Their “ONLY” allegation is that the vaccine is unnecessary?  Hmmmm.  - SM

 

http://www.njo.com/njcommunities/ledger/sussex/index.ssf?/njcommunities/ledger/sussex/15478cd.html

 

Judge hears suit over hepatitis shot rule

12/12/01

BY JIM LOCKWOOD
STAR-LEDGER STAFF

While his sixth-grade classmates were in school in Sparta yesterday, 11-year-old Zachary Shaftan spent part of the morning in court in Morristown.

Zachary is at the center of a lawsuit seeking to overturn a new state rule requiring schoolchildren to be vaccinated against the hepatitis B virus or be banned from classes.

A judge heard arguments on both sides of the case yesterday and is expected to issue a ruling today.

At issue is whether Zachary should be allowed back at the Sparta Middle School even though he has not received the hepatitis B vaccination, which is a new requirement this year for school enrollment. Hepatitis B is a virus that can cause cancer and chronic liver disease and is spread by infected blood and bodily fluids.

The boy has been home- schooled since he was suspended Nov. 2 from the Sparta Middle School because his parents, Richard and Donna Shaftan, have refused to have him inoculated.

On Nov. 7, Zachary's parents sued the Sparta school board and the state to get Zachary back in school. They say the vaccine is unnecessary for youths because the virus is spread mainly by adults through risky sex or drug use. They also claim their constitutional rights are being violated because the mandate intrudes on "ancient parental rights" to make medical decisions for their children.

On Nov. 13, Superior Court Judge Kenneth MacKenzie refused to order the school to immediately take the youth back, stating the Shaftans are not likely to win the lawsuit because the vaccination is presumptively valid. An appellate judge upheld that decision one day later.

Yesterday, in a court hearing before MacKenzie, the Shaftans' attorney, Michael Carroll, sought an injunction for the boy's return to school, arguing the defendants failed to show there would be any harm if he were allowed back.

Of the 67 cases of hepatitis B in the state so far this year, "not one was passed in the classroom," Carroll said.

"The real reason the state is doing this is because children grow up and do risky things," Carroll said. "It's a policy issue of trying to get kids (inoculated) while they're small because when they're older they won't listen to you."

But attorneys for the school board and state asked that the case be dismissed or transferred to the state education or health departments. The Shaftans failed to show why the board should ignore the regulation, and failed to exhaust other administrative remedies before suing, they said.

"Their only allegation is it (the hepatitis B vaccination) is unnecessary," said school board attorney Allan Dzwilewski.

Douglas Alba, an attorney for the state, also noted that concerns similar to the Shaftans were raised in a hearing last year of the Public Health Council, which endorsed the vaccination.

In addition to dismissing the case or transferring it to the state education or health departments, the judge also could end up transferring the case to a federal court.

After the hearing, Richard Shaftan, who works as a conservative political consultant, said he is prepared to fight the case to the U.S. Supreme Court, if necessary. Shaftan said he has received support from the Tuscon, Ariz.-based Association of American Physicians and Surgeons and Washington D.C.- based Political Speech, Legal Defense and Education Fund.

"Why are they forcing this on young children? It's just crazy. It's not a communicable disease," Shaftan said.

Zachary seemed to take matters in stride, sitting next to his dad at the plaintiff's table in court and afterward politely answering questions from newspaper, radio and television reporters.

"It's kind of like, strange at first, getting used to it," Zachary said of his newfound fame.

And though the youth acknowledges it would have been easier to just have been given the inoculation, he said most parents probably acted hastily.

"All of my friends have it, but their parents don't even know what they're getting," the boy said.

In September, New Jersey became the 43rd state to require vaccines against hepatitis B.

Kindergarten, first- and sixth- grade pupils must have had the first of the vaccine's three shots by Nov. 1 or face suspension, unless exempted for religious or medical reasons.

Pediatricians have routinely administered hepatitis B vaccines during the past decade. As a result, about 90 percent of the state's 1.3 million schoolchildren are already inoculated, and the new rule aims to cover the other 10 percent, the state Department of Health has said.

A ruling in favor of the Shaftans "would say parents have the right to opt out of hepatitis B vaccination on philosophical grounds," Carroll said.

Jim Lockwood covers Sussex County. He can be reached at jlockwood@starledger.com or (973) 383-0516.

ALL INFORMATION, DATA, AND MATERIAL CONTAINED, PRESENTED, OR PROVIDED HERE IS FOR GENERAL INFORMATION PURPOSES ONLY AND IS NOT TO BE CONSTRUED AS REFLECTING THE KNOWLEDGE OR OPINIONS OF THE PUBLISHER, AND IS NOT TO BE CONSTRUED OR INTENDED AS PROVIDING MEDICAL OR LEGAL ADVICE.  THE DECISION WHETHER OR NOT TO VACCINATE IS AN IMPORTANT AND COMPLEX ISSUE AND SHOULD BE MADE BY YOU, AND YOU ALONE, IN CONSULTATION WITH YOUR HEALTH CARE PROVIDER.