This article is by Dorit Rubinstein Reiss, Professor of Law at the University of California Hastings College of the Law (San Francisco, CA), is a frequent contributor to this and many other blogs, providing in-depth, and intellectually stimulating, articles about vaccines, medical issues, social policy and the law.
Professor Reiss writes extensively in law journals about the social and legal policies of vaccination. Additionally, Reiss is also member of the Parent Advisory Board of Voices for Vaccines, a parent-led organization that supports and advocates for on-time vaccination and the reduction of vaccine-preventable disease.
On October 5, 2015 the Supreme Court of the United States denied cert in Phillips v. New York, a group of three cases that considered issues surrounding vaccines and religious exemptions. This post shortly explains the case and what denying cert means (and does not mean).
Phillips v. New York
Phillips v. New York combines three cases. In two of those – those of Phillips and Mendoza-Vaca – the Catholic parents were granted a religious exemption from New York’s vaccination requirements but their children were excluded from school when another student was diagnosed with chicken pox. New York’s statute – like most state statutes – allowed officials to exclude exempt children during an outbreak of vaccine preventable diseases.
The third case was different. Dina Check was denied an exemption on religious grounds for her daughter Mary after multiple lower decisions found that her main reasons for seeking exemptions are health-related, not religious: she was worried that vaccines would harm her daughter.
In the name of these parents together Attorney Patricia Finn claimed that the statutory vaccination requirement and the regulation permitting temporary exclusion of exempt children during outbreak were unconstitutional. Phillips, Mendoza-Vaca and Check were all appealing lower courts decisions denying their claims, which makes them “appellants”. The 2nd Circuit Court of Appeals rejected all the appellants’ constitutional claims.
Substantive Due Process
Appellants claimed that the requirements violate their substantive due process rights. The due process clause of the Fourteenth Amendment protects people against infringement of “life, liberty and property without due process of law.” It can have a procedural meaning: states cannot take your liberty unless they follow appropriate fair procedures to do so.
It can also have a substantive meaning: states cannot restrict some fundamental liberty interests at all without a compelling enough reason. The appellants claimed the vaccination requirement violated their liberty interest without a sufficiently compelling reason. The 2nd circuit found that that the Supreme Court’s decision in Jacobson v. Commonwealth of Massachusetts, 197 U.S. 11 (1905) governed this issue and prevented the court from finding New York’s law unconstitutional. Appellants claimed that “vaccines cause more harm to society than good”, but the court held “that is a determination for the legislature, not the individual objectors.”
In other words, courts must defer to reasonable legislative decisions in relation to immunization requirements and exemptions.
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Freedom of Religion
Appellants claimed that excluding children from school during outbreaks violates the First Amendment by unconstitutionally burdening their free exercise of religion. The court pointed out that Prince v. Massachusetts, 321 U.S. 158 (1944) had “persuasive dictum” – a statement that is not part of the ruling, but is nonetheless powerful and persuasive – supporting the idea that states are not required to provide religious exemptions from forced vaccination, because
[infobox icon=”quote-left”]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. (166‐67)[/infobox]
The court also reminded us that the Supreme Court’s jurisprudence does not require religious exemptions from neutral laws of general applicability even if they incidentally burden religious practice – and vaccination requirements are such laws.
Because New York did not have to offer a religious exemption at all, it can offer religious exemptions with conditions – in this case, the condition that exempt children will be excluded if there’s an outbreak.
The appellants also claimed the law violated equal protection. However, the court found that there’s no real evidence of discrimination – not against Catholics (because Phillips and Mendoza-Vaca, Catholics, were granted exemptions) and not against Check, because the appeal did not challenge the factual findings that the basis for her request for exemption was not religious.
Appellants also made a claim under the Ninth Amendment which says that “The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.”
The court rejected that claim, noting that the Ninth Amendment is not an independent source of individual rights.
Attorney Finn filed a petition for a writ of certiorari in the Supreme Court, asking the Court to review the decision of the Second Circuit.
What the US Supreme Court did and what it means
The Supreme Court of the United States does not have to hear all of the cases it is asked to hear by disappointed litigants from the lower courts. Anyone who wants the Court to review a decision files a “petition for writ of certiorari” with the Supreme Court. If four Justices of the Supreme Court want to hear the case, the Court grants the petition, it “grants cert.” The Supreme Court only hears a small percentage of cases submitted to it; the vast majority of certiorari petitions are denied.
The petition for certiorari was denied in Phillips v. New York.. What does this mean?
It means that the Supreme Court will not decide the case on the merits. The 2nd Circuit Court of Appeals’ decision stands, and it is the final judgment with regard to the parties to that case. It is binding only within the 2nd Circuit, though it can be persuasive in other circuits.
It does not mean that the Supreme Court has reaffirmed Jacobson – it has not decided the case on the merits. It has not clearly said that Jacobson is still good law and how it fits into the rest of its modern jurisdiction.
On the other hand, by denying cert the Court rejected a chance to reconsider Jacobson, and currently, it stands as the law of the land. Perhaps cert was denied in this case because there are not four justices on the Supreme Court who think Jacobson is such bad law that it should be overturned. Certiorari is denied for many other reasons, though, too – perhaps the Supreme Court decided that the facts of the Phillips were not sufficiently developed, or that more time was needed to see how other Circuit courts dealt with the issue, or that the case was not important enough to warrant use of the Court resources.
Acknowledgements: I am grateful to David Jung, Rob Schwartz and Lois Weithorn for their very helpful comments to previous drafts. All errors are, of course, my own.