Masking Lawsuit dismissals citing 1894 Supreme Court Ruling for the Smallpox Vaccine and Public Education

Reposted with permission from Stacy Adams of EF Parent

In 1894 a father sued the Williamsport School District for denying his son access to public education because he refused to vaccinate his son against smallpox. The Supreme Court reaffirmed that is was a requirement to be vaccinated against smallpox in order to attend public school. Over a hundred years later, judges are citing this Supreme Court ruling as the reason to dismiss multiple masking lawsuits.

The question I have is, is this law still relevant today? I decided to dig into finding out some history of smallpox and the requirement for schools. Though I personally feel, masking and vaccinations both fall under medical choice, but ultimately are comparing “apples to oranges.” One you wear on your face and is not permanent and the other is injected into your body. I understand the argument that this is for the “good of public health,” but so much has changed in advancements of medicine since 1894.

Here’s what I found that I thought was of importance:

Let’s go over H.R. 8747 that was signed into law in 1974.  I’m going to take a wild guess the judge that ruled on the current lawsuit from Erie, PA, was not aware of the repeal of the smallpox vaccination in 1974. I would think this is no longer consider it a “good law.” Wouldn’t a new precedent need to be set specifically relating to masking and that ruling from 1894 would in effect be moot?

You can read the repeal introduced here.

The next few links come from the CDC.  They have to do with masking for influenza. In 2006 the CDC wrote a National Implementation Plan for Influenza, and in here a few things stuck out that I will share below.

Page 77 “Response would include moving ill persons away from other travelers, if possible, placing a surgical mask on the ill person, and emphasizing the importance of hygiene measures, such as hand washing.”

Page 172 “Use of Face Masks

“The benefit of wearing disposable surgical or procedure masks at school or in the workplace has not been established. Mask use by the public should be based on risk, including the frequency of exposure and closeness of contact with potentially infectious persons. Routine mask use in public should be permitted, but not required. The Federal Government will develop policies and guidance on the use and efficacy of masks.”

“Although the use of surgical or procedure masks by asymptomatic individuals in community settings has not been demonstrated to be a public health measure to decrease infections during a community outbreak, persons may choose to wear a mask as part of individual protection strategies that include cough etiquette, hand hygiene, and avoiding public gatherings.”

“Any mask must be disposed of if it becomes moist. Individuals should wash their hands after touching or discarding a used mask.”

According to the Influenza Plan by Homeland Security, only ill people should wear them, they did not have any studies supporting the the use of face masks in schools, it should not be required and it should be disposed of if it becomes wet.

A report released in 2001 from The U.S. Department of Health and Human Services, is a paper on the recommendations of Immunization Practices. In the introduction it states, “By the 1960s, because of vaccination programs and quarantine regulations, the risk for importation of smallpox into the United States had been reduced. As a result, recommendations for routine smallpox vaccination were rescinded in 1971…”.

I am not a lawyer, but I would think that the Supreme Court ruling the judges are citing from 1894 are no longer relevant.  Let’s go with what we know:

1. In 1974 the President of the United States signed into law that it was no longer required to vaccinate for smallpox in order to attend public school.
2. In 2001 the CDC and Department of Health indicated that smallpox was no longer a threat and the recommendations to vaccinate were rescinded in 1971.
3. The National Influenza Plan written by Homeland Security from 2006 admitted to not having the data to determine if masking was effective. Advised only the ill to wear it and to change it when it becomes moist.

This leads me back to my question about the 1894 Supreme Court ruling Duffield vs. Williamsport School district being used today and when does a ruling become irrelevant? Pass this along to any attorneys or groups you know that have had their lawsuits shot down because of the 1894 Supreme Court ruling.

PART II

Well all of this above would make one think that the ruling should be considered obsolete, it’s not quite there yet. We are still comparing vaccines to masks. Apples to oranges. We need apples vs. apple, law vs. law. The reason the law is still “good,” is it’s setting the precedent for a local governing authority to enforce restrictions to preserve public health. School boards are considered your local governing authority. We need to look for rulings to counter act the ruling from 1894. What law didn’t exist in 1894….INFORMED CONSENT. It didn’t start showing up in courts until the 1930’s and still took sometime before laws were enacted and have evolved over time.

In June of 2017 PA Supreme Court ruled that informed consent can ONLY come from a doctor and they may not delegate their duties to someone else.

So what does this have to do with masks? Masks fall under Emergency Use Authorization (EUA). EUA’s fall under Federal law 21 U.S. Code, more specifically 360bbb 3(e)(1)(A)(i-iii). This has to do with informed consent, right to refuse and authorization for emergency use.

There was a lawsuit filed, Alicia GEERLINGS, et al., Plaintiffs, v. TREDYFFRIN/EASTTOWN SCHOOL DISTRICT, Defendant, where they did try to use 21 U.S.C. They used a different subsection to sue under. I have been searching for a lawsuit using specifically 360bbb (e)(1)(a)(i-iii), to no avail. If anyone has access or knowledge of a case brought forth with that subsection please comment below.

In addition the Eunice Kennedy Shriver National Institute of Child Health and Human Development (NICHD) is conducting research on the effects of mask wearing on children. Research on children needs approval under informed consent laws. Using masks as a research project just exemplifies that masks are experimental and used for research purposes further defining the need for informed consent.

The point of this is or argument that can be made is, while the 1894 ruling is still a “good law” it needs to be relevant to the times today. The boards can deem public health measures necessary and enforce masking but they would still have to provide informed consent through a DOCTOR. Board members have failed to provide the doctor for each child to individually have informed consent. Let’s add to our list of what we know from above:

1. In 1974 the President of the United States signed into law that it was no longer required to vaccinate for smallpox in order to attend public school.
2. In 2001 the CDC and Department of Health indicated that smallpox was no longer a threat and the recommendations to vaccinate were rescinded in 1971.
3. The National Influenza Plan written by Homeland Security from 2006 admitted to not having the data to determine if masking was effective. Advised only the ill to wear it and to change it when it becomes moist.
4. Informed consent laws DID NOT exist at the time the 1894 ruling was in effect.
5. Masks fall under EUA’s – EUA’s fall under 21 U.S.C. – 21 U.S.C. 360bbb(e)(1(a)(i-iii) covers informed consent.
6. In 2017 it was ruled through the PA Supreme Court that doctors are NOT allowed to delegate informed consent procedure to anyone else. Meaning school boards are not legally allowed to give informed consent.

The ruling from 1894 becomes outdated and irrelevant when it stands alone. A judge would have to consider all other changes or additions to more current rulings/laws. Just like it’s shown above, smallpox vaccine requirements were repealed to attend public school. That necessity changed and new laws took awhile to “catch up” to reflect the times. Informed consent has added a layer to “states of emergency” and that 1894 ruling should be challenged on the basis that informed consent did not exist in 1894. Now we have law vs. law….

As a side note I found something interesting that I still want to look further into:

In 1891 Williamsport published a document listing out all the up to date city ordinances that have been entered and or repealed.

On page 126, under Board of Health it has a section relating to students being vaccinated and the penalties. The second listed is “Repeal.” It continues on to page 127, under section 2, it states that all of the ordinances or parts of ordinances inconsistent herewith be and the same are hereby repealed. I am looking for further clarification if the law was actually repealed or was it just the penalties. I’ll post an update on here if I find out more information.