A federal judge said he will take at least a week before ruling on a request to temporarily stop California’s new vaccination law, an unwelcome delay for vaccination opponents seeking a speedy injunction that would allow students who don’t meet vaccination requirements to start the new school year.
Judge Dana Sabraw said he was aware of the urgency of his ruling and asked about start dates for California schools, according to courtroom observers. Some schools in California have already opened their doors and the Los Angeles Unified School District, the largest district in the state, will begin school this week. Sabraw said he would likely issue a ruling the week of Aug. 22.
For the 2014-15 school year in Riverside and San Bernardino Counties, 95 percent of children entering kindergarten were fully vaccinated. In Los Angeles County, the rate is 90 percent. The Centers for Disease Control says a vaccination rate of at least 95 percent is necessary to provide “herd immunity” intended to protect babies too young for vaccines and those with health conditions that preclude immunization.
Rebecca Estepp, spokeswoman for Education 4 All, a Sacramento-based advocacy group that requested the temporary restraining order as part of its lawsuit seeking to overturn the law, called the delay “unfortunate” but somewhat understandable. “It’s a complicated topic,” she said. She described Sabraw’s manner during the oral arguments as “very thorough and very thoughtful” and said, “It was a fair hearing.”
The law, which took effect July 1 and is often referred to by its legislative name, Senate Bill 277, requires students who attend public or private schools or child care centers to be vaccinated against 10 serious, communicable diseases unless they have a medical exemption. Previously, unvaccinated children could attend public or private schools or child care centers if their parents stated they were opposed to vaccinations based on their personal beliefs.
Education 4 All filed suit July 1 against the California Department of Education and other state agencies charging that the law violates the right to education guaranteed in the California Constitution.
The suit, Whitlow v. the California Department of Education, was filed on behalf of Ana Whitlow, a San Diego parent of a 7th-grader and a kindergartner who does not want her children to obtain the required vaccinations, and 20 other individuals and nonprofit organizations. If granted, an injunction would temporarily reinstate the personal belief exemption to vaccination requirements while the lawsuit proceeds.
The legal complaint cites the 1971 California Supreme Court decision in Serrano v. Priest, a pivotal case concerning inequities in education, that recognized education as “the bright hope” for the poor and oppressed and noted that society “has a compelling interest in affording children an opportunity to attend school.”
The complaint continues, “But today, as a result of the enactment of Senate Bill 277, the State of California denies tens of thousands of children access to its schools and daycares and relegates them to the separate-and-unequal position of learning in isolation, in permanent quarantine.” Education 4 All is represented by lawyers James Turner and Betsy Lehrfeld of Washington, D.C.; Robert Moxley of Cheyenne, Wyoming; and Carl Lewis of San Diego.
But lawyers with the office of California Attorney General Kamala Harris argued that decades of jurisprudence have upheld the right of the state to impose vaccination requirements in service of the greater good of public health. In its written response to the suit, the state’s lawyers said that claims made by Education 4 All “disregard decades of scientific knowledge and legal precedent to advance their subjective personal beliefs” and prevent the implementation of “an important public health measure.”
Dorit Rubinstein Reiss, a professor at UC Hastings College of the Law and a proponent of the vaccination law, was in the courtroom Friday. A close observer of the legal arguments, Reiss said that the decision to grant a temporary restraining order must weigh the question of harm: the harm to public health and the state if the law is temporarily put on hold and the harm to the children whose parents choose not to have them vaccinated and who therefore must be home schooled.
She noted that Sabraw “clearly read the briefs very closely and asked thoughtful questions,” but said it was impossible to predict the judge’s decision.
In a statement, the California Department of Education said, “We can’t comment on ongoing litigation, but Superintendent of Public Instruction Tom Torlakson strongly supports vaccinating students. It’s the law, and it’s the right thing to do for public health.”