Custody, parental rights and vaccines in Maine

This article examines a recent Maine Supreme Judicial Court ruling on parental rights and vaccines – they upheld a decision to vaccinate a child in the custody of the state over a mother’s objections. This post explains the decision, explains why the lone dissenting judge was wrong, and reminds the reader that this decision is consistent with the majority of states deciding the issue – for good reasons.

The decision

On August 11, 2015 the Supreme Judicial Court of Maine affirmed an order of the district court finding the child, S.Z., to be “in circumstances of jeopardy,” since the mother kept returning with the child to the abusive father. The court also ordered a full medical evaluation for the child and approved immunizations found essential by the pediatrician. This was because the court found the mother to have denied the child medical care. The decision explained:

…the court found that the mother refused all efforts to vaccinate the child based on her refusal to accept scientific facts, referencing her statement, “I do not believe in viruses.” The court also found that the mother denied the child antibiotics because she believes that “the mind can cure all.”

Finally, the court found that the mother failed to obtain medical treatment for her child’s hernia, noting her report that, when it bulges, she simply pushes it back. As a result of these findings, the court concluded that the child had been deprived of necessary health care.

Maine’s Supreme Judicial Court, in a four to one decision, affirmed the lower court’s order in all its parts. In relation to ordering vaccines, the court found that once a finding of jeopardy was made the lower court’s additional specific instructions cannot be separately appealed or overturned. The court also pointed out that the person having custody of the child has the right to make ordinary medical decisions for the child. Since the state now has custody, it can order vaccination.

The dissent

The dissenting judge objected because in his view, vaccination does not fall into the type of medical decisions the state may make for the child. The dissenting judge is no doubt correct that vaccination, absent unusual circumstances, does not constitute emergency medical treatment. Usually vaccines are given to a healthy child to prevent getting to an emergency. But the dissenting judge is wrong to claim that vaccines do not fall into the other category, “ordinary medical decisions,” a custodian is allowed to make.

The main basis for the dissenting judge’s conclusion is the existence of an exemption to school immunization requirements, claiming that shows the legislature treated vaccines differently than other medical decisions and allowed parents to decline them.

But school immunization requirements do not directly speak to a parent’s right to decide whether to vaccinate the child or not. To start with, parents can decline vaccines – just like other treatment – absent a court order, without need for an exemption.

There may be consequences to the decision, but the parent has to agree to treatment for it to be given. School immunization requirements do not remove the requirement of consent. They certainly do not mandate a decision when the child, like here, is too young for school–the child was one year old at the time of the decision. Indeed, the majority explained, in footnote 2, that “This child is only a year old, and no issues regarding school enrollment were raised during the jeopardy hearing. [The clause creating the exemption] has no applicability here.”

A parent has rights to make medical decisions for their child unless the state intervenes – something that is usually done in extreme circumstances. In that, vaccination is no different from other decisions. The existence of school immunization requirements does not remove that right, nor does the existence of exemptions make it any broader than it is in other contexts. If the state can give the child fever reducer when he has a fever, something the parent – absent a court order – has the right to do or not do, it can vaccinate, something the parent – absent a court order – has the right to do or not do.

Second, school immunization requirements focus on public health and the ease of exemption addresses the level of risk of preventable disease the state is willing to allow in its school. It’s not focused on the best interest of the specific child.

The other basis the judge relied on is that vaccination cannot be undone, reflecting the problematic anti-vaccine slogan that “you can always vaccinate but you can never unvaccinated. In response to which informed observers point out that you cannot undiphtheria, unmeasles or unpolio, either.

I am not claiming the judge is anti-vaccine; I have no knowledge on that one way or the other. But the argument he seems to accept comes from those sources).  But again, that is true of many medical decisions: you cannot undo giving the child a fever reducer, a course of antibiotics, or ordering minor important surgery. And many ordinary medical decisions will have a long term impact on the child – and it’s still important that the custodian have the authority to order them.

Parental rights and vaccines – summary

Vaccines protect the child and protect others. When the state has custody of the child, it’s responsible for his well-being, and protecting him from dangerous diseases is part of that responsibility. In ordering vaccines, the court was following the medical and scientific consensus and acting for the child’s welfare.

If the child is in the custody of the state, he also has to be placed somewhere, and there will be other people in the place the child will reside in. Those people may include people vulnerable to infectious disease, including the extremely vulnerable – babies too young to vaccinate, the immune compromised, and so forth. Leaving the child unprotected not only leaves the child at much higher risk of preventable disease – it can risk others.

Vaccinating the child is the responsible thing to do for that child and for others. This is why the court ordered it. A parent found not to look after the child’s interests, not to be willing to protect the child, should not have a right to deprive the child of the protection vaccines provide.

Maine joins other jurisdiction in acting to protect children in the custody of the state from preventable disease by vaccinating them. It is the right thing to do.

Editor’s note – This article was first published in August 2015. It has been updated to fix broken links and formatting issues.

Please comment below, positive or negative. Of course, if you find spelling errors, tell me! And share this article.

There are two ways you can help me out to keep this website awesome. First, you can make a monthly contribution through Patreon:

Become a Patron!

Buy ANYTHING from Amazon.

Best Medical Blogs Worth Following -

Don’t miss each new article!

We don’t spam! Read our privacy policy for more info.

Dorit Rubinstein Reiss
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.