On 7 November 2017, the 6th Circuit Court of Appeals mostly upheld a Federal District’s Court decision (pdf) to grant a motion to dismiss a lawsuit challenging Michigan vaccine regulations that require parents seeking an exemption from school immunization requirements have an interview with health department personnel first. The decision reinforced the strong support our courts have provided states’ efforts to increase vaccines rates.
The Michigan vaccine regulations – the case
In December 2014, Michigan’s Department of Health and Human Services passed an administrative rule requiring parents wishing to exempt their children from school immunization requirement to visit the local health department for a discussion with a local officer who would explain the risks of that choice to the family (Mich. Admin. Code r. 325.176(12)). The Michigan vaccine regulations have been very successful in reducing the rate of exemptions in Michigan and increasing vaccination rates.
In October 2015, Ms. Tara Nikolao, a Catholic, went to the health department to fulfill the requirements and obtain an exemption for her children. She met with two nurses who pressured her to explain her religious objections to vaccines, and provided her a document addressing religious arguments. The document contained some inaccuracies in describing the position of the Catholic church – specifically, it wrongly named the Pope as the source of a statement supporting vaccines, when it was actually made by Monsignor Jacques Suaudeau, a doctor at the Pontifical Academy for Life (pdf).
Ms. Nikolao received her exemption, but brought suit claiming that the requirement to have the interview with the health department, the nurses’ questioning, and noting on the form that her objection was wanting her children to have natural immunity rather than her religious objections, all violated her religious freedoms.
She brought several claims, but the focus of both the District and Appellate courts was on her two First Amendment claims. These were the claim that her rights to free exercise of religion was violated, and also that the rule and practices violated the establishment clause, which forbids excessive entanglement between state and church. After the district court rejected her federal claims, it decided not to exercise jurisdictions over the state claims, and the Court of Appeals agreed with that.
The Michigan vaccine regulations – the ruling
Basically, the Court of Appeals found that Ms. Nikolao lacked standing to bring her first claim – she did not meet the requirements to have her free exercise claims decided on the merits at all. It overturned the lower court’s discussion on the merits, though it upheld the dismissal of that claim. The Court of Appeals found standing on the Establishment Clause claim, but found that it was not well-founded on the merits.
Courts interpret Article III to the constitution to allow suits only when litigants show standing, or a personal stake, in the case. Unlike other systems, our courts are not supposed to hear abstract or theoretical claims. In this case, to show a violation of Ms. Nikolao’s right to free exercise, the court explained, she had to show “the state compel[led] her ‘to do or refrain from doing an act forbidden or required by one’s religion, or to affirm or disavow a belief forbidden or required by one’s religion.’” And the court found she did not. She was not coerced – she asked for an exemption and was given one. So she failed to show standing.
The court pointed out that Ms. Nikolao was not denied any rights based on her religion, either. It reminded us that under our jurisprudence, there is no constitutional right to a religious exemption. Michigan vaccine regulations provide a statutory right – it allows parents to exempt their children from school immunization requirements – and Ms. Nikolao was allowed to exercise that right. She does not, however, have a statutory right to have any specific language used to note her objection.
The court also explained that:
Having to take time off from work to travel to and from the local health office is not a sufficient injury for standing purposes either. This requirement does nothing to burden her practice of religion, nor does it discriminate against religion in any way, as all parents seeking nonmedical exemptions must go through the same process. This includes parents with entirely non-religious objections, such as those concerned about Autism.
In other words, there is nothing specifically religious about the requirement of going to the health department, and it does not affect religious practices.
In terms of establishment clause, the fact that Nikolao was presented with religious information she did not welcome, said the court, is enough to be an injury for the purposes of the establishment clause. The establishment clause aims to prevent extensive entanglement between church and state – to create a separation between the two. To show she was harmed by a violation, all Ms. Nikolao needed to show is unwelcome contact with a government-sponsored religious object, and she did. However, while she met the standing requirement, allowing her to make the argument, she did not show that the Department of Health and Human Services actually violated the Establishment Clause.
Not every reference by the government to religion is a violation of the Establishment Clause. Sometimes government regulation does impact religion. For example, some religious practices – like bigamy – are criminalized. Religious organizations may be treated differently in some context, like employment discrimination rules, or for tax purposes.
So showing the state touched on religion is a necessary, but not sufficient, step to showing the state violated the Establishment Clause. The test used to assess whether a state violated the Establishment Clause is the Lemon test, after the case in which it was first created. As the 6th Circuit Court of Appeals explained here:
To comply with the Establishment Clause, a state law or practice must meet the following conditions: (i) “the statute must have a secular legislative purpose”; (ii) the statute’s “principal or primary effect must be one that neither advances nor inhibits religion”; and (iii) “the statute must not foster an excessive government entanglement with religion.” Lemon v. Kurtzman, 403 U.S. 602, 612-13 (1971)
The court separates out the discussion of Michigan vaccine regulations and the discussion of the notice given to Ms. Nikolao.
In terms of the rule, the court finds it easily meets the test. The courts point out that the purpose of preventing disease is both clearly secular and very important, and that improving vaccine rates addresses that. I’m going to provide a shortened quote of the court’s language, because it is strong and compelling:
The Certification Rule is designed to protect the health and safety of public school children through extensive vaccinations. Where a parent wishes not to vaccinate his or her child, Michigan educates that parent regarding the risks associated with that decision. This is done in an effort to get parents to reconsider and, ultimately, to get more children vaccinated. The endgame is widespread vaccination, which is necessary, indeed essential, to promote adequate immunity.
The importance of extensive vaccination should not be understated—the efficacy of vaccination relies on the theory of “herd immunity.” In essence, once a critical mass of the population is immune to a particular disease, the chance that unvaccinated individuals contract that disease drastically decreases. ….The critical mass needed to achieve herd immunity varies by disease, but is uniformly large. … Thus, to stop the outbreak of preventable diseases in public school, the significant majority of children entering the school system must be vaccinated. It is true that Michigan is trying to discourage parents from opting out of vaccination—but it is only doing so to protect children from serious and avoidable diseases. We are hard-pressed to envision a more secular purpose than this.
In terms of the other requirements, the court points out that the rule does not target any particular religion, and the role of state officials in religion here is very limited – they do not address or interfere with religious institutions, and while they may offer their own take on religion, they may not deny an exemption because of it. The Court says:
Here, the state is merely voicing its own opinion on religious objections in an effort prevent the outbreak of communicable diseases. This does not rise to the level of excessive entanglement needed to sustain an Establishment Clause challenge.
The document with religious information also withstands the test – its purpose is still secular, it’s not aimed at inhibiting religion but providing information that may get the parents to reconsider. The Court says:
The Religious Waiver Note is an educational tool provided to state employees that administer the certifications necessary for a vaccination exemption—it does not require those employees to involve themselves with the activities of any religious organizations. Tellingly, it also does not require state actors to determine which beliefs are sincerely held and does not condition receipt of an exemption on such a finding.
The 6th Circuit, therefore, upholds both Michigan’s rule and the practice.
There was a concurrence in the case – an opinion by a judge that agreed with the result, but not the reasoning. The Concurring Judge strongly implied that he thought Ms. Nikolao may have a claim against the nurses for pushing her on religion, but since they were not the one sued, and there is no evidence the others supported there behavior, there is no case. He did agree there is no case against the constitutionality of the Michigan rule because it says nothing about religion.
In short, the 6th Circuit Court of Appeals upheld Michigan vaccine regulations on religious exemptions as constitutional, providing, as part of its reasoning, a strong endorsement of the state’s efforts to protect its children from preventable diseases, upholding the U.S. courts’ longstanding tradition of supporting such efforts.
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