Kanawha judge dismisses lawsuit contesting vaccination rule

By Kyla Asbury | Oct 18, 2012

CHARLESTON – Kanawha Circuit Judge Tod J. Kaufman has dismissed a lawsuit that opposed a new vaccine requirement for children.

In his Oct. 17 decision, Kaufman found that the immunization rule is consistent with state code and does not exceed the Legislature’s limits on interpretive rules.

Patrick Lane, a member of the West Virginia House of Delegates, represented the plaintiff We the Parents, which is a non-profit, voluntary association that consists of six families. Lane argued that the department did not have the right to require additional vaccines without Legislative approval.

The lawsuit was filed Aug. 23 in Kanawha Circuit Court against West Virginia Department of Health and Human Resources Cabinet Secretary Rocco S. Fucillo and Bureau for Public Health Commissioner Marian L. Swinker.

State code requires children starting school for the first time to be immunized against diphtheria, polio, rubeola, tetanus and pertussis, but, under the DHHR rule, children going into seventh and 12th grade are required to show proof that they have received vaccines against meningitis, tetanus, diphtheria and pertussis.

Children going into the 12th grade are also required to show proof that they have received booster doses after the age of 16.

In his final dismissal order, Kaufman said that the defendants relied upon the most current recommendations issued by the U.S. Department of Health and Human Services, the Advisory Committee on Immunization Practices, the American Academy of Pediatrics and the American Academy of Family Physicians.

The Advisory Committee on Immunization Practices, which consists of 15 experts who are voting members selected by the Secretary of the U.S. Department of Health, has work groups active all year to stay up-to-date on specific vaccines and vaccine safety information, according to the dismissal order.

“The rule is entitled to substantial deference as it represents the best judgment of a national group with undoubted expertise and experience whose judgments are vetted before the public,” the dismissal order states.

Kaufman wrote in his decision that the right to an education is not a private right, but a public one.

“The distinction between ‘public rights’ against the Government and ‘private rights’ between private parties is well established…a thorough and efficient education is meant to develop the student as a responsible and contributing member of society…Because ‘education has a fundamental role in maintaining the fabric of our society…a public education is a public right,” Kaufman said in his dismissal order.

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