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October 27, 2020 Big Pharma Legal News


Court Denies Injunctive Relief, Plaintiffs Will Appeal in NY Medical Exemption Lawsuit

Court won’t allow unvaccinated medically fragile children to even participate in online learning pending the lawsuit’s outcome.

On Oct. 22, the U.S. District Court for the Northern District of New York denied injunctive relief to the families challenging the state’s overly narrow medical exemption regulation in Jane Doe, et. al v. Howard Zucker et. al.

The court refused to allow medically fragile children, whose licensed medical providers have submitted certifications stating that they are at risk of serious harm or death from a vaccine, to participate even in online learning pending this litigation’s outcome. Some plaintiffs have already lost one or more family members to death from proven adverse vaccine reactions. Many have suffered severe, documented vaccine injuries.

The court would not consider these facts or U.S. Supreme Court jurisprudence defining the unconstitutionality of the practices challenged. Plaintiffs’ attorneys intend to appeal. 

As plaintiffs’ briefs and arguments repeatedly emphasized, a medical exemption to an otherwise permissible health regulation is a constitutional guarantee for those at risk. That guarantee doesn’t just implicate liberty — it goes to the very right to life itself. The U.S. Supreme Court has recognized this right for more than 115 years. 

Even in the landmark 1905 case of Jacobson v. Massachusetts, which defendants rely on, the Supreme Court held that while the state may have a right to mandate vaccination during an emergency, this right does not extend to requiring individuals at risk of harm to submit. The court recognized that where an individual has a medical condition making vaccination dangerous, the court has a duty to independently review those claims to protect the individual.

Subsequent case law has defined the circumstances under which a state may burden medical exemptions. Fifty years ago, in Doe v. Bolton, the Supreme Court expressly recognized that people have a fundamental right to a medical exemption even from otherwise lawful health regulations. According to the Supreme Court, if any state-licensed physician certifies that a medical exemption is necessary, the state cannot require more — additional corroboration, a review process or limitations on the physician’s judgment. The Supreme Court sympathized with the state’s reasons for wanting to protect its compelling interests but ultimately decided that the patient’s right to decide with her chosen physician, free from state interference, takes precedence so long as the state has licensed the physician. The U.S. Supreme Court decided: “If a physician is licensed by the state, he is recognized by the state as capable of exercising clinical judgment.” 

New York’s statutory medical exemption reached what Doe allows by stating that if any physician licensed in New York State certifies that an exemption may be detrimental to a child’s health, that child must be exempt from vaccination. Defendants’ decision to craft a regulation and policies to undercut medical exemptions cannot stand.

Specifically, plaintiffs challenge the state regulation that attempts to predefine what a doctor can consider in deciding that a vaccine “may cause harm” to those contraindications and precautions that the Centers for Disease Control (CDC) endorses. The CDC itself acknowledges that these guidelines cannot serve as an exhaustive list or define valid medical exemption limits. Worse, the regulation empowers school principals to overrule treating physicians with or without consulting medical professionals if they believe the child’s condition does not fall under the complex guidelines.

The court sidestepped this analysis by stating that families have the alternative of homeschooling. The court reasoned that an education is not a “fundamental right,” and so the state can burden it in this way. The judge asserted that the case is not likely to succeed and thus decided not to issue a preliminary injunction.

Since Brown v. Board of Education, even though a state may or may not have an absolute responsibility to provide public education, once provided, a state cannot arbitrarily take it away from protected subgroups, such as medically fragile children. Moreover, it is well-recognized that a state cannot condition public benefits on people giving up other constitutionally protected rights, such as the right to a medical exemption.

Plaintiffs’ attorneys will file an appeal shortly.

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