PHILADELPHIA – The City of Philadelphia seeks to dismiss litigation from a California nonprofit group chaired by independent presidential candidate Robert F. Kennedy Jr. concerning allegations that the City was vaccinating young children against COVID-19 without parental consent, for failure to state claims upon which relief could be granted.
Children’s Health Defense and parents Comfort Geoffrey, Leonard Roberts and Maria Parrillo of Philadelphia, Jennifer Morrissey of Merion Station, Denise Sedjian and Maria Huber of New Hope and Jessica Zareczky of Bethlehem first filed suit in the U.S. District Court for the Eastern District of Pennsylvania on Nov. 1 versus the City Of Philadelphia, its Department Of Public Health and Department Commissioner Dr. Cheryl Bettigole, all of Philadelphia.
“On May 14, 2021, in response to the COVID-19 outbreak and the availability of unlicensed COVID-19 vaccines produced under an Emergency Use Authorization, the City of Philadelphia Department of Public Health enacted a regulation titled ‘Emergency Regulation for the Control and Prevention of COVID-19 Supplementing the Regulation Governing the Immunization and Treatment of Newborns, Children and Adolescents (Vaccine Information Statements) (the “COVID-19 Minor Consent Regulation”). The general minor consent regulation and the COVID-19 minor consent regulation are referred to herein collectively as the ‘minor consent regulations.’ This action seeks necessary declaratory relief to prevent imminent harm to children and families from the minor consent regulations,” the suit stated.
“In particular, the COVID-19 minor consent regulation is an ‘emergency regulation’ enacted in response to the COVID-19 outbreak and availability of COVID-19 vaccines. However, defendants have ignored that the President of the United States Joseph Biden Jr., declared the COVID-19 emergency over in May 2023 (the emergency ended in Pennsylvania in 2021, shortly after the COVID-19 minor consent regulation was enacted). Based on the language of the COVID-19 minor consent regulation, the defendants intend for its operation to continue in perpetuity and, notably, in the absence of any emergency. Both minor consent regulations permit vaccination of children as young as 11 years old without parental knowledge, consent or permission. Vaccinating minor children without knowledge or consent of their parents or legal guardians violates parental constitutional rights to direct their child’s upbringing and disregards valid religious and philosophical exemptions obtained under Pennsylvania law. These regulations raise troubling issues of informed consent, freedom of religion, parental rights and due process, implicating both the U.S. Constitution and the Pennsylvania Constitution, and other federal and Commonwealth laws.”
The suit continued that the minor consent regulations “remove parents from critical decision making that is an integral part of the family unit and that safeguards a child’s well-being” and that “by taking down the protective guardrails of parental consent, the minor consent regulations violate federal and Commonwealth laws and put children at serious risk of harm.”
“The minor consent regulations eviscerate plaintiff-parents’ federally-protected right to receive critical information regarding vaccines before their child receives an injection to not only inform them of risks regarding each vaccine but also to advise them of their right to file a claim and seek compensation in the Vaccine Injury Compensation Program under the National Childhood Vaccine Injury Act of 1986, 42 USCS Section 300aa-1, et seq., in the event of injury by childhood vaccines or under the Countermeasures Injury Compensation Program for COVID-19 vaccines under Section 319 of the Public Health Service Act,” the suit said.
“The National Childhood Vaccine Injury Act of 1986 requires a health care provider administering a vaccine to a child to provide the child’s parent or other legal representatives a copy of information ‘presented in understandable terms [that] shall include – (1) A concise description of the benefits of the vaccine; (2) A concise description of the risks associated with the vaccine; (3) A statement of the availability of the [VICP]; and (4) Such other relevant information as may be determined by the Secretary.’ A Vaccine Information Statement is particularized to each vaccine. For 11-year-old children, for whom Emergency Use Authorization COVID-19 vaccines are authorized, there is no VIS.”
The suit also said that pharmacists who vaccinate minors without parental consent are breaking state law.
“Moreover, COVID-19 vaccine injuries are not covered by NCVIA or the administrative proceedings in the VICP. COVID-19 vaccine injuries are only covered under the CICP, an administrative process which, among other procedural irregularities, bars participation by attorneys representing injured claimants. The CICP is an administrative process that, as of Oct. 21, has compensated only six claims, averaging just under $3,000 for each for death or serious bodily injury claim. Not a single vaccine administered to children has ever been subjected to a true placebo (inert substance)-controlled study. It is highly unlikely that children are aware of this information or that children understand the importance of this fact,” the suit stated.
“Additionally, and of critical importance, COVID-19 vaccines available today in the United States for 11-year-old children are still investigational and have not been licensed as safe and effective. Children are not capable of understanding the risks associated with a novel vaccine and cannot appreciate that there are no long-term studies of the safety or effectiveness of these vaccines. The Philadelphia Department of Public Health leads Philadelphia’s COVID-19 response and provides services, support and guidance for COVID-19.”
UPDATE
On Jan. 5, the defendants filed a motion to dismiss the case for failure to state claims upon which relief could be granted – arguing that each count fails to show a violation of either state or federal law, or a violation of the plaintiffs’ constitutional rights.
“Strikingly, the complaint is devoid of any allegations of concrete or even speculative harm caused by the regulations. The individual plaintiffs who purport to bring claims on their own behalf and on behalf of their minor children allege neither that their minor children actually received vaccinations pursuant to the challenged policy nor that their minor children are likely to receive vaccinations under the policy, much less that any of that has occurred without a required person receiving a Vaccine Information Statement, a form provided under federal law to inform the vaccine recipient of the benefits and risks of a vaccine,” according to the motion.
“Instead, they challenge the City’s regulations on the basis that they are preempted by federal law, interfere with plaintiffs’ rights as parents, and violate Pennsylvania non-delegation principles. But merely characterizing the regulations, inferring a policy, and alleging in conclusory fashion that the Philadelphia Department of Public Health’s measures are unlawful is a far cry from standing to sue. The complaint is also devoid of any allegations that a CHD member has or is likely to be harmed by the regulations. As a result, plaintiffs lack standing, do not have authority to invoke this Court’s jurisdiction, and the complaint should be dismissed without further analysis required.”
The motion continued to explain why, in the City’s view, the allegations are invalid.
“First, the regulations are not pre-empted by federal law because there is no express or field preemption and the regulations do not conflict with federal law. Federal law does not require parental notice when a minor may consent to treatment. Even if it did require such notice, the regulations do not conflict with such a requirement, but provide separate, supplemental notice requirements regarding VIS and emergency authorization information. Because there is no conflict with federal law, the regulations are not pre-empted. Second, the regulations do not violate plaintiffs’ constitutional rights to make decisions about their children’s upbringing. There is no compelled interference present here and this claim fails as a matter of law,” the dismissal motion said.
“Third, and lastly, the regulations do not violate Pennsylvania law or constitute an unlawful delegation of legislative power from the General Assembly to the City. As we explain below, the City has broad regulatory powers under Pennsylvania’s Home Rule Act and the regulations do not violate any provision of Pennsylvania law. For these reasons and as explained further below, this Court should dismiss the complaint for lack of jurisdiction. In addition, to the extent this Court believes further consideration is warrant, it should also dismiss the complaint for failure to state a claim upon which relief may be granted.”
For counts of violating the National Childhood Vaccine Injury Act of 1986, Article VI and the Fifth and Fourteenth Amendments to the U.S. Constitution and non-delegation, the plaintiffs are seeking the following relief:
• A declaratory judgment that the general minor consent regulation conflicts with the National Childhood Vaccine Injury Act of 1986 thereby depriving parents and children of their statutory rights to have prior knowledge and consent before vaccines are administered to minor children;
• A declaratory judgment that, because the general minor consent regulation conflicts with the National Childhood Vaccine Injury Act of 1986, it is unconstitutional and violates the Supremacy Clause of the U.S. Constitution;
• A declaratory judgment that the minor consent regulations deprive parents of their fundamental right to direct the care and upbringing of their children, in violation of the Due Process Clauses of the Fifth and Fourteenth Amendments to the U.S. Constitution;
• A declaratory judgment that the minor consent regulations violate the non-delegation provisions of the Pennsylvania Constitution;
• A declaration that the minor consent regulations are unenforceable;
• Costs and attorneys’ fees pursuant to 42 U.S.C. Section 1988; and
• Such other and further relief as the Court deems just and proper.
The plaintiffs represented by Ray Lee Flores of the Law Offices of Ray L. Flores II in San Diego, Calif. and Tricia Sophia Lindsay of the Law Offices of Tricia S. Lindsay, in Mount Vernon, N.Y.
The defendants are represented by Deputy City Solicitor Ryan B. Smith, of the City of Philadelphia’s Law Department.
U.S. District Court for the Eastern District of Pennsylvania case 2:23-cv-04228
From the Pennsylvania Record: Reach Courts Reporter Nicholas Malfitano at nick.malfitano@therecordinc.com