandatory vaccinations violate Nuremberg code Article 1. Wasn’t US Justice Jackson presiding at the trial at Nuremberg in post WW2 Germany. Some German doctors were hang for medical experiments on prisoners without their consent. Informed consent of patients is a must in any medical practice. Do we have a right to be safe in our body from unwanted medical experiments or our body is a part of a herd and State can compel forced treatments? Science itself is not settled on vaccines.

  6. There is NO Rule Of Law

    It is broadly illegal to price-fix via any mechanism where market power exists. So says 15 United States Code, Chapter 1. Go read it. Virtually the entire US Medical System operates on business models that are facially in violation of that section of law.

    The latest outrage is an off-patent device called an “Epipen” used for severe allergic reactions; if you need one and don’t have it you have a very good chance of dying. They cost about $60 10 years ago, and are about $100 today anywhere else in the world. Except here in the United States — where they’re $400, and if you get on a plane, buy a bunch and bring them back to sell (to make a profit and undercut the price) you go to prison. The exact same sort of price-fixing with the direct support of the US government and FDA is present in virtually every area of medical practice — from drugs to devices to hospitals. All of this facially appears to be illegal; were I to even have had a discussion with a competitor on fixing pricing when I ran my Internet company that would have been a federal offense.

    snippets from
    2016-07-05 10:34 by Karl Denninger
    in Editorial , 28822 references
    America Died At 11:00 ET 7/5/2016

  7. Dr. Stoller’s analysis of Jacobson is excellent. The law is settled: we each have the right of Informed Consent, codified after Jacobson, but it was Jacobson that started it all.

    I am particularly drawn to the comment in the Decision that the Federal Courts were “not without power” to protect people “…if it be apparent or can be shown with reasonable certainty that he is not at the time a fit subject of vaccination or that vaccination, by reason of his then condition, would seriously impair his health or probably cause his death.”

    Now, a hundred plus years later, we know the risks of vaccination and must assert our Informed Consent right or lose it!

    In Missouri v McNeely the Court said that even a “…diminished expectation of privacy does not diminish the… privacy interest in preventing a government agent from piercing the… skin. And though a blood test conducted in a medical setting by trained personnel is less intrusive than other bodily invasions, this Court has never retreated from its recognition that any compelled intrusion into the human body implicates significant, constitutionally protected privacy interests…”

    More here:

  8. Regarding this comment: 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. /// That’s just preposterous. Weight of evidence does not depend on the number of people who will claim something. It depends on the strength of the details of what they will say. As another already said, it would be very easy to cross examine the doctors to get them to admit they really know next to nothing about vaccine safety records or testing, and that all they really know are mantras and slogans. They don’t know what happens to the aluminum when it is injected into the body, but they do know it is not excreted. This is huge. Dr. Humphries and any one of about 50 well known anti vaccine doctors would absolutely destroy any doctor who tried to stand up in a one to one debate, and this is exactly what courts are for, to present the competing and compelling evidence for due consideration. To assert that the courts will refuse to consider evidence because it is presumed that the legislature already looked at it, is also absurd. That’s just assuming that you will always lose and that courts never overturn any laws, just a baby faced silly notion.

  9. @Jason Hommel,

    I see the link I’ve provided doesn’t work, but here are a few other articles you may want to review:;;;

    …and the list just goes on and on and on re the upholding of mandatory vaccines by our courts.

    This is not some sort of collusion by attorneys, or their unwillingness to try to fight these statutes/mandates in a court of law. Courts have stated, on record, that it is not the place of our justice system to decide the science behind the safety/efficacy of our vaccination program. Rather, they have stated it is up to our higher medical institutions to determine true science behind vaccination policies, etc.

    I have some hope that the documentary Vaxxed will help shed more light on the corruption within our medical institutions (mainly the CDC in this case), and therefore, shed some light as to why these institutions cannot be trusted regarding oversight of our vaccine program.

    Our system of government is broken, on so many levels, as are our medical institutions. I am convinced, after researching the vaccine issue for over 20 years after our son’s vaccine reactions, that the only way in which this madness regarding vaccine mandates will end, is a massive awakening of the masses, and not just at the grassroots level, i.e., parents, grandparents, but from within our medical organizations themselves (physicians/nurses).

    Our broken systems will not – cannot – fix themselves. It will be up to the masses to literally force this paradigm shift, but that takes time. I have to say, however, that what I am witnessing today – this awakening of so many people regarding vaccine issues – is something I never thought I would see. I am thrilled beyond measure to hear more and more physicians and nurses pulling rank and finally speaking out about their concerns regarding our vaccine program.

    This isn’t just an issue for the United States; this is a global issue. Our physicians and nurses and other healthcare providers have been massively deceived/indoctrinated into the belief that vaccines have help rid the earth of dreaded diseases, when nothing could be further from the truth.

    Vaccines have become the Second Coming of the healthcare industry, so how dare any of us question its merits. There’s a true cognitive dissonance when it comes to discussing the negative side to this subject; it’s like fighting to undo the damage to former cult members who have been thoroughly brainwashed.

    I’m not at all convinced (any longer at any rate) that this issue with vaccine mandates will be settled in any court of law. One thing I learned after working in litigation for many years (legal assistant) was that a court of law is not about truth/justice, as much as we all would care to believe it is. Our court system is all to do with power, money, egos, gamesmanship. It’s also about politics and cronyism.

    We need a revolution against these mandates – I am absolutely convinced of that. We need a massive paradigm shift, but that will happen only when/if enough people wake up and realize what’s going on.

  10. Bayareamom – your link isn’t working but I did find the IDSA Clinical Practice Guidelines for Vaccination of the Immunocomprised Host. One of the assertions behind The need for SB277 to override AB2109 is that herd immunity at 97% is insufficient to protect the immunocompromised. However, this is showing that the immunocompromised are heavily vaccinated, so this is yet another instance of how arbitrary SB277 is.

    I also found this troubling nugget on that website:
    “While the United States has made significant progress toward eliminating vaccine-preventable diseases among children, similar successes have not yet occurred for adults and adolescents. Unacceptably low immunization rates exist among many adults and adolescents in the U.S. To combat this failure, IDSA developed a set of policy principles and recommendations to strengthen adult and adolescent immunizations, and we are working with federal and state partners to move these ideas forward.”

  11. First, regarding Jacobson, the Supreme Court took judicial notice that: “A common belief, like common knowledge, does not require evidence to establish its existence, but may be acted upon without proof by the legislature and the courts.”

    Not withstanding Jacobson, the Supreme Court reversed course 180 degrees. In United States V. Carolene Products Co. [304 U.S. at 147 (1938)], the court stated: “where the existence of a “rational basis” for legislation whose constitutionality is attacked depends upon facts beyond the sphere of judicial notice, such facts may properly be made the subject of judicial inquiry, and the constitutionality of a statute predicated upon the existence of a particular state of facts may be challenged by showing to the court that those facts have ceased to exist.”

    California law SB277 is predicated upon a particular state of facts that are without support and have ceased to exist. The attorneys have demonstrated that the justification in support of the law is narrowly tailored and lacks a “rational basis” of fact.

    Second, SB277 stands as a text-book example of a “class-legislation” case where fundamental liberties are arbitrarily denied to a “discrete and insular” suspect-class of citizens that are deemed by the state as a lower “caste”, but not to a “similarly situated” suspect-class” deemed as a higher “caste”. The burdensome restrictions placed on the disfavored minority, while at the same time allowing the favored group protection constitutes discrimination. Notwithstanding, a court must apply “strict scrutiny” and find the arbitrary legislative line-drawing untenable when balanced against the fundamental right exercised and the substantial damage caused.

    Moreover, a critical issue is overlooked here; California did not have to include the PBE exemptions in their vaccination scheme. They did so, presumably because they understood that the type of immunization required by law would place a substantial burden on a class of individuals that have a contradiction to this form of treatment. The vaccination scheme has established that a new suspect-class exists within their jurisdiction.

    The motivation of the state to make reasonable modifications in the form of “exemptions” to the policies, practices and procedures of their vaccination laws where such modifications are necessary to afford statutory protections to otherwise uniquely burdened citizens has by way of “cause and effect”, created a new “suspect-class” entitled to protection under anti-discrimination laws. The fact that the state deemed it necessary to include in the vaccination scheme an “exemption” clause, is by default an admission on their part of the creation of a new suspect-class.The debilitating/harmful effects of pathological vaccinations on the integrity of the physical/spiritual bodies on a distinct segment of the population is acknowledged by the state and provided for in the form of exemptions.

    The attorneys at bar seem to understand that this case constitutes unconstitutional class legislation when they stated that: “Strict Scrutiny must be applied to violations of fundamental protected rights under the California State Constitution, or where suspect classifications are at issue.”

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