PHILADELPHIA – The City of Philadelphia has won dismissal of 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 a lack of subject matter jurisdiction.
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.”
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.”
UPDATE
In a memorandum opinion handed down on Feb. 7, U.S. District Court for the Eastern District of Pennsylvania Harvey Bartle III ordered the case dismissed for lack of jurisdiction, finding none of the plaintiffs had standing in this matter.
“The plaintiff Children’s Health Defense has chapters and members throughout the United States including Pennsylvania. It asserts that it is ‘an advocacy group dedicated to research, education, and litigation of governmental actions that pose a threat to the health and well-being of children.’ The individual plaintiffs, who are all members of the Children’s Health Defense, aver that they are parents of minor children. However, only three of the seven parents allege that they have children who either attend school or live in Philadelphia where the regulation at issue applies. There are no further details in the complaint about any harm or imminent harm to any of the plaintiffs,” Bartle said.
“In this action, none of the individual plaintiffs alleges any actual or imminent injury to themselves or to their minor children. Some do not even have children who attend school or live in Philadelphia. The complaint does not aver that any of the children has been vaccinated without the consent of a plaintiff parent or is in imminent danger of receiving a vaccination without parental approval. There are no allegations that these children are being pressured to submit to vaccination without involvement of their parents. Any injury or threat of injury to the individual plaintiffs whether adults or children is pure speculation.”
Bartle added that the Children’s Health Defense, of which the adult plaintiffs are members, is also a plaintiff itself and while an organization can assert standing on behalf of its members, it must establish that at least one member would have standing – or allege that at least one member has suffered a concrete and particularized injury or there is an imminent threat of such injury to at least one member.
However, Bartle opined that the complaint was “devoid of any such allegations.”
“Plaintiffs simply rely on Booth v. Bowser to establish standing. That case is inapposite. In Booth, plaintiffs were parents opposed to childhood vaccinations. They challenged a law passed by the Council of the District of Columbia permitting children ages 11 and older to be vaccinated without parental consent or knowledge. Plaintiffs maintained that the regulation was preempted by federal law and violated their constitutional and statutory rights. The Court found that the individual plaintiffs had standing. Unlike this action, the complaint in Booth is permeated with specific allegations regarding the children’s specific desire to be vaccinated,” Bartle said.
“For example, one child has access to a vaccine clinic on his school’s grounds and has stated that he ‘would take the vaccine if offered it.’ The second child went so far as to visit a doctor without her father’s knowledge and request she be vaccinated. Though she left without being inoculated, her father alleges that she remains very interested in receiving vaccinations as she cannot attend summer camp without receiving certain vaccinations. In contrast to the pending action, the complaint in Booth contained plausible allegations that injuries to plaintiffs were imminent if not actual. This action will be dismissed for lack of subject matter jurisdiction as none of the plaintiffs has standing.”
The plaintiffs were represented by Ray Lee Flores of the Law Offices of Ray L. Flores II in San Diego, Calif., Tricia Sophia Lindsay of the Law Offices of Tricia S. Lindsay in Mount Vernon, N.Y. and Mary S. Holland of the Children’s Health Defense, in Franklin Lakes, N.J.
The defendants were 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