Religious Exemption: The Law – a Summary

Religious Exemptions – the Law:

 

The Federal Constitution does not require a Religious Exemption:

  • School immunization requirements are constitutional (Zucht v. King, 260 U.S. 174, 177 (1922): (no exemption in that case).
  • Parental rights & religious freedom do not overcome child’s welfare. Prince v. Massachusetts, 321 U.S. 158 (1944): Case focused on child labor law; had a comment addressing compulsory vaccination.
  • Neutral, generally applicable laws can be applied even to those with religious opposition. Emp’t Div., Dep’t of Human Res. of Oregon v. Smith, 494 U.S. 872, 890 (1990).
  • Most recently, principles applied in: Phillips v. City of New York, (2015, 2nd circuit) (cert denied).

A State Religious Freedom Restoration Act can be overcome by subsequent legislation, and hence does not prevent abolishing the religious exemption either. In addition, at least one case suggested preventing infectious disease is a compelling state interest: Workman v. Mingo Cnty. Bd. of Educ., 419 F. App’x 348, 353–54 (4th Cir. 2011) (per curiam).

 

Limits on Scope and Application of Religious Exemptions:

  • Most courts ruled: you cannot limit the exemption to organized religion. Dalli v. Bd. of Educ., 267 N.E.2d 219, 222–23 (Mass. 1971); Brown, 378 So. 2d at 223, cert. denied, 449 U.S. 887 (1980). One exception – Kentucky – overturned later by legislature.
  • If the legislature did not require a show of sincerity for a religious exemption, several courts ruled that officials cannot demand a show of sincerity. In re LePage, 18 P.3d 1177, 1180 (Wyo. 2001); Dep’t of Health v. Curry, 722 So. 2d 874, 878–79 (Fla. Dist. Ct. App. 1998).
  • Belonging to a religion that supports vaccines does not mean someone can be denied an exemption: focus on personal belief, not orthodoxy. Berg v. Glen Cove City Sch. Dist., 853 F. Supp. 651 (E.D.N.Y. 1994); Matter of Shmuel G. v. Rivka G., 800 N.Y.S.2d 357 (N.Y. Fam. Ct. 2005).


 

Is a Religious Exemption a Good Idea?

For Religious Exemption: Against Religious Exemption:
Respect for religious values and religious freedoms. Unfair to put child at risk because of parents’ religious belief – child did not choose religion.
As long as numbers small enough, does not undermine herd immunity, little or no risk. Jurisprudence makes it impossible to limit numbers of those using exemption – very hard to police – so does undermine herd immunity & creates risk.
Jurisprudence that makes it hard to police encourages people to lie & unfairly advantages good liars.
No mainstream religion opposes vaccination. Even Christian Science does not directly prohibit it – especially if legally required. See: Mary Baker Eddy, The First Church of Christ, Scientist, and Miscellany 219–20 (1917); Christian Science Sentinel, http://sentinel.christianscience.com/concordapi/ view?q=quarrel+vaccination&book=tfccs.main.pw.my&verbatim=1 (last visited Aug. 1, 2014).

Immunization Mandates do not Discriminate

“Anti-vaccine activists have been claiming that statutes abolishing exemptions from school immunization requirements – like SB277 in California – are discriminatory. This post explains why this claim is wrong in both its form: school immunization requirements without exemptions are neither discrimination nor segregation.”

 

http://www.skepticalraptor.com/skepticalraptorblog.php/immunization-requirements-neither-discriminate-nor-segregate/

The Facts about the National Vaccine Injury Compensation Program

“In this post I explain how one goes about proving a case in the  National Vaccine Injury Compensation Program (NVICP), and how that differs from proving a case in the civil courts, focusing on what it means to have a no-fault program and proving causation. I will use a case that started with the tragic death of a young child after a vaccine to illustrate the complexity and operation of the program, and also to address the idea of federal preemption, and how it limits the ability of those claiming vaccine injuries to use state courts for their claims. ”

 

http://www.skepticalraptor.com/skepticalraptorblog.php/national-vaccine-injury-compensation-program-facts/

CALIFORNIA SB 277 VACCINE LEGISLATION PROTECTS CHILDREN

“Two bills are currently proposed in California that may dramatically affect vaccination rates. Anti-vaccine activists have mobilized against them. We, the majority of vaccinating parents, need to do the same, speak up and make our preferences known. Say clearly that we will no longer have a preventable risk of disease forced on our children, ourselves, and other family members and friends by a minority. And we can. ”

 

 

http://www.skepticalraptor.com/skepticalraptorblog.php/california-sb-277-vaccine-legislation-protects-children/

Informed Consent and School Immunization Requirements

“Several people have asked me whether having school mandates is in tension with the idea of informed consent. The answer is no. While school mandates have some effect on parental autonomy, the doctrine of informed consent should not be conflated with autonomy.

For a somewhat different reason, imposing sanctions on those who do not vaccinate is also not a violation of informed consent.”

 

http://www.skepticalraptor.com/skepticalraptorblog.php/immunization-requirements-neither-discriminate-nor-segregate/

Herd Immunity and Immunization Policy: Response to Holland and Zachary

Blog post:

“This piece is a summary of Herd Immunity and Immunization Policy: The Importance of Accuracy, soon to be published in v. 94 of Oregon Law Review.

In an article that was published in the Oregon Law Review in 2014, authors Holland and Zachary claimed that school immunization mandates are inappropriate because they reject the concept that herd immunity works.

This piece will explain  why Holland and Zachary’s analysis is simply incorrect. And let’s be clear–there is a legitimate debate about  whether school immunization mandates are appropriate, policy wise, as a response to non-vaccination.”http://www.skepticalraptor.com/skepticalraptorblog.php/yes-herd-immunity-works/

 

Full article: http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2591591

 

Abstract: 

This article explains why claims made by Holland and Zachary in their article, Herd Immunity and Compulsory Childhood Vaccination: Does the Theory Justify the Law?, are incorrect and untenable. The authors misunderstand the nature of society’s duty to children, which is not similar to duty in torts but draws from the state’s role in protecting vulnerable children when their parents do not act in their best interests. Their view of herd immunity is also incorrect: the article does not well define the term, ignores data showing that herd immunity works, and their discussion of their two examples is inaccurate: close examination of those examples actually shows the role of herd immunity in protecting against disease. Finally, the authors’ analysis does not support their claim that mandates are unnecessary.”

 

Measles, exemptions, legal changes

“In reaction to the outbreak, politicians in many states proposed bills tightening exemptions from school immunization requirements.[10] This short article examines the law and legislative trends in this area.

Several states have exemption rates that are too high to preserve herd immunity. Oregon, at 7.1%, is at a high risk.[42] California has a low rate of exemptions overall, but has areas where rates of immunization are low.[43]Maine, Michigan, and Washington all have high exemption rates.[44] These states all face a real risk of disease. At least tightening these exemptions is a powerful idea.

Religious exemptions are completely inappropriate due to their vulnerability to abuse and the unfairness of putting the child at risk for beliefs the parents hold and the child is too young to choose. On the other hand, however, a system that does not leave parents any way to refuse vaccination is too extreme.

At the very least, since the public health argument is not as strong for homeschoolers, it makes sense to exempt children who are homeschooled from immunization requirements. Offering a hard-to-get personal belief exemption is preferable to a religious exemption, but should be harder to obtain than even the educational requirement currently in place.  Ideally, getting the exemption would require a daylong course with a short quiz at its end. The course requirement would help limit exemptions to only the very small set of parents with the strongest feelings against vaccines, parents who believe that asking them to vaccinate is akin to asking them to poison their child.”

 

http://wakeforestlawreview.com/2015/03/vaccines-measles-and-rights/

Article: Tools for dealing with Childhood Vaccination Crisis

Responding to the Childhood Vaccination Crisis: Legal Frameworks and Tools in the Context of Parental Vaccine Refusal


Dorit Rubinstein Reiss


University of California Hastings College of the Law

Lois A. Weithorn


University of California Hastings College of the Law

March 4, 2015

Buffalo Law Review, Vol.63, August 2015, Forthcoming
UC Hastings Research Paper No. 134 


Abstract: 

In spite of vaccines’ impressive record of safety and effectiveness, some families have failed to immunize their children, denying those children protection against vaccine-preventable diseases. In the last years, rates of nonvaccination, as well as rates of partial adherence to vaccination schedules, have been increasing. Predictably, this has led to outbreaks of vaccine-preventable diseases. This article examines potential legal responses to this crisis. It sets out the legal framework governing childhood vaccination policies, highlighting the strength of governmental authority when the state’s police power to protect the public health and its parens patriae authority to protect the health of children and other vulnerable members of society converge, as they do in this context. After describing the phenomenon of nonvaccination, the reasons leading to parental refusals and the effects of those refusals, the article provides a menu of legal tools that can be used to improve vaccination rates.

 

 

http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2574001

Italy Opens Investigation into child’s death from SSPE

“So, what do we have here?

At this point, no charges for manslaughter were filed against anyone. What we have is the start of an inquiry into the girl’s death, following a complaint by her parents. We do not know who, if anyone, will be charged with anything in connection to this.
A four-year-old daughter of wealthy, well-educated parents – no doubt a well nourished child – was left unvaccinated against measles, a preventable disease. Vaccination rates against it in Italy are around 90% for one dose of MMR and less than 85% for the second dose. As a result, cases are high in Italy: 3,943 reported cases in 2013 and 1,680 in 2014. MMR protects 95% of those that get one dose and 99% of those that get two doses (pdf). See the CDC information on MMR vaccine effectiveness. Those left unvaccinated – like little Clara was – are substantially more at risk of getting the disease. Clara did.
Little Clara got a generally fatal, horrible complication of the disease described by anti-vaccine activists as benign, mild or “a common childhood illness”.”

 

http://www.skepticalraptor.com/skepticalraptorblog.php/child-pays-price-for-anti-vaccine-misinformation/

Italian Court overturns decision that compensates for autism

In June 2012, a labor court in Rimini, Italy granted compensation to the family of a child named Valentino Bocca. The family alleged that the MMR vaccine Valentino received as part of his childhood immunizations caused his autism, and the court compensated them on that theory. The lower court’s decision was never on very firm grounds: it depended in part on testimony of an expert decision who relied, in turn, on Andrew Wakefield’s debunked studyBut it was used by anti-vaccine activists as part of their claims.

On February 13, 2015,  a Court of Appeals in Bologna overturned the decision–a decision that apparently lead to a decline in MMR immunization rates in Romagna, an historical district of Italy.

 

The Court of Appeal accepted the appeal filed by the Ministry of Health (ministero della Sanità). The expert appointed by the court of appeal highlighted that there is no scientific evidence supporting a link between vaccines and autism. The expert highlighted that the lower court expert was wrong to rely on the study by Andrew Wakefield, a study debunked and rejected by the scientific community.

The expert also highlighted that while there is some temporal link between Valentino’s MMR vaccine and autism, in the sense that the diagnosis of autism followed the vaccine, the temporal connection was not strong and does not itself support a causal connection.

The expert, Dr. Lodi, stated that “In the medical history of the child there is not an objective temporal correlation between the gradual emergence of autistic disorders and the MMR vaccine, there is only the fact that the two events occur one before the other, but as shown, this is not sufficient to relate the two events “.

The Bocca’s lawyer, Luca Ventaloro, claimed that he will appeal to the Supreme Court of Cassation (Corte Suprema di Cassazione), the highest court in Italy.”

 

http://www.skepticalraptor.com/skepticalraptorblog.php/italian-mmr-autism-decision-overturned/

Do vaccine mandates or liability violate informed consent?

“Several people have asked me whether having school mandates is in tension with the idea of informed consent. The answer is no. While school mandates have some effect on parental autonomy, the doctrine of informed consent should not be conflated with autonomy.

For a somewhat different reason, imposing sanctions on those who do not vaccinate is also not a violation of informed consent.”

http://www.skepticalraptor.com/skepticalraptorblog.php/vaccine-informed-consent-mandates-liability/

 

And: http://www.dailykos.com/story/2015/02/10/1363603/-Vaccine-Informed-Consent-Mandates-and-Liability

Influenza Mandates and Health Care Workers:


First Do No Harm: Protecting Patients Through Immunizing Health Care Workers.

Dorit Rubinstein Reiss


University of California Hastings College of the Law

 

Rene F. Najera


John Hopkins University, Bloomberg School of Public Health
Abstract: 

To protect vulnerable patients, hospitals increasingly adopt policies requiring health care workers to be vaccinated against influenza. More than twenty states have also enacted statutes or regulations on the topic. A small minority of health care workers oppose the requirement, and several have appealed to our courts of justice.
This article examines the legal issues surrounding influenza mandates for health care workers, including the constitutional framework, federal employment discrimination statutes, and the effect of collective bargaining. It argues that requiring vaccination for health care workers is both ethical and appropriate. While better done via state statute, hospitals have the authority to require vaccination from their workers – and are not, arguably, required to exempt any workers that do not have medical barriers to vaccination.

 

 

http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2562091

Italian Decision on Autism and Vaccines: Rimini Court decision

“On the 23 of September, 2014 a judge in the Labor Court of Milan awarded compensation (pdf, translated from Italian) to a child on the theory that the hexavalent vaccine manufactured by GSK – which protects children against polio, diphtheria, tetanus, pertussis, invasive disease Haemophilus influenzae type B and hepatitis B – caused the child’s autism. The decision was based on an expert’s opinion that made several extremely problematic arguments, arguments that go against the scientific evidence. It has been criticized by the Italian scientific community (translated summary, pdf), and is, apparently, being appealed.

This post explains the reasoning of the decision, and why it is fundamentally flawed.”

 

http://www.skepticalraptor.com/skepticalraptorblog.php/italian-court-awards-compensation-autism-problem-unreliable-expert/

Workers, Disneyland and Measles

This guest post, hosted by The Vaccine Advocate, asks:

“In response to this, Disneyland asked all employees who came into contact with the five sick employees to submit “vaccination records or submit to a blood test that shows they have built immunity to the disease.” And any employees who could not confirm their immunity status were asked to stay home on paid leave. So wait, if Mickey Mouse can’t confirm his immunity, does he have to stay home from work? Can Disneyland even do that? What about Mickey’s rights?”

 

http://thevaccineadvocate.com/2015/02/02/disneyland-tells-employees-get-shots-or-stay-home-whats-the-law-say-about-that/

Tort liability for failure to vaccinate:

These two blog posts and article makes the argument that if one family’s failure to vaccinate harms another, the non-vaccinating family should be liable in torts for the damages.

 

Tort liability for failure to vaccinate: http://shotofprevention.com/2013/09/12/legal-responsibilities-in-choosing-not-to-vaccinate/; see also: http://blogs.law.harvard.edu/billofhealth/2013/06/24/guest-post-no-liability-for-failure-to-vaccinate-the-case-has-not-been-made-a-response-to-mary-holland/

Full article: http://www.lawschool.cornell.edu/research/JLPP/upload/Reiss-final.pdf

 

Law and Vaccines: A Manual

This is the manual about law and vaccines prepared in collaboration between myself, Amanda Naprawa and Voices for Vaccines. It covers a range of issues.

 

Legal Topics: 

Vaccines: Regulating the Product

Protecting the Public Health: State and Federal Law

Disease Prevention: The CDC’s Role

Immunization Schedules

School Immunization Requirements

Religious Exemptions

Vaccines: Individual Choice and Community Welfare

Community vs. Individual: Achieving a Balance of Rights

Religion, Employment, and Rights

Parental Rights and the Child’s Right to Health

Informed Consent

Informed Refusal: The Risks of Not Vaccinating

Increasing Immunization Rates: The Role of the Law 

Education.

Government-Funded Incentives and Subsidies

Imposing Costs: Civil Lawsuits.

Imposing Costs: No-Fault Options

Limiting Unvaccinated Individuals’ Access

Vaccine Refusal and Criminal Law

Forced Vaccination

Other Issues: 

Vaccine Injuries: Compensating the Rare Adverse Event.

NVICP vs. the Courts

Are Vaccines “Unavoidably Unsafe?”

 

 

http://www.voicesforvaccines.org/wpvfv/wp-content/uploads/2014/10/Vaccines-and-the-Law-Toolkit.pdf

Why a law allowing teen agers to consent to certain vaccines is justified

This post, written with Arthur Caplan, responds to Alan Phillips’ claim that a law proposed in New York, a law that would allow teen agers to consent to certain vaccines – the HPV and Hepatitis B vaccine – without needing parental permission is unconstitutional and illegal. The post explains why the law is both legal and justified.

 

  1. http://www.skepticalraptor.com/skepticalraptorblog.php/allowing-teenagers-choose-vaccination-constitutional-desirable/

Responding to Maine’s Coalition for Vaccine Choice’s Law:

The Maine Coalition for Vaccine Choice proposed a very problematic law that could mislead parents into not vaccinating because of false claims and would go against public policy. This post explains the problems with the law.

 

 

  1. http://www.skepticalraptor.com/skepticalraptorblog.php/maine-coalition-vaccine-choice-legislation-bad-premises-bad-law/

Walker-Smith’s acquittal does not exonerate Andrew Wakefield

This post responds to the anti-vaccine claim that by reversing the finding that Prof. John Walker-Smith, the senior author on Andrew Wakefield’s Lancet paper, was guilty of serious ethical violations, a British Court also cleared Andrew Wakefield from the findings of a General Medical Council panel against him. No, that is incorrect.

 

http://www.skepticalraptor.com/skepticalraptorblog.php/refuting-tropes-andrew-wakefield-wronged/