By Dorit Reiss
The Second Appellate District’s Court of Appeal upheld the California law that removed California’s Personal Belief Exemption (PBE) from school immunization requirements earlier this month.
The decision is a strong endorsement of immunization mandates and is binding on all state courts until another appellate decision is handed down, or the Supreme Court of California addresses the question.
Known as SB277, the vaccine requirements became law in June 2015. Inspired by a large outbreak of measles at Disneyland earlier that year, the law gave California parents a choice: they could vaccinate a child against ten diseases, obtain a medical exemption stating that the child had a medical condition that prevents vaccinating, or keep the child at home and provide education through homeschooling or an independent study.
The law improved California’s immunization rates dramatically, though in some schools unjustified medical exemptions are a problem. Medical exemptions in California have tripled since the passage of SB277; in some schools, the rates of medical exemptions are unexpectedly high. The rate of growth and the distribution of exemptions suggest some doctors have been selling unjustified exemptions – as have online pronouncements by some such doctors. Dr. Bob Sears, recently sanctioned for giving an exemption to a child without checking the records, stated on Facebook that there are several disciplinary cases for unjustified exemptions pending against him.
Still, the overall immunization rate in California increased dramatically.
However, there were a few additional complications. For example, SB277 includes a clause stating that it “does not prohibit a pupil who qualifies for an individualized education program [IEP], pursuant to federal law and Section 56026 of the Education Code, from accessing any special education and related services required by his or her individualized education program.”
Whether this means that students with IEP are exempt from immunization requirements completely, or to a more limited degree, will likely be the subject of litigation at some point because districts interpret the clause differently.
The law was also implemented gradually. Children had to be up to date at checkpoints, when they first entered the system, in kindergarten, and at seventh grade. So, a child who entered seventh grade in 2015 (when the law was signed) could finish school unimmunized, and a child who started kindergarten during that year could stay unvaccinated until seventh grade.
To date, five lawsuits have been filed against the law—two by the same group of plaintiffs with substantially similar arguments, initially in federal court and then in state court. Five trial courts (two state, three federal) have so far rejected these suits. Two of these cases were appealed, and this was the first one decided.
In Brown v. Smith, six plaintiffs (out of an initial group of eight) challenged the law claiming that it was invalid because the state could not constitutionally mandate “unavoidably unsafe” products, and vaccines, they claimed, were very unsafe. It was unconstitutional because it violated their religious freedom as protected by the First Amendment and the California constitution, and it violated their children’s right to education because it violated equal protection. Far less convincingly, the group argued that the law violates a legal prohibition on medical experiments. The court rejected that swiftly.
The Court of Appeal rejected these claims. First, the court pointed out that the plaintiffs, in claiming vaccines were unavoidably unsafe, were mischaracterizing a Supreme Court case, Breuswitz v. Wyeth, from 2011. That case did not, as plaintiffs said, state that vaccines were unavoidably defective and cause “indiscriminate death and injury.” In fact, it emphasized the substantial benefits of vaccines and the risk that undermining immunization programs would lead to children’s deaths. (See also here).
The plaintiffs’ other claims were not more convincing. The court rejected their First Amendment claims, mostly because existing jurisprudence – for example, Phillips v. City of New York (2d Cir. 2015) 775 F.3d 538 and Prince v. Massachusetts (1944) 321 U.S. 158 166-167. In those cases, the courts found that “The right to practice religion freely does not include liberty to expose the community or the child to communicable disease or the latter to ill health or death.”
Even if the First Amendment required strict scrutiny, immunization mandates would stand: preventing communicable diseases is a compelling interest (the court addressed the other prong – least restrictive means – in its discussion of the right to education).
The court found the California constitution’s right to education did not prevent the state from imposing an immunization mandate.
The court’s reasoning here had three parts:
First, the court pointed out that the cases that plaintiffs relied on to claim education as a fundamental right, such as Serrano v. Priest from 1971 (Serrano v. Priest (1971) 5 Cal.3d 584, 608-609), were cases in which California’s supreme court found that the state cannot have a funding system for education – a fundamental interest – that discriminates on the basis of wealth, a suspect classification under California’s constitution (though not the federal constitution). Since there is no such classification at work in SB277, Serrano does not apply.
Second, the court pointed out that SB277 would survive strict scrutiny. As I mentioned, preventing disease outbreaks is a compelling interest. As to the claim that SB277 was not the least restrictive means, the court mentioned that plaintiffs did not specify an alternative means, and then went on to say:
“….compulsory immunization has long been recognized as the gold standard for preventing the spread of contagious diseases. As is noted in the legislative history, studies have found that “when belief exemptions to vaccination guidelines are permitted, vaccination rates decrease,” and community immunity wanes if large numbers of children do not receive required vaccinations.”
This is a strong (and fact-based) endorsement of immunization mandates. The court ended by quoting the conclusion of the first trial court to address SB277 on this point:
“The right of education, fundamental as it may be, is no more sacred than any of the other fundamental rights that have readily given way to a State’s interest in protecting the health and safety of its citizens, and particularly, school children,” and “removal of the [personal beliefs exemption] is necessary or narrowly drawn to serve the compelling objective of SB 277.”
The court rejected plaintiffs’ efforts to claim a violation of equal protection. Plaintiffs went so far as to compare SB277 to Brown v. Board of Education, claiming their children were being segregated. They named several distinctions the law made, including between immunized children and unimmunized ones, children with medical exemptions and those without, different age groups, and so on. But as the court pointed out, not only did plaintiffs not point to any authorities making any of these distinctions suspect, “[t]he statutory classifications and exemptions plaintiffs dispute do not involve similarly situated children, or are otherwise entirely rational classifications.” There is no discrimination when children that are unalike in meaningful ways are treated differently, and it does not violate equal protection.
The court, in short, following in a tradition of over 100 years of jurisprudence, rejected the claims against the immunization mandate. It went further, and strongly endorsed the law for its protection of children and the community. This is a good result for the children of California.