Victory for Thorn

John Christensen

Thorn Schwartz, the severely autistic boy who was banned from school because of his medical exemption from vaccinations, has prevailed in the suit filed by his father, local attorney Carl Schwartz and his mother, psychologist Dr. Kerri Schwartz.

Thorn was banned from the Creekside School at BOCES One in Fairport at the beginning of the school year in September after the school rejected his doctor’s medical exemption from vaccines, based on new rules written by the N.Y. State Department of Health (DOH). 

Thorn was later allowed to return to the special education school under a temporary order signed in January by New York State Supreme Court Judge Dan Doyle as the Article 78 suit progressed to final decision.

A rally of support was held in front of the Yates County Courthouse Feb. 21, the hearing date of his case. The case garnered statewide attention and support from families in similar situations, and Doyle’s decision would come to impact their cases as well.

In his 31-page decision filed Friday, April 24, Doyle struck down the DOH regulation by examination of the legal intent of the N.Y. State Legislature in the wording of the health law regarding vaccinations for school attendance. More precisely, Doyle cited several proposed amendments to that law that would have achieved what the DOH later decreed on their own. All those amendments were voted down by the legislature. For the DOH to then do what the legislature had voted not to do, exceeded their authority, he found.

Doyle cited standing Public Health Law to support Dr. Robert Ostrander’s exemption for Thorn:

“If any licensed physician or nurse practitioner certifies that such immunization may be detrimental to the person’s health or is otherwise medically contraindicated, the requirements of this section shall be inapplicable until such immunization is found no longer to be detrimental to such person’s health or is no longer medically contraindicated (Public Health Law  § 2165).”

Doyle wrote, “... it appears that the Department of Health may have made value judgments entailing difficult and complex choices between broad policy goals to resolve social problems, especially considering the impetus for the emergency regulation and, ultimately, the final regulation was due to the repeal of the religious exemption.”

Referring to the analogous California repeal of religious exemptions, Doyle wrote, “... when California’s exemptions rose over the three year period after repeal of its religious exemption, it was California’s Legislature which defined and refined the medical exemption. Here, it is for the New York Legislature to define and refine the medical exemption and not for the Department of Health to do so... creating its own comprehensive set of rules without benefit of legislative guidance.”

Doyle’s ruling effectively strikes down the DOH requirement for a doctor to defend each vaccine exemption specifically and for that defense to be approved by the school’s own doctor, for the entire state. 

After the ruling, Carl Schwartz stated, “My family would like to convey how grateful we are for the many people who have supported us and cheered us on throughout the entire lawsuit to get our son back to school. We have been approached by some who did not even know us but recognized us from newscasts who affirmed our fight to protect all medically exempt students in the State of New York. Judge Doyle rendered an incredibly well thought and written decision which leaves intact the role that attending physicians decide whether any given patient might be harmed by a vaccine and should therefor be exempt from same.”

When asked if he anticipated an appeal of the ruling, Schwartz said, “We honestly have no idea whether the Attorney General or the school district will avail themselves of the 15-day period to respond to our lawsuit. It is likely that the Attorney General will because the governor just took a big hit. He was paid $48 million by Merck (a vaccine manufacturer) in June of last year for his election campaign, and it went public within three days of his Commissioner having gutted the medical exemption.  That’s a lot of money with not much to show for it if our case stands.”

Schwartz says their attorney, Patty Finn, is going to see if she can convince (the school) to withdraw from the litigation as they don’t really “have a horse in the game,” after Doyle’s ruling.