On Monday, Bexis blogged about a very bad vaccination decision — bad in its reasoning and bad in its maleficent effect on vaccine policy in this country. Over the past couple of years, we’ve written quite a few posts on vaccination cases. The law in this area has gotten a vigorous workout largely because of Covid-19, of course. That particular vaccine became a subject of massive political debate for reasons that seem entirely stupid to us.
Why stupid? Let us count the ways. First, the biggest vaccine haters are often supporters of the former President, whose administration did a lot to hasten development of the Covid vaccine. Second, the distrust of the Covid vaccine is largely premised on ignorance and conspiracy mongering. Third, the claims that Covid vaccine mandates undermine the Bill of Rights not only ignore logic, they ignore clear precedents involving other vaccines.
Indeed, we think that observing the treatment of other vaccines, free of the fog of political warfare, might help clarify thinking on vaccine mandates. Perhaps people can at least doff their tin foil hats temporarily.
In Goe v. Zucker, 43 F.4th 19 (2d Cir. 2022), the Second Circuit reviewed a proposed class action challenging the scope of medical exemptions to New York’s mandatory school immunization requirements. Prior to June 2019, New York allowed exemptions from the immunization requirements for both nonmedical and medical reasons. But after a big measles outbreak, New York repealed the nonmedical exemption (as we said in our vaccine post last week: yay) and clarified the medical exemption. The plaintiffs filed a lawsuit, contending that the new vaccine regulations violated their fourteenth amendment due process rights, as well as section 504 of the Rehabilitation Act, 29 USC section 794. The district court dismissed the complaint and the plaintiffs appealed to the Second Circuit.
Under the new immunization regulation, a child will be exempted from the vaccination requirement if a state-licensed physician “certified that such immunization may be detrimental to [the] child’s health.” The certification must contain “sufficient information to identify a medical contraindication to a specific immunization.”
The plaintiffs in Goe claimed that their kids suffered from diseases and disabilities that impaired their immune systems. Some also claimed family histories of adverse reactions to vaccines. Most of the plaintiff requests for exemptions were denied. The grounds supplied for such denials were usually along the lines of lack of specificity.
And then just like that we are plunged into constitutional law. The plaintiffs attacked the new immunization regulations both on their face and as applied.
In their facial challenge, the plaintiffs claimed that the regulations interfered with the fundamental right to education. Surprisingly, the Second Circuit interpreted SCOTUS precedent to mean that, while education is an important right, it is not fundamental. That classification, along with the venerable Jacobson vaccination case decided by SCOTUS in 1905, takes the due process analysis away from strict scrutiny and, instead, into a rational basis inquiry as to whether the regulations were reasonably related to a legitimate government objective. It is hard, though not impossible, for government laws or regulations to flunk the rational basis test. This regulation did not flunk. The Second Circuit held that the limitation of exemptions to medical reasons and the state’s delegation of enforcement to school authorities were reasonably related to a legitimate state objective. The measles vaccine is effective, and the regulations “seek to ensure that the risk of harm to a child from vaccination is genuine.”
The plaintiffs’ as-applied challenge fared no better. The first amended complaint did not plausibly allege that the school officials engaged in conduct that was “outrageous,” “arbitrary,” “irrational,” or “conscience shocking.” There was no constitutional deprivation in sight.
Aside from the constitutional claims, the plaintiffs argued that New York’s new vaccination regulations violated the Rehabilitation Act by excluding children from school because of their “disabilities,” namely, their inability to take the measles vaccine safely. As a threshold matter, the Rehabilitation Act does not provide for individual capacity suits against state officials. The district court’s dismissal could be upheld on that ground alone.
Turning to the merits, the regulations do not single out students with disabilities; they are generally applicable. If a student truly had a medical reason not to take the measles vaccine, the regulations provide for an exemption upon demonstration of medical need “based on evidence (and not merely say so).” That scheme is “consistent with a nationally recognized evidence-based standard of care.” In sum, the plaintiffs’ children “were denied medical exemptions not because of their disabilities, but because they admittedly failed to comply with the new procedures, which, as we have concluded above, are reasonably related to furthering a legitimate state objective.”
The vaccine regulations were rational. They were evidence-based. The attacks on those regulations were neither.