NY federal court hands triple loss to anti-vaccination ideology

vacccine preventable disease plane ride away

The state of New York allows religious and medical (but not philosophical) exemptions from school vaccination mandates. New York City has a policy of excluding unvaccinated schoolchildren from classes when there is an outbreak of vaccine-preventable disease reported in a particular school. Two sets of parents whose children had religious exemptions sued New York City and the state in federal court when their children were temporarily excluded from school under the policy, in some cases for up to a month. In other words, they were demanding that their unvaccinated children be allowed to attend even though there was an outbreak of vaccine-preventable disease at the school.

These cases were consolidated with another filed by parents, the Checks, who claimed their child had been improperly denied a religious exemption. The parents had applied for a medical exemption, which was denied, as well as a religious exemption, which was granted, but then revoked. (The record is somewhat confusing on this sequence of events, but that sequence is not relevant to our discussion.) The unvaccinated child was ultimately sent to a private school, even though she should have been excluded from admission under New York City law there as well.

Last week, a federal judge dismissed all three cases (they had been consolidated and assigned to one judge) in an opinion holding that neither the students’ nor the parents’ constitutional rights were violated, including their First Amendment right to free exercise of religion. The plaintiffs have filed an appeal.

The New York Times provided some interesting stats as background for its story on the lawsuits. New York City schools granted 3,535 religious exemptions in 2012-13. Public and private schools in the city have an overall immunization rate of around 97 percent, but 37 private schools were below 70 percent. According to Daniel Salmon, deputy director at the Institute for Vaccine Safety at the Johns Hopkins Bloomberg School of Public Health, the rate of immunization necessary to maintain herd immunity for measles, which is highly contagious, is 95%.

(There are over 300 comments to the story. I couldn’t wade through all of them, but the supporters of vaccination and science were in a clear lead over the anti-vaxxers and pseudoscientific rhetoric when I left off. It was encouraging to see the SBM-style rejoinders posted against the same shop-worn arguments trotted out by the anti-vaxxers.)

A 1905 case defeats ideology (again)

No new legal ground was broken here. The court simply relied on well-established U.S. Supreme Court and appellate court precedent, including the 1905 Supreme Court decision in Jacobson v. Massachusetts. It took the court less than 6 pages to dismiss the constitutional claims in their entirety for failure to state a claim upon which relief could be granted. (State law claims were dismissed as well, on jurisdictional grounds.) This means that, even accepting everything the plaintiffs said in their complaints as true, the plaintiffs cannot win. Metaphorically, they didn’t even make it to first base. They struck out entirely.

In fact, the case is interesting for being so uninteresting legally. We are so accustomed to hearing overwrought declarations of “parental rights” to make “informed choices” that we might forget just how solid the constitutional precedent is in upholding a state’s authority to require vaccination against disease to protect the public’s health, safety and welfare. States are not constitutionally required to allow non-medical exemptions at all. (Mississippi and West Virginia permit only medical, but not religious or philosophical, exemptions.)

That the court was able to so handily reject these claims is a testament to just how well-settled the law is in this area. It is also a demonstration of why anti-vaccination and other “parental rights” activists would love to haul Jacobson before the U.S. Supreme Court and argue that it should be overturned, or at least modified. The case (and its progeny, such as Prince v. Massachusetts) has served for over a century as a brake on parents who attempt to impose their religious and “philosophical” belief system at the risk of their children’s (and your) health. The case is an inconvenient barrier between them and their ideological goals.

For the record, in Jacobson, the Supreme Court upheld a $5 fine imposed by Massachusetts on a man who disobeyed an order to vaccinate during a smallpox outbreak. Jacobson’s claims were not unlike those we here from anti-vaccinationists to this day:

The defendant offered to prove that vaccination “quite often” caused serious and permanent injury to the health of the person vaccinated; that the operation “occasionally” resulted in death; that it was “impossible” to tell “in any particular case” what the results of vaccination would be or whether it would injure the health or result in death; that “quite often” one’s blood is in a certain condition of impurity when it is not prudent or safe to vaccinate him; that there is no practical test by which to determine “with any degree of certainty” whether one’s blood is in such condition of impurity as to render vaccination necessarily unsafe or dangerous; that vaccine matter is “quite often” impure and dangerous to be used, but whether impure or not cannot be ascertained by any known practical test; that the defendant refused to submit to vaccination for the reason that he had, “when a child,” been caused great and extreme suffering for a long period by a disease produced by vaccination; and that he had witnessed a similar result of vaccination not only in the case of his son, but in the case of others.

The Supreme Court specifically rejected a claim that Jacobson’s substantive due process rights were infringed and the case has subsequently been interpreted as precluding a First Amendment challenge to school vaccination mandates as well.

Attack of the “pharma trolls”

What is far more interesting than the legal issues is how the court record in the Check case reveals the extent to which anti-vaccine activism and the spread of misinformation is fueling parents’ fears, resulting in their decisions not to vaccinate and to claim exemptions for their children. (For the rest of this post, we’ll focus solely on the Check case.)

The Checks, as well as the other parents, were represented by Patricia Finn, an anti-vaccination activist/lawyer. According to her website, Patricia Finn, P.C., is “a Vaccine Injury and Exemption litigation firm” which “represents thousands of parents and children throughout the United States.” This has not escaped our friend Orac’s notice.

Ms. Finn is apparently reveling in the attention conferred on her by the Times story. One has to admire her cheerfulness in the face of a total loss in three cases, all on the same day. Here’s her June 23 entry on her Facebook page:

Time to respond to the pharma trolls pounding away at this story in the NY Times…please take a minute to comment with the real facts, and share this story with everyone you know…let’s flood the comments the same way they do with our proof…our stories. Bring It On!!*

“Pharma trolls” apparently being anyone whose comments in the Times do not reflect adherence to the anti-vaccination ideology.

Ms. Finn’s tendency to see Big Pharma as omnipotent is not limited to her Facebook page. From her blog, under the tab “Vaccination Law:”

The practice of vaccinating is dangerous. People are being deluged with vaccines because of fear mongering and profit. Mobilizing a global community to line up and inject should not be taken lightly, after all what if it is indeed weird science out of control, terrorism or maybe just a dose of bad shots because the contractors making and transporting the vaccines were skimming [sic] on ingredients, safety controls or refrigeration because it simply cost too much to adhere to pesky safety standards and formulas. Cutting corners might save a few bucks also. And what if the Pharma factory workers simply don’t like Americans and could care less if the shot is safe? The ProVax Choice community is not saying you can’t get the shot if you want it, but it is saying do so with caution because others could be affected.

I’ll rest my case with that quotation.

Her client, Dina Check, blames the devil instead of Big Pharma. She explained her opposition to vaccination to the Times thusly:

… she rejected vaccination after her daughter was ‘intoxicated’ by a few shots during infancy, which she said caused an onslaught of food and milk allergies, rashes and infections. Combined with a religious revelation she had during a difficult pregnancy, she said, the experience turned her away from medicine. Now she uses holistic treatments.

“Disease is pestilence,” Ms. Check said, “and pestilence is from the devil. The devil is germs and disease, which is cancer and any of those things that can take you down. But if you trust in the Lord, these things cannot come near you.

So, there you go. Your disease is your fault because you didn’t trust in the Lord. This type of thinking is, of course, prime raw material for making one into a poster child for the anti-vaccine movement. Other statements by Ms. Check made part of the court records reveal the hand of both the anti-vaccine misinformation machine and pseudomedicine as guiding her decisions.

(The name of Ms. Check’s child is redacted from the court’s records to protect her privacy, but she is referred to as “Mary” on Ms. Finn’s Facebook page, so that is what we will call her as well.)

According to the court records, Ms. Check says that Mary began life with medical problems, including what she describes as a “compromised immune system.” Apparently frustrated by conventional medicine, she turned to “holistic” medicine. She states that all vaccines contain “toxic chemicals that are injected into the bloodstream by vaccination” and views vaccination as “injecting diseases” and “poisons” into her daughter’s immune system, a view she repeats throughout the court record. She describes the vaccine manufacturing process as being “cultured on tissues from monkeys, chicks or aborted fetuses, which have produced antigens which cannot be filtered out.”

There are two interesting printed forms, at least one downloaded from the internet, all neatly typed up and complete with lines for signature and notarization, signed by the Checks and attached to their request for a religious exemption. In these, the Checks state that “one or more aspects of vaccination . . . are in violation of more or more doctrines of at least (5) of the world’s major religions.” The forms also make these alarming and utterly false statements:

It is an uncontested scientific fact that a minimum of 90% of today’s public health achievements originated in the improvements in sanitation, nutrition, hygiene and insect control which preceded both specific vaccination and antibiotics.

No adequate scientific study has ever proved that vaccines give a net benefit to the recipients. For certain diseases, it is beyond controversy that UNVACCINATED children have a considerable advantage over their vaccinated counterparts.

All vaccines are harmful and do not protect anyone form [sic] disease.

You’ll see some of these same ideas from an M.D. later in the record.

Although she describes herself and her family as deeply devout practicing Catholics, and the church’s teachings as the source of her religious objections to vaccination, Catholic doctrine does not, to my knowledge, prohibit or even discourage vaccination. In reading all of this, it is difficult to tell where the Checks’ genuine religious beliefs leave off and the incorporation of anti-vaccination junk science steps in to fill in the blanks.

In any event, the City denied the request because “it does not substantiate a finding that you hold genuine and sincere religious beliefs which are contrary to immunization.”

The medical experts weigh in

A request for a medical exemption from all required vaccinations for Mary was denied by the City as well, after a review by a Department of Health physician, because “the documentation provided by your child’s health care provider does not meet nationally recognized standards for medical contraindication of immunization.”

The medical exemption form was signed by a Michael Gabriel, M.D., and is all but illegible. It refers to “health problems related to foods” and “GI issues and illnesses,” but that is about all I could make out concerning his diagnosis.

There are only two MDs licensed to practice in NY named Michael Gabriel and I am betting Mary’s doctor is (or, at least, was) Michael E. Gabriel, who runs the PATH Family Center on Staten Island, where the Checks live. You are free to draw your own conclusions. According to its website, the Center offers integrative and nutritional interventions for individuals diagnosed with autism, attention deficit hyperactivity disorder, food allergies and other related conditions. As well:

We discover the underlying problems through a series of lab tests. The team then creates a custom nutritional protocol with diet plans and integrative guides that begin the process of recovery, as well as offering educational guidance. We also offer Hyperbaric Oxygen Therapy which is used for a variety of illnesses, including Lyme Disease, Microcephaly, Crush injuries, Multiple Sclerosis, Traumatic Brain Injuries, Cerebral Palsy, Autism and many more.

It is true that HBOT is used for a “variety of illnesses,” but this list suggests Dr. Gabriel is going way beyond the evidence.

Dr. Gabriel offers a “Bio Med 101” class:

In this class Dr. Gabriel will review what the concept of DAN [“Defeat Autism Now!”] is and how we will mix it with medicine. Dr. Gabriel will review the importance of the Gut and yeast overgrowth and the need for enzymes, probiotics, and a yeast protocol.

The Center also offers “detoxification,” although further information is not available on the website.

To top things off, the plaintiffs filed a Motion for Reconsideration of the court’s ruling. For some inexplicable reason, the Motion was filed after their Notice of Appeal, which divests the district court of jurisdiction over the case, a bit of procedural law duly noted by the judge in summarily denying the motion. Plaintiffs based this motion on “new evidence” including an “expert report” from Yehuda Shoenfeld, MD, an Israeli physician. (Dr. Schoenfeld has not escaped Orac’s notice either.)

As best I can tell, Dr. Schoenfeld thinks that the risk of an autoimmune response to vaccines is underrated and goes on to tell us why. I have no idea whether he is correct or not. I will leave that to others. However, he doesn’t come out and say that Mary is at risk from such a reaction, or explain what his explication of autoimmune response has to do with Mary’s case. Rather, he simply makes the conclusory statement that he agrees with Dr. Gabriel.

Whatever might be the merits of Dr. Schoenfeld’s other theories, he goes dead wrong with this one and jumps right in with the conspiracy crowd:

There is little proof that vaccines are responsible for eradicating disease even when heard [sic] immunity vaccination levels have been reached. . . . Long-range historical data shows that vaccines are not responsible for the decline of heath rates from infectious disease. . . Pertussis is now hot news and the unvaccinated interrupting herd immunity is raised over and over, despite the science that shows the vaccinated are by far and away the most affected by whooping cough. Evidence to the contrary of the value of vaccination is consistently snuffed out and kept away from the mainstream media, so that the herd never hears a peep of the truth. Instead, they get the “herd immunity” sound bite, which gives unserved credit to the risk-benefit ratio of vaccination. Inside the web of half-truth and misinformation, the vaccine advocates somehow justify the public display of resentment and fear of the unvaccinated.

As noted, an appeal has been filed. In a very similar 2010 case, one cited by the district court in this case, the Second Circuit Court of Appeals (where this case will be heard) ruled against the plaintiffs, who were represented by Ms. Finn. The U.S. Supreme Court declined to hear the case, thereby defeating Ms. Finn’s goal of getting rid of Jacobson and the long line of cases following it. No doubt she is hoping for a second bite at the apple here.

And what happens to Mary?

So there you have it. Mary Check, conscripted by adults as an underage foot soldier in the vaccine wars, some of whom are clearly driven by an anti-vaccination ideology that rests on a shaky foundation of bad science and Big Pharma conspiracy theory. Mary apparently has very real health issues, although it’s not clear what the diagnosis is, and yet she goes about unvaccinated against serious and potentially deadly diseases, such as polio, pertussis, hepatitis, tetanus, pneumonia, varicella, diphtheria, influenza, measles, mumps, rubella, and meningitis. And she lives in New York City, where, probably more than anywhere else in the entire country, a vaccine-preventable disease is just a plane ride away. How could anyone possibly think this is in Mary’s best interests? I certainly don’t, but it’s not my call.

Posted in: Critical Thinking, Legal, Politics and Regulation, Public Health, Religion, Vaccines

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