CHILDREN'S HEALTH DEFENSE, a California Nonprofit corporation et al v. THE CITY OF PHILADELPHIA et al
MEMORANDUM. SIGNED BY HONORABLE HARVEY BARTLE, III ON 2/7/24. 2/7/24 ENTERED AND COPIES E-MAILED.(amas)
IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF PENNSYLVANIA
CHILDREN’S HEALTH DEFENSE, et
THE CITY OF PHILADELPHIA, et
February 7, 2024
Before the court is a constitutional challenge to a
health regulation of the City of Philadelphia pertaining to
vaccination of children between the ages of 11 and 18 without
Plaintiffs are a non-profit corporation known as the
Children’s Health Defense as well as seven parents individually
and on behalf of their minor children.
The defendants are the
City of Philadelphia, its Health Department and the City’s
Health Commissioner Cheryl Bettigole, M.D., M.P.H., in her
Plaintiffs seek declaratory relief under 28
U.S.C. § 2201 and 42 U.S.C. § 1983.
The defendants have moved to dismiss the complaint for
lack of subject matter jurisdiction under Rule 12(b)(1) of the
Federal Rules of Civil Procedure or in the alternative for
failure to state a claim for relief under Rule 12(b)(6).
The court first turns to the question of subject
Once jurisdiction is challenged, the
plaintiffs have the burden of proof to establish that
(3d Cir. 2016).
Davis v. Wells Fargo, 824 F.3d 333, 346
Here defendants make a facial challenge.
Accordingly, the court must accept as true all well pleaded
facts in the complaint and may also take into account certain
documents which are integral to or explicitly relied upon in the
complaint or which are undisputedly authentic if plaintiffs’
claims are based on the document.
See Const. Party of Pa. v.
Aichele, 757 F.3d 347, 358 (3d Cir. 2014); see also In re
Burlington Coat Factory Sec. Litig., 114 F.3d 1410, 1426 (3d
The gravamen of the complaint is a Health Department
2019 regulation which permits the city to vaccinate children
between the ages of 11 and 18 without parental consent, provided
the child gives consent after receiving a vaccine information
The regulation, entitled Medical Evaluation,
Immunization and Treatment of Minors, provides in relevant part:
(b) Minor’s Consent to Immunization. A
person between the ages of 11 and 18 may
authorize his or her own immunization,
without the approval or consent of another
person, to prevent occurrence of a
reportable disease, infection, or condition,
provided such person is capable of providing
informed consent. A parent or guardian does
not need to be present at the time the
vaccine is administered. Written consent by
the minor is not required, but documentation
that the vaccine information statement (VIS)
was provided to the vaccine recipient, and
the publication date of the VIS, is
required. The health care provider may not
be sued or held liable for providing such
immunization to the minor if the minor has
consented to such procedures or treatment.
In May 2021, the regulation was amended specifically to include
the COVID-19 vaccine.
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, inter alia, 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
Defendants first argue that the court lacks subject
matter jurisdiction because plaintiffs lack standing to pursue
It is axiomatic that federal courts have the power
under Article III of the Constitution only to adjudicate “Cases
In order for there to be a case or
controversy, a plaintiff must have standing to sue.
establish standing, there must be an injury, actual or imminent,
which is concrete and particularized.
Transunion LLC v.
Ramirez, 594 U.S. 413, 428-29 (2021).
Such injury must be
traceable to the challenged action and redressable by a
Clapper v. Amnesty Int’l USA, 568 U.S. 398,
In this action, none of the individual plaintiffs
alleges any actual or imminent injury to themselves or to their
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.
Children’s Health Defense, of which the adult
plaintiffs are members, is also a plaintiff.
organization can assert standing on behalf of its members, it
must establish that at least one member would have standing.
Thus it must 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.
Summers v. Earth
Island Inst., 555 U.S. 488, 498 (2009); N.J. Physicians, Inc. v.
President of the United States, 653 F.3d 234, 239 (3d Cir.
The complaint is devoid of any such allegations.
Plaintiffs simply rely on Booth v. Bowser to establish
597 F. Supp. 3d 1 (D.D.C. 2022).
That case is
In Booth, plaintiffs were parents opposed to
Id. at 7.
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
Plaintiffs maintained that the regulation was
preempted by federal law and violated their constitutional and
Id. at 7.
The court found that the
individual plaintiffs had standing.
Id. at 15-16.
action, the complaint in Booth is permeated with specific
allegations regarding the children’s specific desire to be
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.”
Id. at 14.
The second child
went so far as to visit a doctor without her father’s knowledge
and request she be vaccinated.
Id. at 15-16.
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.
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.
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