The most recent outbreak of measles in the United States started in the Disneyland theme park in Orange County, California in December of 2014. As the outbreak has now spread to other states, so has the debate on whether or not public schools are legally able to exclude children who have not been vaccinated for measles and other communicable diseases.
The main constitutional arguments brought forward by the parents were that the laws violate their rights to substantive due process, freedom of religion, and equal protection under the laws.
In January, the U.S. Court of Appeals for the Second Circuit issued its decision in Phillips v. City of New York, a case in which parents claimed that New York laws requiring children to be vaccinated before enrolling in public schools, unless they qualified for a medical or religious exemption, was unconstitutional. The parents also challenged the portion of the law that allows public schools to exclude unvaccinated students, even those who qualify for a religious exemption, during outbreaks of diseases that are preventable by vaccination.
The main constitutional arguments brought forward by the parents were that the laws violate their rights to substantive due process, freedom of religion, and equal protection under the laws. However, the Second Circuit rejected all of these arguments, holding that the laws violated none of the plaintiffs’ constitutional rights.
First, the plaintiffs argued that their substantive due process rights were violated by New York’s mandatory vaccination requirement. Traditionally, in order to assert a substantive due process claim, a plaintiff must be able to show that a fundamental right has been violated. Once the plaintiff is able to prove that a fundamental right has been violated, the court must evaluate the law under strict scrutiny, which requires that the law be validated by a compelling governmental interest and be tailored in the least restrictive means possible.
Next, the plaintiffs asserted that their First Amendment right to free exercise of religion had been unconstitutionally burdened by the State requiring their children to be vaccinated.
In their decision, the court noted that a fundamental right has never been associated with public education, causing the plaintiffs’s argument to fail. In relying on a U.S. Supreme Court decision from 1905, Jacobson v. Commonwealth of Massachusetts, the court eluded to the fact that even if the laws were subject to strict scrutiny, they would be unable to overcome the stringent requirements due to the State’s police power in requiring vaccinations and the interest of the population as a whole.
Next, the plaintiffs asserted that their First Amendment right to free exercise of religion had been unconstitutionally burdened by the State requiring their children to be vaccinated. One plaintiff, Dina Check, argued that her right to free exercise of religion had been violated when her daughter was denied the religious exemption to mandatory vaccination because the school found that her objections to vaccinating her daughter were not based on genuine and sincere religious beliefs. When Check took her case before a New York Magistrate Judge, during which Check was unable to identify a single tenant of Catholicism that prohibited vaccinations, the judge also found that Check’s reasons for not vaccinating her daughter were health-related rather than based on religious beliefs.
Other states have made their vaccination requirements even more stringent.
Moreover, the Second Circuit rejected Check and the other plaintiffs’s arguments that the New York laws unduly burdened the free exercise of religion. Here, the court relied on Prince v. Massachusetts, which stated that “[t]he 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.” The court also noted that the New York laws go even further than the Constitution requires by providing an exemption for parents with genuine and sincere religious beliefs against vaccinations.
Lastly, the plaintiffs argued that their rights under the Equal Protection Clause had been violated because the laws discriminate against Catholics. The court quickly rejected this argument, as the two plaintiffs who had successfully asserted their sincere and genuine religious beliefs had qualified for the religious exemption.
As New York has held firm in their right to require vaccinations, other states have been prompted by the recent measles outbreak to make their vaccination requirements even more stringent. On February 4, California lawmakers proposed legislation that would require all children to be vaccinated before attending public schools. Currently, California is one of just nineteen states that allows personal belief exemptions for the vaccination requirement. The proposed law would do away with the personal belief exemption.
One of the most vocal supporters of excluding children who have not been vaccinated from public schools is Carl Krawitt, a California father whose son, Rhett, was diagnosed with leukemia in 2010. Although Rhett is in remission, the years of chemotherapy have left him unable to be vaccinated and his immune system weak.
“As we have learned in the past month, parents who refuse to vaccinate their children not only put their own family at risk, but they also endanger other families who choose to vaccinate.”
Krawitt is especially worried for his son’s health, as they live in a part of the Bay Area with a disproportionately high number of unvaccinated children. Marin County Public Health Officer Dr. Matt Willis estimates that approximately seven percent of the children at Reed Elementary, where Rhett attends school, are unvaccinated. While this is higher than the statewide average, there are some schools in the county where nearly half of the students are unvaccinated.
For now, Rhett has been placed in a classroom for “medically fragile” children, where nineteen of the twenty-two students have been vaccinated. Those who have not been vaccinated also have health issues that preclude them from taking vaccines.
California Senators Barbara Boxer and Dianne Feinstein have also backed California’s attempt to do away with the personal belief exemption. On February 4, Boxer and Feinstein sent a letter to California Health and Human Services Secretary, Diana Dooley, explaining their concerns with the personal belief exemption.
“While a small number of children cannot be vaccinated due to an underlying medical condition, we believe there should be no such things as a philosophical or personal belief exemption, since everyone uses public spaces,” Boxer and Feinstein wrote. “As we have learned in the past month, parents who refuse to vaccinate their children not only put their own family at risk, but they also endanger other families who choose to vaccinate.”
Oregon, like California, is one of the ninetten states that allows a personal belief exemption to vaccination requirements. Lawmakers in Oregon have also recently introduced legislation to eliminate exemptions to public school vaccination requirements. Senator Elizabeth Steiner Hayward, who is also a physician, is currently sponsoring the bill, which would eliminate exemptions for non-medical reasons, including religious and personal beliefs. Currently, Oregon’s personal belief exemption is the most utilized in the country, with nine percent of parents electing to use the exemption to keep their children unvaccinated.
Hayward admits that she expects to see backlash from parents concerning the bill, but so far the bill appears to have bipartisan support.
Steiner Hayward explains that the reason this issue has become so controversial is because a parent electing not to vaccinate their child impacts not only that child, but all children.
“Yes, parents should make decisions about their children’s health care in general, if it only affects their child,” Steiner Hayward said in an interview with a Salem news channel. “But immunizations affects my children, your children, my neighbors’ children, the kids down the street, and kids all across the state.”
Steiner Hayward admits that she expects to see backlash from parents concerning the bill, but so far the bill appears to have bipartisan support.
Dorit Reiss, a law professor at the University of California-Hastings in San Francisco, also said that she anticipates backlash from parents concerning California’s proposal to eliminate the personal belief exemption. Parents who still firmly belief that vaccinations are harmful to their children may try to get around the law, she said.
“They’ll fake vaccination by finding a doctor willing to sign something saying the child is vaccinated when he isn’t,” Reiss said in a statement to NPR.
This could be problematic, according to Reiss, because in the event of an outbreak, schools would not know who should be sent home. Another potential consequence of the bill passing could be an increase in parents electing to homeschool their children, Reiss said.
Several states have introduced legislation that provide for non-medical exemptions.
Currently, two states, West Virginia and Mississippi, allow only medical exemptions to vaccination requirements. Twenty-nine states provide for medical and religious exemptions. Oregon and California, along with seventeen other states, have the least stringent requirements for exemptions, allowing children to go unvaccinated for medical, religious, and personal belief reasons.
Despite how some states have move away from personal belief exemptions, as of February 2015, several states have introduced legislation that provide for non-medical exemptions.
Mississippi and West Virginia, the two states without a religious or personal exemption, are both considering legislation that would make it easier for parents to be exempt from vaccinating their children. The bill that Mississippi is currently considering would allow exemptions for “conscientious beliefs” that would be valid for one year. Parents taking advantage of this exemption would be required to offer an affidavit from the state’s health department acknowledging that the parent understands the risks and benefits of vaccinations. The bill being considered by West Virginia, on the other hand, would offer a religious exemption, provided that parents are able to assert their religious beliefs in an affidavit signed by a licensed physician.
In what is likely not a coincidence, a bill to allow a philosophical exemption to vaccinations in public schools was introduced before the New York Senate less than a week after the Second Circuit’s decision in Phillips v. City of New York. The bill, entitled the “Philosophical Exemption Act,” states that it is grounded on the constitutional principle that there is a right to hold views different from the majority and that society flourishes when those minority views are protected. The bill states that, “it is not the role of the government to sanction one theory of health and disease over any other.”
Under this new bill, parents like Dina Check who fail to meet the requirement of showing a sincerely and genuinely held religious belief would likely find it easier to meet the exemption to vaccinating their children, irrespective of the toll on society as a whole.