Michigan mom jailed – not because of vaccines UPDATE

A mother signed a custody agreement that included her agreement to vaccinate her son. For over a year, the mother did not do so. For this refusal, and after giving her a last chance to comply, a judge had the Michigan mom jailed for seven days. She was jailed for ignoring a court order, not because she refused to vaccinate.

Getting to the point of contempt is likely not particularly common, but it’s not unheard of in family law disputes. So far, none of the facts make this case particularly extraordinary.

What appears to be unusual in this case is that the news coverage accepted the mother’s version and painted her as a principled martyr standing up for the sacred principle of, apparently, going to jail rather than protecting her child from disease. Orac discussed the false balance in the reporting. And that’s not what the case really embodies.

Legal background

Decisions affecting children generally start from the premise that parents have pretty extensive rights over what happens to their children, though those rights are not absolute: the state can intervene, for example, for the child’s welfare by requiring, for example, education or medical care. Absent something unusual, parents determine what happens to the child medically, educationally, and otherwise.

It seems needless to say, but this case suggests otherwise: both parents have parental rights over the child. One parent does not have an absolute say. When parents divorce, deciding the child’s affairs can become contentious.  When parents agree, the state defers to the parent, absent unusual reasons. When parents do not agree, a court has to determine what happens. When handling such disputes, the court considers both the preferences of the parents, with an eye to resolving disputes between them, and the best interests of the child (id).

Most people are likely aware that the relationship between divorced parents is not always amical, and disputes about handling the children’s affairs can become bitter and acrimonious. When that is the case, parents can engage in power struggle, with often less than pleasant results.

The general reality in custody disputes is that when parents disagree on vaccines, usually, though not always, courts side with the vaccinating parent (and here). Not always, though – in  Grzyb v. Grzyb, 79 Va. Cir. 93 (Va.Cir.Ct. 2009) the court sided with the non-vaccinating mother because she was the one making most medical decisions for the child. And in another case in Indiana, a trial court – misled by less than credible anti-vaccine experts – found against the father’s desire to vaccinate, a ruling later overturned by the court of appeals on narrow grounds.

So usually, if there was a dispute, the courts would side with the vaccinating father, but it’s not guaranteed.

The Michigan mom jailed case

As far as I can piece the facts together, what we have are parents who divorced years ago. Their joint son is 9 years old. The mother, Rebecca Bredow, is the primary caretaker, though she and the father, James Horne, share legal custody. Bredow has remarried and has a 6.5 year old daughter. The younger daughter is not vaccinated.

According to the judge, the son was fully vaccinated until a year of age. However, the mother is clearly anti-vaccine now. Her younger daughter is unvaccinated, and she says vaccinating is against her religious beliefs, though she does not explain how.  If this was a debate between the parents on whether to vaccinate, the court might be in a tough position: on the one hand, the mother is the main caretaker, as in Grzyb. On the other hand, vaccinating is safer for the child. But this was not the issue here. In fact, the judge emphasized in court that the court heard no evidence on whether vaccinating is in the best interest of the child, and made no ruling on this.

During November 2016, apparently, the court, at the father’s request, decided to change the custody agreement, among other things requiring full vaccination, on schedule, for the boy. The mother’s lawyer signed a document agreeing, in her name, to vaccinate. It’s unclear whether this was a formal consent decree.

A consent decree means a settlement the parties have worked out, which  the judge signs and enters into the record as an order of the court. That’s why when a consent decree is violated, contempt of court is an option for enforcement. But, in a divorce, the case is more likely to be settled by an agreement which is enforced as a contract, rather than as an order of the court.

If this agreement was not a formal consent decree, contempt proceedings would not be as direct – though the practical difference would be small: in that case, the father would have to try to enforce the parties’ agreement and then the court issued an order which the mother refused to obey. So there would be an additional step. At any rate, an agreement was made.

The mother has not taken action to overturn the agreement. But she also did not vaccinated the boy. In fact, the Judge mentioned in her discussion of the case (see the last three minutes here – the mother filed a waiver from vaccinating without asking the father to agree. It’s unclear whether the relationship was bad for a while or whether things became worse during the past year, but it’s clear the relationship is hostile now. The mother, the judge said, moved the child to another school without talking to the father, changed therapist without talking to the court or the father. She also, again, did not vaccinate.

On September 27, it seems, the court gave Bredow one week to comply with the order to vaccinate, or face potential consequences for contempt of court – up to and including jail time. Bredow did not comply. Instead, she went to the media and told her story, a story picked up by major outlets, in addition to anti-vaccine sites.

In addition to social media activism, local anti-vaccine activists staged a small protest next to the court.

It did not help. The judge sentenced the mom to seven days in jail – less than the sentence requested by the father through his attorney, which was at least three weeks – and ordered that the father be given temporary custody until the mom is released and until the child is vaccinated according to the consent decree, which required that the child be vaccinated, apparently, “as rapidly as medically necessary” (at least, that’s the language the judge used).

The judge criticized the mother very strongly. She stated the mother was saying things that were not true, and called her out for not following orders, even if she agreed to them.

Untruths about the Michigan mom jailed

Several incorrect claims were raised, in relation to the case, by anti-vaccine activists that might be worth directly addressing.

  • This is not a violation of the mother’s constitutional rights. She does not have a constitutional right to make the unilateral medical decision not to vaccinate her child, over the father’s opposition and against a court order. When parents disagree, courts decide. 
  • This is not a violation of the mother’s parental rights. As the judge said, “the child has two parents, and dad gets a say.” Parental rights are not limited to the parent that opposes vaccinating.
  • This is not a violation of the Michigan law providing for a personal belief exemption from school. School immunization requirements are separate from making medical decisions by the parents. The school immunization mandate, by allowing philosophical exemptions, did not take away the father’s right to make the medical decision that his son be vaccinated, and did not give the mother absolute right to deny vaccinating. The exemption means parents can send the child to school unvaccinated. It does not, however, give the non-vaccinating parent the right to make unilateral medical decisions for the child. That was not the law’s purpose.
  • This is not a death sentence on the child, and not an attack on him. Bringing him up to date is very unlikely to harm him, and in fact, reduces his risk – vaccinating him is a much smaller risk than leaving him unvaccinated (and see here) The mother’s concern about multiple vaccines at a time is ill founded (pdf).
  • A statement apparently from Ms. Bredow’s current husband was circulated among anti-vaccine activists.

Michigan mom jailed

According to this statement:

They failed to mention that Rebecca was NOT PRESENT when the first order went in. And the lawyer that gave ‘consent’ on her behalf in a private backroom conversation that Rebecca was not part of. He told her to ‘not worry about the vaccine part, you have waivers.

Maybe the lawyer signed it without Rebecca’s consent. However, that is not very likely – it’s a great way for a lawyer to get into trouble via disciplinary action or a malpractice suit, and there’s no good reason to do it. It’s possible, but troubling, and raises question marks. Further, the statement claimed that the lawyer placated Bredow by telling her not to worry about the vaccine issue – but if she was not informed or did not consent, why would the lawyer need to placate it? More than that, she had ample time since November 2016 to call for a rescinding of the agreement, and she did not. Combining these facts with the fact judge clearly challenged the truthfulness of the claim that she did not consent, and the story seems doubtful.

The husband’s alleged comment further claimed that Bredow did not appeal because they were filing change of custody motions and focused on other things, and “lost sight of it” – but that, too, is a strange statement: if they were already filing motions addressing custody, and the vaccination issue was important, what is so hard about adding a few lines about it?  For almost a year, Bredow did nothing on the issue.

It’s important to remember that this was a mother represented at the time, and that the circumstances – an acrimonious custody dispute – can lead parties to have versions of events that are far apart, and possibly questionable. The judge clearly did not accept the version described above.

This is not an unusual case, and presenting it as an unprecedented attack on vaccine choice is just incorrect. This is a custody dispute where one parent refused to comply with an agreement that may have been a consent decree – in this case, the agreement to vaccinate – and was punished for contempt. In a very real sense, it’s business as usual in the world of custody disputes. It’s also not an assault on the child. He’s ending up protected from disease.

The real question is why it was turned into a media drama.

Update 16 October 2017

Bredow was released from jail early, since the Oakland County Jail, where she was incarcerated, gives inmates a one-day credit after successfully serving five days behind bars, so Bredow was released about midnight on Monday, 9 October 2017. It appears that the father has vaccinated their child, although attorneys for both parties have not confirmed this story.

To add a bizarre and ugly postscript, anti-vaccine activist Del Bigtree, who lacks any credibility on vaccines, found himself on a flight to Los Angeles with Mr. Horne, Ms. Bredow’s ex and the boy’s father. Bigtree apparently spent the flight working himself into an irrational fury against Mr. Horne, and convincing himself he knew all the family realities and is well placed to make judgment about them.

He followed Mr. Horne around the airport shouting abuse based on his personal conclusions about where Mr. Horne’s son was and how he was doing (not, apparently, based on any personal knowledge). Mr. Horne ignored him and continued on its way.

Within anti-vaccine circles this spectacle appeared to contribute to the anger against Mr. Horne for daring to demand that his son be vaccinated and protected from disease. However, I expect people outside the anti-vaccine movement would find the behavior of a man running after a stranger shouting abuse to reflect badly on the harasser, not the victim. If Mr. Bigtree still aspires to be taken seriously by policy makers or people who are not already committed to the anti-vaccine cause, this kind of stunt is probably a bad idea.

Here is the whole disgusting interaction between Bigtree and Mr. Horne:

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.