In 2014, the Federal District Court of the Eastern District of New York rejected a claim brought by three plaintiff families against various aspects of New York’s school immunization requirements. The decision did not include any legal innovation: it was completely based on well-established precedent that schools can deny religious exemptions. But it offers a chance to reflect on what that precedent is, why it is in place, and what it means for us.
The take-home point? Our immunization jurisprudence gives states substantial leeway to protect the public health via vaccination requirements, specifically, in this context, by allowing states to decide whether, and under what conditions, to exempt students from school immunization requirements. But states have to actually use that power to achieve anything. By leaving the floor to the passionate, if passionately wrong, anti-vaccine minority, we are allowing them to undermine the right of the rest of us to be free from preventable diseases.
In other words, those who vaccinate need to speak up and make it clear to their elected representatives that they want state law to protect their children – and the community – against outbreaks of preventable diseases. The laws will not enact themselves, and our representatives need to know the public wants this protection, that the public does not want high rates of measles cases or other diseases.
Just like the diseases, anti-vaccine legislative successes, such as maintaining religious exemptions, are preventable. And just like the diseases, doing nothing won’t prevent them.
Phillips v. City of New York
On June 4, 2014, Judge William F. Kuntz, II granted a motion to dismiss in the case of Phillips v. City of New York. The case actually included three cases, of different types. Two of the cases included children who were unvaccinated since their parents were granted religious exemptions.
Their parents were challenging the fact that these unvaccinated children were required, under the statute, to stay home when cases of vaccine-preventable diseases arose. The third case, brought by Dina Check on behalf of her daughter, Mary, challenged the denial of religious exemptions to Dina. A lower court found that Check’s reasons for not vaccinating were not, in fact, religious. Dina Check’s explanation of the religious aspects of her decision was:
I am requesting this religious exemption because it is my strong belief that all vaccines are made with toxic chemicals that are injected into the bloodstream by vaccination. According to the FDA, all vaccines are made with foreign proteins (viruses & bacteria’s), and some vaccines are even made with genetically engineered viral and bacterial materials…. I believe that man is made in God’s image and the injection of toxic chemicals and foreign proteins into the bloodstream is a violation of God’s directive to keep the body, (which is to be treated as a temple), holy and free from impurities…. (Check ex rel. MC v. New York City Dept. of Educ. E.D. N.Y., 2013. Slip Copy, 2013 WL 2181045.)(This case was originally discussed in a prior article.)
Unsurprisingly, the court did not find this explanation to be particularly grounded in religious reasons.
That, however, was not the basis of the court’s decision. All three plaintiffs were attacking the exclusion of their children from school for lack of vaccination. Their main claims were:
- Excluding children not vaccinated for religious reasons violates the First Amendment.
- Excluding unvaccinated children violates their or their parents’ substantive due process rights as protected by the Fourteenth Amendment.
- Excluding unvaccinated children violates their right to equal protection, also protected by the Fourteenth Amendment.
As to the First Amendment claim, the court pointed out that the case of Jacobson v. Massachusetts, 197 U.S. 11, 35-39 (1905) “strongly suggested that religious objectors are not constitutionally exempt from vaccination”, and that New York courts have followed that lead. Indeed: no court in the United States – state or federal – has ever found that a religious exemption is required.
A substantive due process claim is a claim that in some circumstances, a state simply cannot take away the right to – in this case – liberty, because the liberty in question is too fundamental. Substantive due process has fallen into some disrepute since the New Deal and is now used only rarely and for cases that are not related here. The court here found that Jacobson defeats such a claim, saying that “New York’s vaccine program is well within the state’s police power and thus its constitutionality is too well established to require discussion.”
The court also found that there is no evidence of discrimination since there is no evidence of preferring one religion over another or that the plaintiffs are of a protected class. Not every case of treating people differently is discrimination: it’s only discrimination if the difference is of a kind that cannot legitimately be taken into account.
The court found no such difference here: unvaccinated children really are different from vaccinated ones in a relevant way – they are more at risk of contracting and spreading a preventable illness. Being unvaccinated is not a protected category.
So, relying on well-established principles, the court dismissed the case. The plaintiff’s lawyer did announce her intention to appeal, but given the compelling logic behind Jacobson and its progeny, her chances of success are slim.
Why does our jurisprudence say about religious exemptions?
As Phillips v. City of New York – again – makes clear, the courts give state legislatures quite a bit of leeway to determine whether they wish to allow exemptions from school immunization requirements, and under what conditions. Why? It’s not because our courts don’t care about religious freedoms or parental rights. They do. It’s because there are other interests in the balance here, and the courts are saying, clearly and loudly, that the state has the power to balance those interests. Three sets of interests meet here:
The Supreme Court said it best, in a paragraph in a case that dealt with a related but different issue – the question of whether child labor laws trump over parental rights and religious freedom. In Prince v. Massachusetts, the Supreme Court explained 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 a communicable disease or the latter to ill health or death.
Children have a right to be free from preventable diseases; other members of the community also have the right to be free of those diseases. And the state may step in and limit parental rights to protect those two competing interests. Parental rights and religious freedoms are not absolute.
What does this mean?
Here is the rub. Our jurisprudence is enabling. Not mandating. That means states can choose to protect children’s and the public’s right to health against the misguided choices of those that fall for anti-vaccine misinformation – but they don’t have to.
The anti-vaccine activists are a dedicated minority. Some of them sincerely – if often against the evidence – believe their children were harmed by vaccines. Some of them are dedicated for other reasons. They are very, very passionate, and when the cry to arms is raised, they come. Their information is faulty, if not downright wrong, but their dedication is real and their volume is high.
While most of the population is vaccinated, they have not yet spoken up or made steps to protect public health. That’s not surprising: we don’t have an active pro-seatbelt movement, because most people realize that opposing seatbelts is self-destructive. Similarly, most people realize that not vaccinating is self-destructive and simply wrong. It is so self-evident that many people do not see a need to actively advocate for it.
But if we do not speak up, we will be leaving the political arena to the anti-vaccine activists. The hard-working, dedicated pro-immunization grass-roots need the rest of the public to get more involved and speak up for their right to health. To say, clearly, that people’s right to misunderstand science and make bad choices does not extend to a right to endanger the public or their own children.
Our courts give states the power to protect our right to health. But these decisions are made in the political arena. If we do not all join the effort, that power will not be used.
Like vaccines, the power to legislate for public health will not protect us unless we use it.
So people, WAKE UP!
This article was originally published in June 2014. It has been updated to fix some formatting and broken links. Also, many anti-vaccine zealots are utilizing “religious liberty” arguments prevent the elimination of religious exemptions.