This article uses the very recent decision of the Supreme Court of Oregon in Department of Human Services v. S.M. (pdf) to discuss a specific question: if parents lose custody of their children, can they still refuse immunizations? The Oregon Supreme Court joins others in saying that the answer is no. As discussed, this is the right result.
Loss of custody and immunization is a key issue of parental rights on several levels. Let’s discuss the case in Oregon in detail
A neighbor of the family in question notified DHS that the family’s eight children were living in bad condition. A caseworker found “the house bestrewn with garbage and food, the children dirty, and the children’s educational needs barely addressed by mother’s home-schooling curriculum.” The father was also allegedly violent. The children were removed from home, and eventually the Department of Human Services (DHS) was made their legal guardian. The parents were not, however, expressly found unfit to make medical decisions for the children.
Several months later, DHS notified the court that “the children needed to be immunized against common childhood diseases both for their own safety and also for the safety of other children at their school.”
The parents objected, citing their right to make medical decisions for their children, and the mother also raised religious objections that seemed to center on the use of fetal cells in vaccines. The juvenile court authorized immunizations and the Court of Appeals confirmed. The parents appealed to the Supreme Court.
The Court’s Decision
The Supreme Court’s decision did not address constitutional issues. Instead, it focused on interpreting Oregon’s statutes. In essence, the Court concluded that when the state has temporary guardianship of children it can make certain medical decisions for those children, including the decision to vaccinate. The court seemed most persuaded by the DHS’s pointing out that the statute authorized it to approve surgery – and concluded that the statute clearly allowed the “less invasive and more routine” childhood immunizations.
The rest of the decision examined whether later statutes changed the authorization, and concluded that they did not.
The Court only shortly addressed the tension between parental rights and the children’s welfare, though it recognized that parental constitutional rights might have been implicated (the parents also raised a due process claim, but the Court simply said it did not have enough specifics). The Court concluded that the procedural safeguards that DHS has adopted to make sure the parental perspective is heard showed that the department gave weight to parental rights. It did not, however, directly analyze whether immunizing the children would be a violation of parental rights. Though by ordering that immunization it strongly implied that the answer is no.
Just to be clear, this is an important decision: it determines that children in the state’s custody in Oregon, whether that custody is temporary or permanent, may be immunized over their parents objection. But it is not a broad constitutional decision that can serve as persuasive precedent supporting children’s right to health in other states, except for adding to the body of precedent that permits immunizing children in foster care even if parents object.
The Court of Appeal’s decision did address the constitutional issues (Dept. of Human Services v. S.M., 256 Or App 15, 300 P3d 1254 (2013). But it did so shortly – basically concluding that the custody awarded to the state overcomes the parents’ right to refuse immunizations, even if their argument is religious. This is especially significant since Oregon does offer a nonmedical exemption from school immunization requirements, though making use of that exemption now requires filling an educational requirement first.
In this decision, Oregon follows other states, as summarized in the Court of Appeals’ decision. Both in North Carolina (In re Stratton, 153 N.C.App. 428, 571 S.E.2d 234, rev. den., 356 N.C. 436, 573 S.E.2d 512 (2002),) and in Georgia (In re C.R., 257 Ga.App. 159, 570 S.E.2d 609 (2002) courts interpreted statutory requirements to permit the state to immunize children in its care over parental objections, even when the custody is temporary.
A federal district court, examining the constitutional question, also upheld immunizing children in foster care, citing Jacobson v. Massachusetts, 197 U.S. 11, 26 (1905) (which upheld applying a criminal sanction to those who refuse to vaccinate, in that case, a fine) and Prince v. Mass., 321 U.S. 158, 166-67 (1944), discussed below (Schenker v. County of Tuscarawas [pdf]; also see a previous discussion of that decision).
There is one exception. In Diana H. v. Rubin, 217 Ariz. 131, 171 P.3d 200 (2007), in a two to one decision, the Arizona Court of Appeals rejected a state department request to immunize a child removed from her home, finding, among other things, that there is no “imminent” risk to the child (due to high levels of immunization, vaccine-preventable diseases are rare in the United States these days, so they are less visible).
The court also concluded that the legislature by passing the exemption law preferred a parent’s religious objection over the state’s interest in preventing the risks of vaccine preventable diseases. But the court did not find an unlimited constitutional right of the parent to make legal decisions for the child, nor does it conclude that vaccine preventable diseases are not risky (it cites several risks): it only deferred to the legislature’s balancing of those risks with religious rights, giving weight to the existence of a religious exemption. I think the majority was wrong to say that, as well – the legislature’s religious exemption did not clearly apply to parents who lost custody, and for the reasons below, I think it should not extend to them.
The dissent’s argument on this point- highlighting the risks to a child already mistreated by her parents from allowing the parent to continue making medical decisions leaving that child at risk – was, in my view, extremely persuasive.
What is really going on?
There is a reason the majority of states permit the state to immunize children in its care even over parental objection, and that in the one exception, a strong dissent went the other way.
Parental rights over some aspects of their children’s upbringing are constitutionally protected via the right to liberty embodied in the Due Process clause (Troxel v. Granville, 530 U.S. 57, 65 (2000)). However, those rights have limits, and when parental rights endanger a child’s welfare or health, the state may limit them. In the context of vaccination, the most famous is the well-known statement in Prince v. Massachusetts that a parent “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.” (Prince v. Mass., 321 U.S. 158, 166-67 (1944)).
The scientific consensus is that the benefits of vaccines far outweigh their small risks, and that the risks of non-vaccinating are higher than the risks of vaccinating for all but the few children with specific medical contraindication. As the Prince court noted, for most children, not vaccinating them is leaving them at risk, and a state has the right to step in and protect those children. By undermining herd immunity, not vaccinating also puts others at risk, and again, a state may regulate to protect those others.
States are careful with parental rights. While all states have school immunization requirements, and most states offer non-medical exemptions, no state has an absolute mandate for immunizations: in each state there is currently an out for parents. Either the immunization requirements do not apply to homeschooling or, where they do, there is an exemption available.
But this is not the usual context. In cases like these, children were removed from their parents’ care because their parents were not properly providing for them in multiple ways. Parental rights have already had to give way for the child’s benefit. The state is responsible for the children’s welfare once they are in its care. They are going to be in close contact with others – whether in a foster family or in another environment. When the state is responsible for children’s welfare and for the welfare of those they come in contact with, choosing the safer option – vaccinating the children – is appropriate. The state should act to protect the children’s health by providing them with the best protection modern medicine offers against certain diseases: vaccines.
This logic was at the basis of the court’s analysis in Schenker v. County of Tuscarawas (pdf). The court there concluded, citing Prince: “The decision to require Plaintiff’s children to be vaccinated while they were in foster care, did not violate Plaintiff’s constitutional rights.” Sometimes, parental rights need to give way before the rights of the child and the rights of the community.
Allowing parents whose actions already undermined the children’s welfare to continue undermining that welfare by making the risky choice not to vaccinate once those children have been put in the state’s custody is problematic.
Oregon’s Supreme Court made the choice that best protects the children in the state’s custody, and those they come across.