Vaccine case draws rally

John Christensen
A rally of supporters for Thorn Schwartz and his family gathered in front of the Yates County Courthouse Feb. 21.

Thorn Schwartz, a 13-year-old boy with severe autism who was removed from school over vaccines, was in Yates County Supreme Court Feb. 21 with his parents to take on the state of New York.  

Thorn was barred from his special education school in September when Monroe One BOCES, denied his medical exemption from vaccines. The school did it based on new, tougher regulations set by the State Department of Health in August 2019. If Thorn’s case goes as his parents hope, it could have a major impact on the state health policy on vaccines.

When Thorn and his family arrived at the Yates County Courthouse Friday afternoon, there was a rally of over 70 supporters outside, including other families whose children are fighting the state over their medical exemptions. 

The judge in this case is Dan Doyle from Monroe County, Acting Supreme Court Judge. Doyle signed a temporary restraining order at the end of January allowing Thorn go back to school at the start of the month. Thorn’s family wants Doyle to make that order permanent and possibly strike down the revised state regulations. 

As Thorn and his supporters filed into the courtroom attorney Patti Finn and Thorn’s father, attorney Carl Schwartz, challenged the Dept. of Health’s authority to intervene and overrule the decision by Thorn’s own medical doctor who granted the vaccine exemption. They claim the statute grants that power to the doctor who “stands between the patient and the drug.” 

The state’s lawyer and the lawyer for Monroe One BOCES, Thorn’s school, followed with their arguments. N.Y.S. Assistant Attorney General Heather McKay said, “DOH has not played any role in the determination regarding this particular student’s medical exemption application.” But she also argued that the state legislature grants the DOH “broad administrative power” to change rules like the one on vaccination

Kelly Foss, Attorney for Monroe One BOCES, said the school was caught in the middle, facing state fines of $2,000 per day for every student not in compliance with the regulation, saying, “BOCES and Mr. Frenzel (principal) want this child to return to school in compliance with all applicable laws and regulations.”

Addressing the court, Carl Schwartz, Thorn’s father replied, “It’s disingenuous to me that Department of Health can act like it has nothing to do with this case when in fact my son has had medical exemptions for years. He’s been in public institutions for years. And the only reason that he’s not in school today is because the commissioner woke up on August 16 of 2019 and decided he was going to change the rules.” Schwartz says Thorn has not received any vaccinations since 2011.

“The mathematics of these cases, we are the super, super minority of the most severely disabled cases in the state,” said Carl. “If a medical exemption does not apply to Thorn Sterling Schwartz there’s nobody that’s going to get one.”

At the opening of the session, Doyle ordered that no medical arguments be made orally in court for the sake of cofidentiality. The DOH’s and BOCES’ medical arguments are to be submitted to him in writing within one week, with the plaintiff’s written response due one week after that. Doyles’ written decision is expected within a month.

Includes reporting by Berkley Brean, WHEC 10 News partner