Whitlow v. California, CASE NO. 16cv1715 DMS (MDD)

• Decision Date: 26 August 2016
• Docket Number: CASE NO. 16cv1715 DMS (MDD)
• Citation: 203 F.Supp.3d 1079
• Parties: Ana WHITLOW, Individually and as Parent and Next Friend of B. A.W. and D.M. F.-W., minor children, et al., Plaintiffs, v. State of CALIFORNIA, Department of Education, et al., Defendants.
• Court: U.S. District Court — Southern District of California

203 F.Supp.3d 1079

Ana WHITLOW, Individually and as Parent and Next Friend of B. A.W. and D.M. F.-W., minor children, et al., Plaintiffs,

v.State of CALIFORNIA, Department of Education, et al., Defendants.

CASE NO. 16cv1715 DMS (MDD)

United States District Court, S.D. California.

Signed August 26, 2016

Carl Michael Lewis, Law Offices of Carl M. Lewis, San Diego, CA, James S. Turner, Swankin & Turner, Washington, DC, Kimberly Marie Mack Rosenberg, Law Office of Kimberly Mack Rosenberg, New York, NY, Robert Thomas Moxley, Robert T. Moxley PC, Cheyenne, WY, for Plaintiffs.

Jonathan E. Rich, Office of the Attorney General, State of CA Department of Justice, Los Angeles, CA, Amber R. Holderness, Santa Barbara County Counsel, Mary Pat Barry, Office of County Counsel, Santa Barbara, CA, for Defendants.

ORDER DENYING PLAINTIFF'S MOTION FOR PRELIMINARY INJUNCTION

HON. DANA M. SABRAW, United States District Judge

This case involves a challenge to California's Senate Bill ("SB") 277, which repealed the personal belief exemption ("PBE") to California's immunization requirements for children entering public and private educational and child care facilities in the State. Plaintiffs are a group of seventeen parents and their children that reside throughout the State of California, and four non-profit corporations. Defendants include the California Department of Education and Department of Public Health, among others. In their First Amended Complaint ("FAC"), Plaintiffs allege SB 277 violates their federal and state constitutional rights and federal and state statutory law.

On July 15, 2016, Plaintiffs filed the present motion seeking to preliminarily enjoin the State from enforcing SB 277. In support of the motion, Plaintiffs allege SB 277 violates their rights to free exercise, equal protection, due process and education, as well as the Individuals with Disabilities in Education Act ("IDEA"), Section 504 of the Rehabilitation Act of 1973 ("Section 504") and the Americans with Disabilities Act ("ADA"). Defendants filed responses to the motion, and Plaintiffs filed a reply.

The motion came on for hearing on August 12, 2016. James S. Turner, Kimberly Rosenberg, Robert Moxley, Betsy Lehrfeld and Carl Lewis appeared for Plaintiffs, Jonathan Rich and Jacquelyn Young appeared for the State Defendants and Mary Pat Barry appeared for Defendants Takashi Wada, M.D. and Charity Dean, M.D.¹

I.BACKGROUND

SB 277 was enacted on June 30, 2015. In enacting SB 277, the California Legislature declared its intent was:

to provide:

(a) A means for the eventual achievement of total immunization

of appropriate age groups against the following childhood diseases:

(1) Diphtheria.

(2) Hepatitis B.

(3) Haemophilus influenzae type b.

(4) Measles.

(5) Mumps.

(6) Pertussis (whooping cough ).

(7) Poliomyelitis.

(8) Rubella.

(9) Tetanus.

(10) Varicella (chickenpox ).

Cal. Health & Safety Code § 120325(a)(1)–(10). SB 277 amended this section of the California Health and Safety Code to declare the Legislature's intent, but otherwise left undisturbed the prior law's vaccination

requirements for school-aged children in California. In particular, SB 277 removed a parent's ability under prior law to opt-out of the State's vaccination requirements based on that parent's personal beliefs.² The law now provides that if a parent had on file or filed a PBE prior to January 1, 2016, his or her child could be enrolled in school or day care, unless that child was at a "checkpoint," i.e. , was a first-time enrollee in day care or kindergarten or was enrolling in the seventh grade. Cal. Health & Safety Code § 120335(g). Those first-time enrollees and students entering seventh grade are no longer allowed admission to the State's public and private schools and day care centers unless they have complied with the vaccination requirements.

Cal. Health & Safety Code § 120335(g)(3). Plaintiffs estimate there are 33,000 children that fall into this category, and are being denied enrollment as a result of SB 277.

SB 277 provides three exemptions to the vaccination

requirements at issue: One for medical reasons, Cal. Health & Safety Code § 120370(a), one for children in a ‘home-based private school or ... an independent study program[,]" Cal. Health & Safety Code § 120335(f), and one for students who qualify for an individualized education program, or IEP. Cal. Health & Safety Code § 120335(h).

II.DISCUSSION

For more than 100 years, the United States Supreme Court has upheld the right of the States to enact and enforce laws requiring citizens to be vaccinated. Jacobson v. Commonwealth of Massachusetts , 197 U.S. 11, 27, 25 S.Ct. 358, 49 L.Ed. 643 (1905) ; Zucht v. King, 260 U.S. 174, 43 S.Ct. 24, 67 L.Ed. 194 (1922). In 1902, the Board of Health in Cambridge, Massachusetts enacted a regulation to that effect, and the State thereafter filed a criminal complaint against Mr. Jacobson for failing to comply with the regulation. In his defense, Mr. Jacobson argued that the law was unconstitutional. In particular, he argued,

that his liberty is invaded when the State subjects him to fine or imprisonment for neglecting or refusing to submit to vaccination

; that a compulsory vaccination law is unreasonable, arbitrary and oppressive, and therefore, hostile to the inherent right of every freeman to care for his own body and health in such a way as to him seems best; and that the execution of such a law against one who objects to vaccination, no matter for what reason, is nothing short of an assault upon his person.

197 U.S. at 26, 25 S.Ct. 358. The Court rejected that argument. Speaking for the Court, Mr. Justice Harlan stated,

the liberty secured by the Constitution of the United States to every person within its jurisdiction does not import an absolute right in each person to be, at all times and in all circumstances, wholly freed from restraint. There are manifold restraints to which every person is necessarily subject for the common good. On any other basis organized society could not exist with safety to its members. Society based on the rule that each one is a law unto himself would soon be confronted with disorder and anarchy. Real liberty for all could not exist under the operation of a principle which recognizes the right of each individual person to use his own, whether in respect of his person or his property, regardless of the injury that may be done to others. This court has more than once recognized it as a fundamental principle that "persons and property are subjected to all kinds of restraints and burdens, in order to secure the general comfort, health, and property of the State; of the perfect right of the legislature to do which no question ever was, or upon acknowledged general principles ever can be made, so far as natural persons are concerned."

Id. (citations omitted). The Court further stated, "a community has the right to protect itself against an epidemic of disease which threatens the safety of its members[,]" id. at 27, 25 S.Ct. 358, and "it was the duty of the constituted authorities primarily to keep in view the welfare, comfort, and safety of the many, and not permit the interests of the many to be subordinated to the wishes or convenience of the few." Id. at 29, 25 S.Ct. 358. The Court concluded that the statute was a proper exercise of the legislative prerogative and that it did not deprive Mr. Jacobson of his constitutional guarantees of personal and religious liberty.

Seventeen years later, the Court considered another mandatory vaccination

law, this time one aimed at schoolchildren. Zucht, 260 U.S. 174, 43 S.Ct. 24, 67 L.Ed. 194. There, the plaintiff's children were excluded from a Texas public school because they were not vaccinated. The plaintiff argued that the laws violated her rights to due process and equal protection under the United States Constitution, but the Court rejected those arguments. Relying on Jacobson , the Court stated it was long-ago "settled that it is within the police power of a State to provide for compulsory vaccination." Id. at 176, 43 S.Ct. 24.

Even outside the context of vaccination

laws, the Supreme Court has reiterated that fundamental rights under the First Amendment to the United States Constitution do not overcome the State's interest in protecting a child's health. Specifically, in Prince v. Massachusetts , 321 U.S. 158, 64 S.Ct. 438, 88 L.Ed. 645 (1944), the Court stated: "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." Id. at 166–67, 64 S.Ct. 438.

Although the Ninth Circuit has yet to decide a case involving a challenge to a mandatory vaccination

law, two other Circuits and the California Supreme Court have decided such cases. Phillips v. City of New York , 775 F.3d 538 (2d Cir.), cert. denied , ––– U.S. ––––, 136 S.Ct. 104, 193 L.Ed.2d 37 (2015) ; Workman v. Mingo County Bd. of Ed. , 419 Fed.Appx. 348, 356 (4th Cir. 2011) ; Abeel v. Clark, 84 Cal. 226, 24 P. 383 (1890). In Workman , the plaintiff argued that a local school board in West Virginia violated her rights to free exercise, equal protection and substantive due process when it refused to admit her daughter to public school without the immunizations required by state law. The court rejected all of those arguments, relying principally on Jacobson , Zucht and Prince. In Phillips , the plaintiffs argued that a New York law requiring mandatory vaccination of school children violated their rights to due process, free exercise and equal protection. As in Workman , the court rejected the plaintiffs' substantive due process claim, stating it was "foreclosed by the Supreme Court's decision in Jacobson [.]" 775 F.3d at 542. The court also rejected the plaintiffs' free exercise claim, following the reasoning of Workman , "that a parent ‘cannot claim freedom from compulsory vaccination for the child more than for himself on religious grounds. The right to practice religion freely does not...