Court Cases and School Mandates
How do exemptions to mandated vaccines apply? Some people will have medical conditions that increase the risk for adverse effect and should not receive vaccines. Therefore, all state vaccination laws have exemptions for children with medical conditions. Others have religious beliefs that are in opposition to vaccination, while some may oppose vaccination on philosophical or personal grounds. Not all vaccines may be opposed, but rather, may oppose the concept of mandatory vaccination or being given specific vaccines. So what then is a parent’s constitutional right to a religious exemption from mandated vaccination? Challenges to mandated vaccination laws which are based on religious or philosophical beliefs have led many courts to state that no constitutional right exists to religious or philosophical exemptions.
In 1879 the Supreme Court ruled that freedom of belief is absolute, freedom of action is not. Acts or conduct of our citizens must conform to all reasonable regulations adopted by governmental agencies acting within the scope of their authority. In other words, religious followers have a right to their beliefs but have no right to endanger others by practice of their beliefs as scientists see it.
Further authority to force vaccination of children comes under the doctrine of parens patriae in which the state asserts authority over child welfare. In the 1944 case of Prince v. Massachusetts, which involved child labor under an asserted right of religious freedom, the U.S. Supreme Court summarized the doctrine, noting that:
Neither rights of religion nor rights of parenthood are beyond limitation. Acting to guard the general interest in youth’s well being, the state as parens patriae may restrict the parent’s control by requiring school attendance, regulating or prohibiting the child’s labor, and in many other ways. Its authority is not nullified merely because the parent grounds his claim to control the child’s course of conduct on religion or conscience. Thus, he cannot claim freedom from compulsory vaccination for the child more than for himself on religious grounds. The right to practice religion freely does not include liberty to expose the community or the child to communicable disease or the latter to ill health or death. (321 U.S. at 166-7, 64 S.Ct. at 442)
Religious refusal of medical treatment may be penalized by the state under this clause. There was a leading case in 1903 in N.Y. that stated ‘the proposition that the right to practice religion freely does not include liberty to expose the community of a child to communicable disease, nor to expose the child himself to ill-health and death.’
When the exercise of the right to religious liberty comes into conflict with public health laws, medical practice acts, parental obligations to provide medical care to minors, courts were upholding the validity of public health laws.
Jacobson was essentially a public health law case. In 1905, the U.S. Supreme Court issued a landmark ruling in Jacobson v. Massachusetts, which upheld the right of states to force vaccination. The Court declared that smallpox vaccination, under health regulations, was reasonable and that it did not violate the liberty rights under the Fourteenth Amendment to the U.S. Constitution. Police power could be used because it is the authority reserved to the states by the Constitution and embraces “such reasonable regulations established directly by legislative enactment as will protect the public health and the public safety” (197 U.S. at 25, 25 S.Ct. at 361).
In Jacobson, the Commonwealth of Massachusetts had enacted a statute that authorized local boards of health to require vaccination. Jacobson challenged his conviction for refusal to be vaccinated against smallpox as required by regulations of the Cambridge Board of Health. While acknowledging the potential for vaccines to cause adverse events and the inability to determine with absolute certainty whether a particular person can be safely vaccinated, the Court specifically rejected the idea of an exemption based on personal choice. To do otherwise “would practically strip the legislative department of its function to [in its considered judgment] care for the public health and the public safety when endangered by epidemics of disease” (197 U.S. at 37, 25 S.Ct. at 366). The Court elaborated on the tension between personal freedom and public health inherent in liberty: “The liberty secured by the Constitution of the United States to every person within its jurisdiction does not import an absolute right in each person to be, at all times and in all circumstances, wholly freed from restraint. There are manifold restraints to which every person is necessarily subject for the common good. On any other basis organized society could not exist with safety to its members” (197 U.S. at 26, 25 S.Ct. at 361).
The beginning of the Lochner Era in constitutional law began in 1905-1937. Lochner Era represented an unwarranted judicial interference with democratic control over the economy to safeguard public health and the environment. Lochner was a form of judicial activism that was unreceptive to protective and redistributive regulation. Lochner vs. N.Y.
In 1922, the Supreme Court addressed the constitutionality of childhood vaccination mandates in Zucht v. King. The Court denied a due process Fourteenth Amendment challenge to the constitutionality of city ordinances that excluded children from school attendance for failure to present a certificate of vaccination holding that “these ordinances confer not arbitrary power, but only that broad discretion required for the protection of the public health”. (260 U.S. at 177, 43 S.Ct. at 25).
The Numberg Code was initiated in 1947.
“This judgment established a new standard of ethical medical behavior for the post World War II human rights era. Amongst other requirements, this document enunciates the requirement of voluntary informed consent of the human subject. The principle of voluntary informed consent protects the right of the individual to control his own body.
“This code also recognizes that the risk must be weighed against the expected benefit, and that unnecessary pain and suffering must be avoided.
This code recognizes that doctors should avoid actions that injure human patients.
The principles established by this code for medical practice now have been extended into general codes of medical ethics.
Forward to 1951, there was a conviction for violation of the Georgia statue which required vaccines as a prerequisite for school attendance, which was appealed on the grounds that it violated freedom of religion. It was also a N.Y. decision in 1944.
The civil rights movement also changed the social structure which began with Brown vs. Board of Education in 1951.
The 1971 U.S. Supreme Court in Lemon v. Kurtzman (Lemon v. Kurtzman, 403 U.S. 602, 91 S.Ct. 2105) was a case involving state supplementation of parochial school salaries, and defined a three-pronged test for determining whether a state religious accommodation complies with the Establishment Clause: “First, the statute must have a secular legislative purpose; second, its principal or primary effect must be one that neither advances nor inhibits religion; finally, the statute must not foster ‘an excessive government entanglement with religion’ ” (403 U.S. at 612-3, 91 S.Ct. at 2111 [citation omitted] [quoting Walz v. Tax Commission, 397 U.S. 664, 674, 90 S.Ct. 1409, 1414 (1970)]).
The 1972 Wisconsin vs. Yoder case (Wisconsin v. Yoder, 406 U.S. 205, 92 S. Ct. 1526) wasn’t about vaccine mandates but still centered on the right to practice ones religion. Members of the Amish religion were convicted of violating Wisconsin’s compulsory school-attendance law by declining to send their children to public or private school after they had graduated from the eighth grade. Amish objection to formal education beyond the eighth grade is firmly grounded in their central religious concepts. ”Although the trial court in its careful findings determined that the Wisconsin compulsory school-attendance law “does interfere with the freedom of the Defendants to act in accordance with their sincere religious belief” it also concluded that the requirement of high school attendance until age 16 was a “reasonable and constitutional” exercise of governmental power, and therefore denied the motion to dismiss the charges. The Wisconsin Circuit Court affirmed the convictions. The Wisconsin Supreme Court, however, sustained respondents’ claim under the Free Exercise Clause of the First Amendment and reversed the convictions. A majority of the court was of the opinion that the State had failed to make an adequate showing that its interest in “establishing and maintaining an educational system overrides the defendants’ right to the free exercise of their religion.” (49 Wis. 2d 430, 447, 182 N. W. 2d 539, 547 1971).
Court claims of religious freedom under the Free Exercise Clause do prevail, such as the case of Wisconsin v. Yoder in 1972. “[W]here fundamental claims of religious freedom are at stake,” the Court will not accept a state’s “sweeping claim” that its interest in compulsory education is compelling; “despite its admitted validity in the generality of cases, we must searchingly examine the interests that the State seeks to promote . . . and the impediment to those objectives that would flow from recognizing the claimed Amish exemption” (406 U.S. at 221, 92 S.Ct. at 1536).
The Frazee vs. Illinois case in 1989 centered on the refusal of a temporary retail position because the job would have required him to work on Sunday in violation of his personal religious beliefs, and was thus denied unemployment compensation benefits.
“Held: The denial of unemployment compensation benefits to appellant on the ground that his refusal to work was not based on tenets or dogma of an established religious sect violated the Free Exercise Clause of the First Amendment as applied to the States through the Fourteenth Amendment. Sherbert v. Verner, 374 U. S. 398, Thomas v. Review Bd. of Indiana Employment Security Div., 450 U. S. 707, and Hobbie v. Unemployment Appeals Comm’n of Florida, 480 U. S. 136, rested on the fact that each of the claimants had a sincere belief that religion required him or her to refrain from the work in question, not on the consideration that each of them was a member of a particular religious sect or on any tenet of the sect forbidding such work. While membership in a sect would simplify the problem of identifying sincerely held beliefs, the notion that one must be responding to the commands of a particular religious organization to claim the protection of the Free Exercise Clause is rejected. The sincerity or religious nature of appellant’s belief was not questioned by the courts below, and was conceded by the State, which offered no justification for the burden that the denial of benefits placed on appellant’s right to exercise his religion. The fact that Sunday work has become a way of life does not constitute a state interest sufficiently compelling to override a legitimate free-exercise claim, since there is no evidence that there will be a mass movement away from Sunday employment if appellant succeeds on his claim.” Pp. 489 U. S. 832-835.
In the 2001 Wyoming Hepatitis B case, the Pages successfully sued the Wyoming State Department of Health for denying the Pages’ request for a religious exemption from the Hepatitis B vaccine. The Wyoming Supreme Court held that the Health Department had to grant the exemption request and had no right or ability to consider the sincerity or credibility of those requesting exemptions.
An Arizona Court of Appeals rejected the argument that an individual’s right to education would trump the state’s need to protect against the spread of infectious diseases short of confirmed cases of measles in the particular school. The court in Maricopa County Health Department v. Harmon took action by excluding unvaccinated children from school when there is a reasonably perceived, but unconfirmed, risk for the spread of measles (156 Ariz. at 166, 750 P.2d at 1369). The court in Maricopa specifically noted that Jacobson did not require that epidemic conditions exist to force vaccination. (156 Ariz. at 166, 750 P.2d at 1369)
Arkansas had introduced a religious exemption in 1967. The exemption then stated that vaccines could be exempted if it conflicts with the religious tenets and practices, but you had to be a member of a recognized church, along with statements from the church, etc. In the 2002, McCarthy vs. Boozeman and Boone vs. Boozeman case, the state’s religious exemption was challenged based on the establishment and free exercise clauses of the first amendment, and equal protection clauses of the 14th Amendment. The court agreed and found that the exemption provision was unconstitutional under the test in Lemon vs. Kurtzman, which violates the establishment clause. However, it upheld the mandated vaccine laws. In 2003, the Arkansas General Assembly rewrote the religious exemption provision and added a philosophical exemption.
The First Amendment
Religious freedom, or the right to believe in your religion, is considered absolute under the First Amendment. However, the freedom to act in accordance with one’s religious beliefs “remains subject to regulation for the protection of society.” This was stated in the U.S. Supreme Court case of Sherbert v. Verner in 1963. This established a balancing test for determining whether a regulation violated a person’s First Amendment right to free exercise of religion. The test, which prevailed until 1990, required the government to justify any substantial burden on religiously motivated conduct by a compelling government interest and by means narrowly tailored to achieve that interest (374 U.S. at 406-8, 83 S.Ct. at 1795-6).
Forty-eight states do provide religious exemption laws today. However, due to the earlier court rulings, both parens patriae and police power grounds apply and the U.S. Supreme Court upholds state interest in mandating vaccination of children by sighting these reasons; a health threat to the community and to the children themselves, disease risks, and mandatory vaccination should also meet the criterion of Sherbert.
In another court case, before Yoder, the Wright v. DeWitt School District, (Wright v. DeWitt School District, 238 Ark. 906, 385 S.W.2d 644 Ark. 1965), a decision and enactment of a statutory religious exemption by the Arkansas Supreme Court held that no First Amendment right existed to a religious exemption given the state’s compelling interest in mandating vaccination under its police power to protect the public health. (238 Ark. at 913, 385 S.W.2d at 648).
The compelling interest test is moot now due to a U.S. Supreme Court ruling that significantly lowered the bar for states to prevail. In 1990, a decision in Employment Div., Dept. of Human Resources of Oregon v. Smith, (Employment Div., Dept. of Human Resources of Oregon v. Smith, 494 U.S. 872, 110 S.Ct. 1595 (1990) the Supreme Court rejected the compelling interest test and established a new standard that states: “the right of free exercise does not relieve an individual of the obligation to comply with a ‘valid and neutral law of general applicability on the ground that the law proscribes (or prescribes) conduct that his religion prescribes (or proscribes)” (494 U.S. at 879, 110 S.Ct. at 1600 [quoting United States v. Lee, 455 U.S. 252, 263, n. 3, 102 S.Ct. 1051, 1058, n. 3 (1982)]).
In 1993, Congress attempted to legislatively override the ruling in Smith by enacting the Religious Freedom Restoration Act of 1993 (RFRA). This would bring back the compelling interest test as the standard for considering the constitutionality of free exercise claims. In 1997, the U.S. Supreme Court in the case of City of Boerne v. Flores (City of Boerne v. Flores, 521 U.S. 507, 117 S.Ct. 2157 refused to allow the Religious Freedom Restoration Act. They stated that Congress had exceeded its constitutional authority in implementing the statute (521 U.S. at 510-37, 117 S.Ct. at 2160-72). Therefore, the Smith standard is the current law.
The Establishment Clause of the First Amendment establishes a constitutional limit within which a state which may accommodate a religious exemption based on a law of general application. This includes whether an exemption is allowed and how detailed the exemption must be defined.
In Brown v. Stone in 1979, the Mississippi Supreme Court vetoed the religious exemption that appeared in the Mississippi school vaccination statute. They held that the statutory religious exemption violated the Equal Protection Clause of the Fourteenth Amendment because it would “require the great body of school children to be vaccinated and at the same time expose them to the hazard of associating in school with children exempted under the religious exemption who had not been immunized.” (378 So.2d at 223).
In Sherr v. Northport-East Northport Union Free School District in 1987, the plaintiffs were denied a religious exemption under the state’s religious exemption statute by the school district because they were not “bona fide members of a recognized religious organization” whose teachings oppose vaccination, as required by New York law (672 F.Supp. at 84 [quoting subsection 9 of N.Y. Pub. Health L. § 2164]). The U.S. District Court for the Eastern District of New York stated that New York’s limitation of the religious exemption violated the Establishment and Free Exercise clauses of the First Amendment. This limitation violated the Establishment Clause by going against two prongs of the Lemon test. The first by inhibiting the religious practices of individuals who oppose vaccination of their children on religious grounds but are not members of a religious organization recognized by the state and two by restricting the exemption to “recognized religious organizations” requires that the government involve itself in religious matters to an inordinate degree through such government approval (672 F.Supp. at 89-90. The court also stated that the limited language violated the Free Exercise Clause because no compelling societal interest existed to justify the burden placed on the free religious exercise of “certain individuals while other persons remain free to avoid subjecting their children to a religiously objectionable medical technique because they may belong to a particular religious organization to which the state has given a stamp of approval” (672 F.Supp. at 90-1). There “surely exist less restrictive alternative means of achieving the state’s aims than the blatantly discriminatory restriction . . . the state has devised” (672 F.Supp. at 91). By striking down New York’s limitation, the court stated that “sincerely held religious beliefs” in opposition to vaccination, whether or not as part of a recognized religion, should suffice (672 F.Supp. at 98).
The 1st Amendment to the Constitution of 1791 declares: “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof…” These provisions are limitations only in federal government. There is no language requiring states to guarantee religious liberty.
The Free Exercise and Establishment Clauses have been held applicable to the States through the Due Process Clause of the Fourteenth Amendment. (Cantwell v. Connecticut, 310 U.S. 296, 303-4, 60 S.Ct. 900, 903 (1940).
Cude v. State: Court Rejects Religious Objection to Child’s Vaccination. (237 Ark. 927, 377 S.W.2d 816 1964) “Appellants, Archie Cude and his wife, Mary Frances, are the parents of eight children, three of whom are between the ages of 7 and 15… The children are not in school for the reason that the school authorities will not permit them to attend school because they have not been vaccinated against smallpox. The Cudes will not permit such vaccinations; they contend that it is contrary to their religion.” The court thus appointed Miss Ruth Johnston, Director of the Child Welfare Division of the State Welfare Department, as guardian of the children.
”Article 2, Sec. 24 of the Constitution of Arkansas provides: “All men have a natural and indefeasible right to worship Almighty God according to the dictates of their own consciences; no man can, of right, be compelled to attend, elect or support any place of worship; or to maintain any ministry against his consent. No human authority can, in any case or manner whatsoever, control or interfere with the right of conscience; and no preference shall ever be given, by law, to any religious, establishment, denomination or mode of worship above any other.”, The foregoing provision of the Constitution means that anyone has the, right to worship God in the manner of his own choice, but it does not mean, that he can engage in religious practices inconsistent with, the peace, safety and health of the inhabitants of the, State, and it does not mean that parents, on religious grounds, have the right to deny their children an education.”
In Davis v. State, (294 Md. 379, 451 A.2d 107 Md. 1982) this held that “limiting religious exemption to children whose parents were “members” or “adherents” of a “recognized church or religious denomination” opposing vaccination violated the Establishment Clause. On the basis of rules of statutory construction in Maryland, the court severed the offending religious exemption from the statute and upheld the conviction of Davis under the remaining statute that compelled vaccination (294 Md. at 382-5, 451 A.2d at 114-5). Rules of statutory construction vary so that in the Sherr case the court vetoed the limiting “bona fide members of a recognized religious organization” language but upheld the religious exemption. In addition, the court enjoined enforcement of the “bona fide” language as to one of the two sets of plaintiffs, who otherwise qualified, and further enjoined the state from enforcing the offending language in the future (672 F.Supp. at 97-9).
Individual rights were described in broad terms when it came to the Bill of Rights. In democracy, with no official ideology or religion, any interpretation of such abstract concepts could be attacked by the justices own personal philosophy. During the second half of the 20th century, the U.S. Supreme Court recognized that liberty can be protected by the 14th Amendment including most of the rights guaranteed by the Bill of Rights.
1868: “No state shall make or enforce any law which shall abridge the privileges and immunities of citizens of the United States; nor shall any state deprive any person of life, liberty, or property, without due process of law; nor deny any person within its jurisdiction the equal protection of the laws.”
Religious freedom concept was written into the Federal and State Constitutions. Article VI of the Federal Constitution in 1789 states: “No religious test shall ever be required as a qualification to any office or public trust under the United States…”
Under the U.S. Constitution, most power to protect the public’s health and safety or police powers is reserved for the states. Each state passes its own laws mandating vaccines for school and permits various exemptions. What is police power? It is power inherent in the state to enact and enforce laws to protect and promote the health, safety, morals, order, peace, comfort, and welfare of the people. Power was possessed by the states before the federal constitution was adopted in 1789, and was not surrendered to the national government at that time. Public health is primarily the responsibility of the states and they delegate this duty to political subdivisions and agencies such as school boards, counties, and the Board of Heatth.
What about Philosophical opposition? Should it also be included as religious? Two conscientious or philosophical objector cases and decisions by the U.S. Supreme Court points out that some philosophical opposition to vaccination may be religious and incorporated into a religious exemption, regardless of whether a state law details or provides for a philosophic exemption.
In 1965 United States v. Seeger, (United States v. Seeger, 380 U.S. 163, 85 S.Ct. 850) and 1970 Welsh v. United States, (Walsh v. United States, 398 U.S. 333, 90 S.Ct. 1792) the Court interpreted “religious,” as it appeared in a federal statutory religious-based conscientious objector exemption from military conscription, very expansively to extend beyond traditional religious beliefs. Seeger defined the test as “[a] sincere and meaningful belief which occupies in the life of its possessor a place parallel to that filled by the God of those admittedly qualifying for the exemption” (380 U.S. at 176, 85 S.Ct. at 859). The Court elaborated in Welsh: “to be ‘religious’ . . . this opposition . . . [must] stem from . . . moral, ethical, or religious beliefs about what is right and wrong and that these beliefs be held with the strength of traditional religious convictions” (398 U.S. at 340, 90 S.Ct. at 1796). The Welsh Court, however, clarified that “moral, ethical, or religious principles” do not incorporate “considerations of policy, pragmatism, or expediency” (398 U.S. at 342-3, 90 S.Ct. at 1798).
In the 1988 court case of Mason v. General Brown Central School District, (Mason v. General Brown Central School District, 851 F.2d 47 (2d Cir. 1988) they rejected fear of the possible side effects from vaccination, although it was based on strong convictions, near the level of religious beliefs because of evidence that the plaintiff’s beliefs were “simply an embodiment of secular chiropractic ethics.”(851 F.2d at 51-2).
Vaccination laws and mandates were first enacted to control epidemic diseases. Today, they are also used to increase vaccine coverage to protect the public’s health even in the absence of epidemics. Their constitutional basis rests in the police power of the state and in parens patriae doctrine. Although most states allow religious exemptions and some allow philosophical, no constitutional right exists. Courts, however, have generally upheld these exemptions. The current laws can be expected to be upheld by the courts as long as the balance of protecting the public health or the ‘herd’ is achieved.
The Jacobson case in 1905 was based on public health and safety issues. The Hepatitis B and HPV vaccines, along with others coming up the pipeline, don’t meet this basis as they are not medically essential in preventing the spread of disease. The concern in the 20th century was government power itself. Today, it is the medical unnecessary exercise of power because many of the vaccines being mandated today are not medically necessary to prevent disease from spreading, or to protect public health.
Model State Emergency Power Act was a law designed to provide responsible state officials with powers needed to detect and contain a potentially catastrophic disease outbreak and protect individual rights and freedoms. Many states have passed some version of this law.
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