PENN YAN — Carl Schwartz is an attorney, but he spoke as a father — and a passionate one at that — Friday afternoon at the Yates County Courthouse.
“We want our son back in school,” Schwartz told state Supreme Court Justice Daniel Doyle. “Please don’t make us tell Thorn he can’t go back to school.”
Schwartz made that plea during oral arguments in his lawsuit against Monroe #1 BOCES, officials at Creekside School in Fairport — where Thorn goes to school — and the state Department of Health. Schwartz said Thorn, who is severely autistic, had been going to the school for the last three years with great results.
However, Schwartz filed the lawsuit in September after Thorn — who had a medical exemption from vaccinations from his personal doctor — was not allowed to attend Creekside because he did not get a measles vaccine.
Thorn’s exemption was overruled by the school doctor, with school officials saying they were following a directive from the Department of Health after the agency beefed up its mandatory vaccination policy following a measles outbreak last year.
DOH Commissioner Dr. Howard Zucker also is named in the lawsuit.
“The commissioner is the reason we’re here. He woke up on the morning of Aug. 16, 2019, and changed the rules,” Schwartz said. “He woke up one day and declared war on the most severely disabled kids in this state.”
Schwartz and his wife Kerri, a psychologist, said Thorn, 11, has adverse reactions to vaccinations and other medicine going back to when he was a toddler, possibly leading to his autism. His lifelong physician, Dr. Robert Ostrander, approved the medical exemption.
Friday’s court appearance followed a rally outside the courthouse. At least 50 people attended, many of them holding signs saying “Justice for Thorn” and “Respect Medical Exemptions.” After the rally, they went inside to hear the legal arguments.
“A lot of kids are injured by vaccines. There is no valid reason for Thorn to lose his medical exemption,” said Ali Hamideh, who came from Buffalo and said he advocates for medical and religious exemptions from vaccines. “This is bogus. I am here fighting for Thorn and all the kids in this state — fighting this injustice.”
The rally also included a number of children with autism. Susan Gockeler came from the group Take Action Roc (Rochester), which supports the rights of parents to make medical, religious and educational decisions regarding their children without government interference.
“We need to stop these mandates. This is just a witch-hunt,” she said. “We believe everyone has a right to decide what they want to put into their bodies.”
“The government intrudes into our lives far too much,” added Bob DeWitt from Golden Land Baptist Missions, who said he is a friend of Carl Schwartz.
Even though Schwartz is an attorney, he hired another lawyer, Patti Finn, to argue the lawsuit. She said the vaccination controversy “erupted” when the state Legislature repealed the religious exemption from vaccinations in June, and the DOH amended its regulations two months later.
Finn said Ostrander is a “pro-vaccine” doctor and has fully vaccinated Thorn’s siblings but believes vaccinations harm Thorn.
“The decision should clearly be with the patient’s doctor. The medical professional is supposed to stand between the person and the drug,” Finn said. “Now, the doctor’s opinion doesn’t matter anymore. The state should not be drilling into the medical opinion of every doctor in the state.”
Attorney Heather McKay, representing the Department of Health, argued that it was a school decision to take away Thorn’s exemption.
“The DOH has no role in this case,” she said. “The DOH is completely and utterly uninvolved.”
Attorney Kelly Voss, representing BOCES and the school, said due to DOH regulations the school faces a fine of $2,000 per day if it allows an unvaccinated student to attend.
“The school is really caught in the middle,” she said. “The school wants Thorn back. The school is not making policy here.”
Last month, Doyle issued a temporary restraining order that allowed Thorn to return to school. He will issue a written decision later on the Schwartz’s lawsuit, which Finn said could strike down the DOH regulations.
“We’ve been dealing with autism for 10 years. It’s been a brutal, brutal journey,” said Schwartz, a longtime local attorney who is also well known as an actor for the Penn Yan Theater Company. “Creekside has done miracle work in our son’s life. They do a great job there. If the medical exemption doesn’t apply to Thorn Sterling Schwartz, it applies to nobody.”