Sorry Cali. Vaccine Concerned, but I don’t think “medical discrimination” is a valid basis to challenge SB 276


A few of you have suggested something about a class action against a school or someone as medical discrimination if their child’s vaccine exemption application is denied or an existing exemption is revoked. I’ve never heard that kind of thing before, and I doubt it exists in law. But if there’s a case out there in the case books, I’ll take a look at it, but I really doubt there is.

Reason being, it is accepted law across the country that states have the right to condition school attendance on compliance with CDC/AAP/AAFP et al vaccine schedules. I know you folks don’t agree with the vaccine schedules or that your children should be required to be vaccinated to attend school, but it’s the law, and in my view, it’s not going to change just because a relatively few of you don’t like it.

The latest poll showed that 72% of American believe children should be vaccinated, and nowadays, this might be the only thing that 72% of Americans agree on. You can take the position that those 72% are misinformed or unawares, but that kind of consensus emboldens politicians, witness the latest federal effort to cut-off federal funding for states which don’t adequately enforce mandatory vaccination laws. (The bill had been introduced before but died. We’ll see what happens this time, with the measles fevor spreading around the country.)

And don’t ever start about the medical freedom stuff. Californians lost that battle and their freedom to make vaccine related decisions for their kids under SB 277, which removal of rights was affirmed in every single lawsuit challenge.

You might not like it, but there is no constitutional right to a personal belief exemption. There’s no right to attend school unvaccinated (unless your child is covered by a medical exemption or have an IEP). There’s no Nuremberg code right to be free of vaccines/aka medical procedures. None of that stuff exists except in your wishful thinking minds about what a better alternative universe would look like, or in the 17 or so states which, for now, still have a personal belief exemption, or the many states which still have a religious exemption (and, and I think these religious exemptions are going to be targeted for extinction too).

But in the great state of California, you just don’t have those personal freedom rights anymore, and they’re not coming back, at least as long as the Dems have a majority of both houses. And regrettably, it looks like medical exemptions beyond CDC guidelines is also leaving the state soon.

But that’s an aside. The point is that I don’t think medical discrimination is a thing in terms of a legal theory to avoid a mandatory school vaccination law for someone who does not qualify for a medical exemption.

No doubt there will be multiple lawsuits challenging SB 276 if it’s signed into law. I don’t know that any of the legal challenges will succeed, but I’m fairly confident that if one does, if won’t involve medical discrimination, unless of course I’ve missed a case somewhere.

The basis of my opinon is that discrimination is a term thrown around a lot, but it’s never an effective litigation claim unless the plaintiff is a member of what the feds call a “protected class”, like race, religion, ethnicity or your sex, and the discrimination relates to your membership in one of those protected class. Medical fragility is not a protected class. (Could it become one? I doubt it for reasons I won’t go into here and now.)

So, sorry I’m not seeing the medical discrimination theory as a way to successfully challenge SB 276 in general, or as a vehicle to undue the denial or rescission of a medical exemption, or as a basis to force the school to admit an unvaccinated non-medically exempt student.

But if you’ve got any other ideas, post them as a comment and I’ll react either as a reply or in a post. And sorry, I’m too busy now to have private conversations with everyone or anyone who has an idea about this stuff. You’ll see why in a few days and you’ll understand and like it.

Rick Jaffe, Esq.

47 thoughts on “Sorry Cali. Vaccine Concerned, but I don’t think “medical discrimination” is a valid basis to challenge SB 276

    1. I’m not a big fan of the religious vaccine exemption for analytical reasons except for Christian Scientists and the Amish.

      Many vaccine exemptions are based on family history or genetic disposition based, and some or many times a prior AE which usually has resolved. In other words, they are basically healthy children. I don’t see how they are disabled.

      the PBE is dead in california and there is no constitutional right to either a religious or PBE, even if there was such a thing as a religious basis for an exemption beyond those two religions. For now, the states aren’t looking too hard at the religious exemption issue, but I think they may, if they start having measles outbreaks. Not a slam dunk for them because of precedent giving people asserting religious beliefs deference. But it’s a comming if there are more outbreaks in these states.

      1. What about children who do have a Disability and a Medical Exemption. For instance my son is on the Autism spectrum and there are many who are or have other disabilities.

  1. Not being s lawyer I’m sure I’m off here but Brown vs board of ed, separate but equal. My child has a valid med exemption now but likely will not after this passes. Why are children with active infections of TB, Hepatitis or HIV allowed to go to school without discrimination legally? This is where I’m lost.

  2. It seems like there isn’t a lot of hope concerning class actions for discrimination. Does it seem to you that the only recourse parents will have it to sue after their “medically exempt” child is injured by a forced vaccine. Many parents aren’t willing to play Russian Roulette with their child’s health.
    It really bothers me that state officials are going to have the task of deciding what child should receive vaccines and which should not. Isn’t that practicing medicine without a license?
    Or will a county approved doctor be signing off on these approvals or disapprovals?

  3. Once SB276 becomes law, the next logical step is to have homeschooled kids follow the same requirements (to be vaccinated unless subject to CDC guidelines). Do you think there a good basis for legal challenge to this?

  4. Seems as though the best strategy is to repeal the “1986 law” so that vaccine-injured families can once again sue in criminal court. The basis for such a repeal would be that the terms of the law were not followed, such as “vaccine court” is not “speedy, no-fault and non-adversarial” and there has been no ongoing research to “make vaccines safer.” Also, no proper safety studies exist at all.

    1. IMO, not even remotely realistic. Pharma controls congress and the media and per latest poll 72% believe all kids should be vaccinated. So unless you’ve got a magic wand or a wish from a genie, think about something which is realistic is this version of reality

  5. Since when did legal precedent become rule of law? New precedents have been set throughout the centuries where there had been none before based on other compelling moral arguments about unjust issues in need of reform. And what is the recourse when our laws are immoral, not based on independent science, nor based on the constitution, state and federal, and international laws/moral codes like the Nuremberg Code. What is our recourse when our laws cause babies and children are harm, even death. We have among the highest to highest infant mortality rates and Autism rates in the developed world, to my knowledge. Other countries do not do what we do in the United States… our vaccination policies are insane. Other countries do 1/3 the vaccines we do and have much lower Autism rates, in the 1/1000-1/2000 range, and much lower infant mortality rates. This is not a vaccinate vs don’t vaccinate argument we are having here in CA. This is assault and even murder. This is fascist tyrannical stuff on the level of past genocides. People’s beliefs, majority “group think” have nothing to do with what is right on this topic, or any topic really. The data speaks, the whistleblowers speak, basic human rights and decency speak. People should not be coerced into accepting an insane amount of vaccines untested in this combination and schedule on anyone, let alone on babies, in exchange for basic human and constitutional rights like a public education, public assistance (food and housing), etc. etc. And they call it a “choice”. What a joke. Maybe if you are a mobster you call coercion a choice but no I don’t think so. There is a reason other states are voting these bills insane mandatory vaccine bills as unconstitutional, not medically sound, etc., etc., over and over again 4 years ago after SB277 and now the last few months. Maybe you have lived in California and practiced law here too long to remember what the pure law/ legal system is supposed to be about. Think William Wilberforce. Maybe the issue is not hot enough for you personally to do what it takes and risk what it takes to attack this head on. Maybe you don’t have the entire picture. But a majority or minority, does not matter, our system of government was meant to protect the minority and the majority and all should be represented. All are valuable and worth fighting for. In a state that professes to want to protect discriminated peoples of all types, we in California are grossly misinformed and misguided in our “group think” on this issue. Vaccines have never worked the way the mainstream media- Pharma Astroturfing/marketing says they do… never will they eradicate illness, even with 100% compliance and we can see this from data in countries where they have 99.9% compliance like China and they still have “outbreaks”. Way to much to even begin to be able to summarize on this, but the Democratic Party backing of this issue along party lines is harming children. We absolutely must use our court system to protect them and set precedent to stop this insanity.

    1. Unfortunately, polls repeatedly show that most people don’t agree with you, and the consensus of scientific experts don’t agree with you. You can ignore or be dismissive and call it all a conspiracy by government and pharma and whoever, but it’s not going to get you anywhere. My view is that the tone and hyperbole in your post which is very very common among many of the vaccine concerned is hurting your cause. That’s my professional opinion, which no doubt you disagree with, which is your right. It’s possible that you’d be better off not reading any more of my posts, if they are going to rile you up so much.

      I’m doing my thing trying to inform and educate people about what I think the issues are and the way neutral lawyers and judges look at these complicated issues. But again, it may not be for you if your reaction is to rant and give a tirade.

      All this hyperbolic stuff (to put it euphemistically) just reinforces most people’s views that so called “anti vaxxers” are a bunch of wackos. It pains me to see reactions like this that support that view.

      So feel free not to read anything else here if it will upset you so, because I’m sure future posts will.

      I’m not a facebook warrior, just a lawyer and I operate in a different arena primarily.

      Or you might just stop the tirades and wait a few days and see what professionals do.

      your choice

      1. Sounds like you’re saying that there is really no recourse to these laws…Resistance is Futile.

        I do disagree about the Bigpharma conspiracy not being accurate. The former editors of NEJM, Lancet, and BJM have all confirmed that FDA, CDC, ACIP & AMA have been corrupted. I don’t consider them conspiracy theorists.

        1. didn’t say that x 2. I think it’s accepted that pharma has too much influence on congress and the FDA and probably not accepted but true that it has too much influence on the media through advertising. That’s not even controversial.
          I’m also not saying there’s no recourse. I am saying that the battle for health freedom from vaccines in terms of PBE’s was lost with SB 277 and when all the cases challenging it were thrown out. That part of the fight is over, and I think it doesn’t advance the cause to keep harping on medical freedom when that ship has sailed.
          the battle is about whether docs can use an alternative standard of care to make vaccine exemption decisions. That was supposedly given to them under SB 277, but Pan and others are trying to remove that right. I thought you folks need to frame the arguments in that vein rather than ranting like some about freedom, Nurenberg, murder and slaughter and crazy stuff like that. That’s my opinion and everyone has one.

          1. Totally agree. I also dont think the general public has a clue that these laws are not just chipping at medical freedom of school children. Maine just passed a mandatory vaccine law taking Religious & Philosophical exemptions from ADULTS. News is mysteriously silent about that piece. I would be surprised if polls would be in favor of compulsory flu or shingles vaccines for adults. That’s where we’re headed.

      2. So when I give another perspective, a rebuttal to your opinion, you characteristics it as “upset” and “hyperbolie”? I am not upset. And polls or popularity contests should not be used as a justification for law or policy. That was my point. We need some legal hero’s here. Like the lawyer that took on Monsanto and won, twice.

  6. What survey are you referring to?

    I’m sure it was written in a very biased way, like “Do you believe children should be required to receive life-saving vaccines from deadly diseases before school entry?” Who is going to say no to that unless you are already highly educated on the subject?

    If they worded it fairly, like “Do you support refusing children an education if they don’t receive every single dose of every vaccine that Pharma can manufacture (72 now but heading towards hundreds), even when they haven’t been studied for safety, cannot be held liable for injury and some are not even transmissible in a school setting? Would you support stripping educational rights if you understood that many of these doses do not affect transmissibility (but rather only individual symptoms) or can actually cause outbreaks themselves? Would you support stripping educational rights away if you knew that vaccines had been implicated in our exploding chronic health crisis and the government and Pharma refuse to study those topics further, but just want to keep adding hundreds of more doses? I bet the numbers of “approval” would drop dramatically.

    Our entire government structure is set up to protect the minority groups from the oppression of the ignorant masses. The legislators that have a soul and take their oaths seriously must consider this vaccine injured, susceptible group as one that requires protection and not oppress them and harm them because 72% who either don’t care or aren’t affected agrees.

          1. Among Millenials, support for mandatory vaccines for kids is just 60%. Again I suspect that there will be more vocal pushback by Millenials & Gen X, when mandates that include adults, like Maine LD798, become more common.

            That’s why the bill was rushed through with media coverage focused on kids. It will take social media activists to alert the younger generation. Which IMO is why they’re censoring antivax comments on social media.

  7. Thanks Mr.Jaffe.
    Is there a way to define current belief in vaccine safety as a type of religion due to the lack of gold standard testing and pediatricians not knowing what’s the ingredients? one of the definition of religion is: a cause, principle, or system of beliefs held to with ardor and faith.
    These public health officials believe in these effectiveness of vaccines like a religion even though outbreaks have broke out in highly vaccinated populations (mumps outbreak in universities, navy ship. Quebec area measles outbreak in 1989, pertussis outbreak in SoCal, etc.)
    Since they believe in it like a religion, they cannot enforce such religion on our children infringing on our 1st Amendment rights?

    1. It absolute is a religion for them. the phase I coined in my book (and it’s on the cover) is “the church of medical orthodoxy.” But with the greatest respect, I think it’s a religion for some on the other side as well. I don’t think there’s any fact or evidence that would convince hard core anti vaxxers (as opposed to vaccine concerned) that vaccines have any benefit or saved any lives. My view is that if that’s your position, you’re just as religious as the Paul Offit’s and Senator Pan’s of the world. You just pray at a different church.

      1. Yes, but the 1st Amendment doesn’t say I cannot practice my religion or cult. It just says the government cannot enforce a religion on me. Btw, i believe I’ve shown my position (or non-position) by injecting that vaccines into my child and only stopped due to injuries. TIA for a response

  8. One thing I’ve always wondered in regards to discrimination (though I understand this is not really an argument per your clarification above) is how can they not allow unvaccinated kids entry to school and at the same time allow non-responders (vaccinated but not immune)? Feels pretty discriminatory to exclude one set of not immune children but allow the other.

    1. that’s an excellent point, since primary vaccine failure in measles is at least 10%. Are titers for measles routinely tested? I didn’t think so. If not, that would add an additional layer of testing/ another medical interaction and complication. But if the measles problem gets alot worse, I’d expect some DPH person or maybe Senator Pan to suggest it.

      1. Not only vaccine failure but the fact that a child with active Hepatitis B has the right to attend school. While a healthy child without the Hepatitis B vaccine is not allowed. I never understood how that was never challenged in court as arbitrary and capricious.

        1. Hep B isn’t airborne contagious is it? I thought it was blood based and transmitted by blood. If so, I’m not seeing the analogy with a highly airborne contaganon like measles. sorry

          1. Exactly my point. Hep B vaccine was added to the children’s schedule in 1991 because high risk adults weren’t agreeing to the vaccine. It was extremely controversial at the time because Doctors admitted that children were NOT acquiring this disease from each other, but through an infected mother. Even then, cases among children were extremely small as most mothers are tested for Hep B during pregnancy.

            They slipped this vaccine into the mandatory list for school at some point without public outcry (unlike the attempt to mandate HPV). Which begs the question, if a HEALTHY child is being denied public school ONLY because the parent refused the Hep B vaccine…why is a child with active Hep B allowed in school through an anti-discrimination clause? It seems arbitrary and capricious, which Jacobson v Mass warned was a valid reason to get the courts involved with mandatory vaccine laws.

          2. that’s extremely interesting to me, the origin of the Hep B mandatory vaccine. It never made sense to me why that at birth or so early since it’s a sexually transmitted or transfusion based disease. Stick it to the kids because adults won’t comply. Seems unfair. hmm. I’m going to think about that. thx

          3. It is also more interesting because it is not mandatory to move on at the 7th grade check. So they didn’t retroactively make it mandatory for those of us who had PBEs and I wonder why. Becuase it doesn’t work? Not that important afterall? Does anyone know?! I am glad, one less for me to fight.
            I had a very clear DO NOT VACCINATE WITH HEP B when my daughter was born. I warned my husband about it and sure enough, at 1 am when we were passed out asleep in the hospital, the nurse tried to sneak into our room and give it to my newborn daughter. It was unbelievable to me that they would ignore my medical requests. And this was before they threw it on to the mandatory schedule a few years ago.

  9. What about our right to a second opinion with doctors and rights to alternative medicines? Is that a thing?

    I agree and thought the same thing with the signs and protests- it doesn’t need to say it’s our choice because they already said that with 2B277 we need to be protesting the doctor patient relationship! Everyone I have talked to vaccines aside agrees with me that no state should be making medical choices- the way I explain it is it’s like a DMV worker approving medicine for my kid! Hello no!

    1. “rights to alternative medicines? Is that a thing?:
      BINGO! and very excellent work.
      It absolutely is a thing under Ca. law, and hopefully it’s going to be a much bigger thing if I have a say in it.
      Stay Tuned!

    2. Good job Melissa! And per a comment I hope gets published, if they deny antibody titers, then they are denying their own science.

  10. It’s time to move out of California and go to other states that has a personal, religious or medical exemption. I’m fortunate that I’m well off and can easily move anywhere. I can also send my kids back to my motherland the Philippines and have them enrolled in a private school. I feel bad for the parents that are stuck in California and can’t afford to home school their kids because both parents have full time jobs or can’t move to another state. America is no longer the land of the free.

  11. What about a class action suit based on what they do with Medical Exemptions based on antibody titers? There appears to be some confusion on whether they will be allowed or not with SB276. They are allowed with SB 277, I have an email from CDPH stating as such (“but of course, protection is better with shots” they said… lol ). But if they deny these ME if this law passes, just because the CDC doesn’t make mention of titers, then that would be a great basis for a lawsuit because to my angry non-lawyer mind, then this means that they DENY their own science. The ONLY thing that proves this vaccination thing even works is antibody tests in conjunction with correlation studies. So if they claim that antibody titers are not acceptable, then they are basically claiming their whole scientific premises isn’t even sound.

    So all of us whom may have ME for titers get denied, surely this would have a chance at a lawsuit? It would be a great opportunity to have them trip over themselves, denying ME antibody titers while having to explain how they are actually used antibody titers to justify their science. KWIM???

    1. I’m probably not up on the details the way many of you are, but how would a kindergarten student have titers/antibodies to a disease without a vaccine or having contracted the disease? I admit that I didn’t know that was possible, if you’re saying it’s a thing.

      1. Maybe. Many of the first doses are given because immunity only lasts a short time. So they repeat doses and the so called booster is the one that allegedly lasts. My daughter didn’t get the full series (4) of one vaccine but one dose at about 5. She has lifelong immunity from that one dose. She has lifelong immunity to one dose of another. She has not had one vaccine, got the illness unbeknownst to me, and she has.lifelong immunity. All of this our ocuring before 7ish. And now I am faced with trying to get an ME for those 3 vaccine preventable diseases just because she didn’t have 8 doses to get there! I have it in writing from CDPH that I can get an exemption but under Pan’s evil plan, they might now refuse it. I may need an attorney. Many families home school very young ones, so if they get a later dose of something, it might just be enough to establish antibody titers.

  12. I understand what you are saying re: fighting this on discrimination grounds, and I trust your assessment of that. I also understand that the law, and the Constitution specifically, does not mean in practice what I think it should mean. But here’s what I don’t understand:

    You say “You might not like it, but there is no constitutional right to a personal belief exemption.”

    Even leaving aside the whole “right to be secure in their persons, homes & effects…” part of the Bill of Rights (which I would have thought included security against forced medical treatment – but let’s say it doesn’t), what about the fact that what these mandates are doing is dramatically altering a long-established legal standard?

    For decades, children have been able to decline vaccines based on PBEs or religious exemptions, and society hasn’t fallen apart. For decades, measles has been treated as a benign childhood illness – it is not even on the list of federally quarantinable diseases!!! – so what these new laws are doing is, with no justification at all (it’s not as if measles has suddenly become a more serious illness, or we are seeing more cases than we did in the 1970s and 80s for example), altering an established legal standard that has served us well for a long time.

    I also understand that the legislative process is not a court of law. But why is it that they are able to alter, by diktat, an established legal norm? Is there no legal protection for these norms? Is there no way to challenge this sweeping change on the grounds that it violates long-held legal standards?

  13. IMO, We’re not going back to the days of 400k cases, 50,000 hospitalizations and 400 plus deaths a year when there is a vaccine which the medical establishment thinks is safe and effective. If that means the law changes via elimination of the PBE and religious exemption, as it is happening in different places, and that’s the cost of containing measles, the government including the courts will go along with it. Laws change based on changed circumstances, and it is the perception that the measles increases is due to the “antivax” movement. Legal norms change. Look what’s happening in the abortion field.
    My view is that the courts will never hold that there is a PBE or religious exemption constitutional right and that states can chose to eliminate both. Not much of a prediction since every single challenge to the elimination of that so called right in every single state has been rejected by the courts.

  14. I am reading this blog and comments with great interest from Maine.

    There have been some mentions of what is happening in Maine and I’d like to provide an update. Unfortunately, LD798 was not stopped by great effort from activists and has been signed into law by the governor. My understanding of the law is that it removes religious and philosophical exemptions for students at all schools (public and private) of all ages (infant through adult). The law goes into effect September of 2021 and vaccine requirements need to be met by that time or the student will be expelled. I believe it also extends to children attending summer camps in Maine, as well as adults who work in daycare/preschools, and adults who work in healthcare facilities (it doesn’t seem to specify what qualifies as one). It does broaden the scope of the medical exemption similar to current law in CA, but details about how this will be implemented have not been decided. Here is the link to the bill and its amendments:

    Richard, I know you must have your hands full with what is going on in CA. If you have the time, I’d love to hear your thoughts, either here or in a separate post, about what is happening in Maine and what might be done about it. Is there any hope?

    1. Kristen, you probaby won’t like what I think. I thought all the lawsuits against SB 277 which basically was your Maine bill that just passed were a waste of time, albeit probably necessary to satisfy the emotional needs of the vaccine concerned about trying to stop it legally.
      There is no recognized constitution right to a philosophical/personal belief exemtption. It just doesn’t exist. I think the state legislatures have the right and power to end it and that’s the trend. All the California cases attacking SB 277 were thrown out and upheld on appeal.

      I predict it will be the same in Maine and in Oregon, and Washington, unless there’s something different in them compared to California. New York is also in play too, I understand.
      The Constitution isn’t a suicide pact and right now, as I’ve said in many of my posts, the prevailing medical science paradigm on vaccines is against you, and until that changes, the court’s are not going to allow individuals to make personal exemption decisions, if the Legislature decides to eliminate a PBE.

      I always thought the religiious exemption was a joke, or more like a wink, wink. No established religious is against vaccination. Sure you can come up with someone wearing a religious frock of some sort, but they are outlier opinions. Only the Amish and Christian Scientists are as a religion opposed to vaccination.
      People’s minds need to be changed about vaccines, then the law will offer some protection, not the other way around, unfortunately.
      Still, the VC community will raise money for these lawsuits and they will be filed, and I’m predicting a similiar result as in California.

      There needs to be a different kind of legal attack, not a straight constitutional challenge to a PBE removal law.

      I just might have something in my back pocket to make the case and challange the hysteria and maybe the media will even cover it.
      You might hear about it next week, so stay tuned.

  15. Going back to your initial post, the following sentence –


    If the child is covered by an IEP can they attend school unvaccinated? under ada or idea?

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