Vaccine exemption bill passes, legal challenges await

SACRAMENTO -- Vocal anti-vaccine activists were unable to stop the passage of a bill cracking down on medical exemptions for school children. But it is a near certainty that some will take their fight against SB 276 to the courts.

"I can all but guarantee that there will be lawsuits, if nothing else just based on the history of what happened after SB 277 passed," said Rick A. Jaffe, a Sacramento attorney who often represents doctors before the California Medical Board.

Passed in 2015, SB 277 cut down on personal belief exceptions that many parents had been using in order to send their unvaccinated children to public schools. SB 276, which would put new limits on medical exemptions granted by doctors, passed the Senate on Wednesday on a 28-11, mostly party-line vote.

The challenges to SB 277 have all failed so far. The most-watched case was probably Love v. Board of Education, 2018 DJDAR 11622 (Cal. App. 3rd, filed Nov. 15, 2017), in which a unanimous appellate court rejected a constitutional challenge to the law.

Jaffe said he fully expected this and other challenges to SB 277 to fail, due to the Legislature's broad power to enact "regulations they feel are in the public interest."

But he said it may be easier to make a legal and constitutional case against SB 276, based on interference in the doctor/patient relationship. However, recent amendments to the bill may also make a legal challenge more difficult.

The floor debate was passionate, as were the regular interruptions from those who call themselves "vaccine concerned." Activists disrupted an unrelated press conference about immigration policy hours before the vote. Assembly leaders brought the bill up for a surprise vote on Tuesday in order to avoid disruptions.

Multiple senators noted the Aug. 21 incident when a vocal vaccine critic pushed Sen. Richard Pan, D-Sacramento, a pediatrician and the author of both bills, on the street. Pan filed a request last week for a restraining order against the man. Pan v. Bennett, 70006362 (Sac. Super. Ct., filed Aug. 28, 2019).

But Senate critics still took aim at the bill. Sen. Jeff Stone, R-La Quinta, noted that as a pharmacist he knows vaccines "have saved millions of lives." He was also a co-author of SB 277, but voted no this time.

"When we passed SB 277 we made some promises," Stone said, before arguing that making it more difficult to get a medical exemption violated one of those promises.

Pan began his Senate floor presentation with a rundown of amendments that were added while the bill passed through the Assembly. These focus the bill on making sure school districts maintain a vaccination rate above 95% and provide for an appeals process that would allow a child to stay in school another 30 days if their medical exception is rejected.

The bill also focuses attention on the small group of doctors who have been handing out the most exemptions. Physicians would be barred from charging a fee solely for writing an exemption. The revised bill also creates an expert review panel that would go over medical exemptions, including an automatic review of doctors "who have submitted five or more medical exemptions in a calendar year."

These changes could undercut the argument that the regulations are onerous or unreasonable, Jaffe said. One exception, he added, could be the five-exemption rule. He noted that as few doctors have been willing to sign exemptions, the few who do are writing more.

But Jaffe added that he is representing a doctor in a case in San Francisco that could open up a new front against SB 276 -- the assertion that the state is exceeding its authority in intervening in the doctor-patient relationship. He is representing Dr. Kenneth Stoller, who was hit by an administrative subpoena from San Francisco City Attorney Dennis Herrera for allegedly writing fraudulent medical exemptions in violation of SB 277. Stoller v. Herrera, CGC19576439 (SF Super. Ct., filed June 4, 2019).

In the complaint, Jaffe argued Herrera has failed to show the exemptions were fraudulent: "California law currently gives physicians complete discretion to issue medical exemptions beyond CDC guidelines, including family history and genetic considerations."

In other Legislative news Wednesday, Gov. Gavin Newsom signed AB 330, a bill that calls on the Judicial Council to create a pilot program to grant civil counsel to low-income litigants in child custody cases.