As California’s new law requiring almost all children entering day care, kindergarten or 7th grade to be vaccinated against various diseases took effect Friday, opponents filed a federal lawsuit seeking to have the law overturned.
The suit, filed by six parents and four advocacy groups in U.S. District Court in San Diego, argues that the law violates the California Constitution’s guarantee of a public education for all children. It also claims the law violates the rights to, among other things, equal protection and due process guaranteed by the U.S. Constitution.
The law "has made second-class citizens out of children who for very compelling reasons are not vaccinated according to the [Centers for Disease Control and Prevention] schedule," said plaintiffs’ attorney Robert Moxley.
Interview highlights with AirTalk callers and guests Robert Moxley, a Wyoming-based attorney representing plaintiffs in a lawsuit against California over SB 277, and Michelle Mello, professor of law at Stanford Law School.
What are the prospects of this lawsuit?
Michelle Mello: Legally, the footing is very fragile. The complaint has a long laundry list of claims. ... Unfortunately, there’s very little precedential reason to think that any of these will find footing in the court.
Do you think the U.S. Constitution has bearing here?
Mello: There is, in a sense. The due process clause of the 5th and 14th amendments, which is one of the bases on which this lawsuit is being brought, asks courts to balance interests whenever somebody’s liberty is being limited. So the state’s interest is being balanced against the interest of the burdened individuals. Here the state’s interest is in public health generally. ... And when the courts have done that in the case of vaccination mandates, the decision has routinely been in favor of the schools.
How are children who are not vaccinated not a risk to other kids? If an unvaccinated child gets measles, doesn’t that increase the likelihood of the disease spreading in a school?
Robert Moxley: The whole idea of having 97 percent vaccination, which is what California already has, is that so-called “herd immunity” will prevent the spread [of disease]. It’s hypothetical and it’s fear-mongering [to require vaccinations]. The chance of anything like that actually happening with the rates of vaccination that California has already achieved are infinitesimally small.
Quiana in the West Adams district has two sons under the age of 6 and said she won’t vaccinate her children, even if it means she has to move to another state.
Quiana: Home schooling is an option. It’s not something I really want to do. I’ve been at home with my sons since my first son was born, and I’m looking to get back into the workforce. But if I have to, I will stay home. Vaccination is not an option for me, and if I don’t want to do the homeschooling thing, my husband and I are completely willing to move.
Stephanie in Manhattan Beach said she hasn’t decided whether she will vaccinate her son.
Stephanie: The frustrating thing is not vaccinating him for something like chicken pox, which I don’t see as a public health risk, and then having to keep him home from school. So far, we’ve kept him out of preschool.
Robert Moxley, Wyoming-based attorney representing plaintiffs in lawsuit against CA over SB 277
Michelle Mello, Professor of Law at Stanford Law School and Professor of Health Research and Policy at Stanford University School of Medicine