Win in New York Vaccine Mandate Case

The Good Health Lawyer Continues to
Win in New York Vaccine Mandate Case

Informed Consent owes a debt of thanks to the Good Health Lawyer, Patricia Finn, Esq., of Rockland County, NY [1], who has achieved one of the few recent vaccine choice court victories. Earlier this year she obtained a Temporary Restraining Order (TRO) for a family allowing an unvaccinated child to attend school in New York despite the absurd – and illegal – “mandate” issued by the New York State Department of Health.

The NY DoH opined that NO child, not even one whose doctor specifically said that vaccines were dangerous for the child and might cause further harm or even death, could attend school without the dictated vaccines. So NY DoH overrode the medical opinion of a licensed physician in the State of New York even though the law in that state grants children vaccine exemptions for medical reasons.

In this case, the fragile child, already receiving significant services to make his education possible, was exempted by his [otherwise pro-vaccine] pediatrician but the school refused to honor the physician’s medical opinion and exemption.

The parents, more interested in protecting their child from additional harm than in being obedient, brought a lawsuit against the school district to force them to accept the doctor’s right to issue an exemption and follow the medical requirements of that exemption: no vaccines.

A clear-sighted judge chose to read the law and saw that NY law clearly gives physicians the right to issue a medical exemption to vaccines and other procedures. NY DoH had issued a directive and a form to physicians which appeared to compel them to follow the vaccine exemption guidelines of the CDC’s Advisory Committee on Immunization Practices (ACIP). As it happens, only people with prior anaphylactic reactions to vaccines qualify according to ACIP.

Unvaccinated people are automatically disqualified (no prior vaccine reaction is possible in the absence of any vaccination), as are those with other reasons for medical exemptions, such as genetic mutations, Gillian Barre Syndrome, etc., etc.

This child’s doctor felt strongly that vaccination for him would be contra-indicated medically and said so clearly.

But the judge read the law correctly and realized that nothing in it forces a doctor to follow the ACIP guidelines, nor can NY DoH force them to follow those or other guidelines or rules.
Doing so would totally cancel out medical judgement and the right to form a medical opinion leading to an exemption to vaccination or anything else “forbidden” or “compelled” by the state.

After the judge granted the child the right to go back to school without being vaccinated and receive the needed services in a Temporary Restraining Order (TRO), the school district which had been sued brought a motion to dismiss the case and vacate [cancel] the TRO.

What followed was a huge victory for a student’s right to remain unvaccinated based on criteria that his/her doctor bases an exemption opinion on. It is also a victory for physicians, at least in New York State, to do what they think is best for their patients and for patients and parents exercising the right of Informed Consent to decide what should happen to their bodies or those of their children.

The motion to dismiss the TRO was decided this week in favor of Counsel Finn’s clients and against compulsory adherence to an external set of guidelines by doctors.  The TRO has been continued (allowed to remain in force).

The fight goes on, however. The family, guided by Counsel Finn, is now seeking a Preliminary Injunction telling the New York Health DoH the the Medical Exemption Regulations implementing the school vaccine mandate law were unlawful and not authorized by the relevant statute.

This outstanding (although not-yet-secured) victor took place “on the surface” of the legal system, where Judges consider claims and, in an orderly fashion, bring cases through the procedure to a final resolution. Like so many important facets of our lives, the legal system is more complex than its simple-seeming surface. We anticipate that the next movement in the case will take place in late June (or thereafter) when the defendants (the school district) may file their Answer, justifying imposition of multiple “catch-up” vaccines for the immunologically and otherwise medically challenged child.

That is, by the way, their solution to the fact that the child does not have most of the vaccines that the DoH has mandated: rapid administration of multiple doses on a “catch-up schedule” that, like the ordinary vaccine schedule,

• Has absolutely no scientific basis in fact
• Has never been tested for either safety or efficacy
• Has been repeatedly found by the Institutes of Medicine to pose extremely serious health concerns and
• Stands as an administrative order backed by absolutely no scientific safety data whatsoever. [2]

What actually took place below the surface of this important case is a rare confrontation between private rights (aka, “Informed Consent”) and public power (aka, “Vaccine Mandates”).

When the New York Legislature reneged on the statutory Religious Exemption to required vaccines that had existed in law for decades, changes were also made to the Medical Exemption provision of that Statute.

This case is about the lawfulness of a certain Regulation issued under the Statute mandating that doctors may only issue medical excuses if they follow certain Federal Guidelines. [Emphasis added by the author.]

The Statute itself did not say that or anything even close to it. Rather, the law gave very broad and powerful discretion to the doctor, acting as the “learned intermediary”, to issue a medical excuse for vaccination:

“If any physician licensed to practice medicine in this state certifies that such immunization may be detrimental to a child’s health, the requirements of this section shall be inapplicable until such immunization is found no longer to be detrimental to the child’s health” (Public Health Law § 2164[8]).

Judge Daniel J. Doyle of the New York Supreme Court carefully considered the criteria for dismissing cases such as this case, Schwartz v Zucker (Index No. 20195117), and concluded that the defendants had not met the standard in one claim, having to do with the ‘fit’ between the Regulation and the Statute.

His April 24, 2020, order held that, at least until a final hearing later this year, the child could attend school without being vaccinated, so long as the doctor continued to certify that “immunization may be detrimental.”

Health freedom advocates must applaud Judge Doyle for his significant and well-reasoned decision which protects the important role of the doctor as the learned intermediary between the patient and the medical system. That role, based on fundamental privacy and bodily integrity rights, and firmly grounded in the universal right of Informed Consent,[3] must be respected by governments, regardless of their attempted abrogation of any statutory exemption.

Those who assert conscientious refusal to give Informed Consent to mandated vaccines must not be penalized by loss of public benefits [4]. Such a coerced choice is called an “Unconstitutional Condition” and is clearly illegal under the US legal system.

So long as Legislatures dare to presume to order people to be vaccinated with what the Courts have repeatedly found to be “unavoidably unsafe” injections, physicians must be able to assert their role to ensure that public health requirements are not detrimental to those who trust their doctor and rely on their learned, and legally defined power to protect them from harmful interventions.

The only way that this and other vaccine rights/Informed Consent cases can continue is if, and only if, there is sufficient support to keep the legal bills paid.  And the other side is counting on the belief that it won’t happen.

We disagree. We know that the Health Freedom/Informed Consent community understands very well what mandated vaccines mean to them and to their loved ones, and what they mean to their freedoms.

Join us in making sure these battles can be fought.  Make your generous contribution* at: https://www.nsfmarketplace.com/product/support-legal-challenge/.

Counsel Ralph
Ralph Fucetola JD
Trustee, Natural Solutions Foundation

*Note: this does not qualify as a tax deductible contribution.

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[1] https://www.patriciafinnattorney.com/home.html

[2] http://www.inhere.org/wp-content/uploads/2019/12/JSHO-IOM-vaccine-safety-paper.2019.pdf

[3] http://www.inhere.org/wp-content/uploads/2020/01/Informed-Consent.paper_.1a.pdf

[4]. https://tinyurl.com/AVDcard