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).
“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.”
“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. ”
“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
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.”
Article in the Daily Journal:
UC Hastings (DJ-3.30.15)
“In reaction to the outbreak, politicians in many states proposed bills tightening exemptions from school immunization requirements. 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. California has a low rate of exemptions overall, but has areas where rates of immunization are low.Maine, Michigan, and Washington all have high exemption rates. 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.”
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
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.
“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”.”
“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.”
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.
Vaccines: Regulating the Product
Protecting the Public Health: State and Federal Law
Disease Prevention: The CDC’s Role
School Immunization Requirements
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 Refusal: The Risks of Not Vaccinating
Increasing Immunization Rates: The Role of the Law
Government-Funded Incentives and Subsidies
Imposing Costs: Civil Lawsuits.
Imposing Costs: No-Fault Options
Limiting Unvaccinated Individuals’ Access
Vaccine Refusal and Criminal Law
Vaccine Injuries: Compensating the Rare Adverse Event.
NVICP vs. the Courts
Are Vaccines “Unavoidably Unsafe?”
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.
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.
Examination of a recent Oregon Supreme Court case that upheld a decision to vaccinate children in foster care when the parents objected – also review of other court decisions on topic:
The district court in Phillips upheld denying exemption and excluding unvaccinated children from school during an outbreak. We should mobilize.
I did not write about the appeal results in the 2nd Circuit court of appeals because there’s no new ground there. But here is a good analysis by Andy Baker from the Network for Public Health Law: https://www.networkforphl.org/the_network_blog/2015/01/21/539/public_health_in_court_school_exclusion_of_unvaccinated_children
The effect of Hobby Lobby on school immunization requirements and especially on religious exemptions.
A family in France criminally charged for not vaccinating a young child.
The fifth post in a series published with Shot of Prevention examining the tension between a child’s right to health and parental rights, and what can be done to protect children. This post looks at school immunization requirements and how they can protect children from non-vaccination.
The fourth post in a series published with Shot of Prevention examining the tension between a child’s right to health and parental rights, and what can be done to protect children. This post examines under what circumstances can parental rights be completely overcome: when can children be vaccinated in spite of parental resistance.
The third post in a series published with Shot of Prevention examining the tension between a child’s right to health and parental rights, and what can be done to protect children. This post examines what role if any can criminal law have in the non-vaccination context.