Much speculation in health circles has been unfolding regarding the possibility that parents and caregivers may take action against the vaccination program for California’s now-repealed vaccination requirement. Given the forceful support of California’s governor for these new proceedings, however, it is a foregone conclusion that this will only happen locally—to a much lesser degree than we’ve seen in other states with similar legislation.
Because of the press attention, the Department of Public Health has sent out repeated press releases reiterating the same message: California has no plan to allow vaccination exemptions in a meaningful way, and the scientific evidence supports the vaccination program.
Any number of lawsuits could potentially be filed, but the odds of turning this into a tsunami are extremely unlikely, as the legal climate surrounding vaccine rights has slowly deteriorated in recent years. In 2004, following two medical setbacks associated with the polio vaccine, the United States Supreme Court ruled, in McPherson v. Alvarez, that the Arizona legislature was not required to bring immunization exemptions before a vote in its legislature. Several other state legislatures have followed suit, despite the recommendations of the American Academy of Pediatrics and the Centers for Disease Control and Prevention (CDC).
Even though it’s arguable as to whether or not laws requiring the careful read of a yellow legal pad (and clicking of a mouse) and the approval of a physician/doctor of some kind are actually necessary in practice, it’s certain that antivaccinationists might be motivated to use the legal system to take their fight to the states. This is because the ability to sue for wrongful death and injury provides strong legal leverage to bolster public opposition to vaccinations and to prevent the vaccine program from functioning effectively.
In Michigan, two parents successfully battled for vaccine exemptions for their children last year. For more than a decade, they had refused to vaccinate their children against measles, mumps, rubella, and pertussis—despite public health officials declaring that the two diseases were prevented by the vaccination programs, as were both meningitis and polio. Both parents have now filed legal appeals with the Michigan Supreme Court (as has the state of California), claiming that public health officials overstepped their authority in providing mandatory vaccinations in an attempt to “clean up” the state. In 2017, the case was dismissed after the parents filed the contested report. Their attorney has mentioned that they will start their appeals again in 2018.
This is not the first high-profile case involving vaccine exemptions and public health officials. Last year, nearly 70 parents from Oregon challenged the way that the state’s vaccination laws are enforced, stating that parents have been falsely intimidated by the public health officials who drop by with rules and harassment at a child’s home. The case against the state and several public health officials is still in the courts, and there is a possibility that the trial may be heard in 2018.
Recently, Wisconsin’s attorney general, Brad Schimel, said that as of now, the state is not planning to pursue lawsuits against parents who refuse to vaccinate their children. However, the denial of immunity is still enough to give the impression of negligence if the illness had occurred and the child ultimately contracted the illness. Attorney general Schimel’s words remain independent of what actually happens in court, but they do signify his stance on the issue.
California’s history in the immunity defense might give the impression that the state is not committed to providing vaccines for public health reasons. However, a more accurate assessment is that California’s recent climate of legislation is so peculiar that it bodes well for the state. Legislation goes nowhere without the support of the governor, and it will be a dramatic turn if California’s bill is signed into law.
“We don’t think there’s any more there than that,” Dr. Gerald Robinson, senior physician in the division of communicable diseases at Toronto’s Hospital for Sick Children, told The Toronto Star. “It’s exactly what you would expect. It’s the province’s position and we think there is no mechanism in place for them to get out of this.”
Whether or not the governor signs the bill into law is uncertain, but either way, Ontario’s status as a single-payer state is allowing for more flexibility than California’s. Ontario is the only province in Canada without some form of law on the books