Each of the 50 states and the District of Columbia require vaccination against certain diseases as a prerequisite to public and private school attendance, most commonly polio, mumps, measles, diphtheria, rubella, chicken pox, Heamophilus influenza type b, pertussis, tetanus, pneumococcal disease and hepatitis B. Unfortunately, mandatory vaccination for home-schooled children is rare. (1)
All states provide medical exemptions to vaccination mandates for those for whom vaccination poses a health threat. Indeed, it is doubtful that a state could constitutionally deny such medical exemptions.
Forty-eight states also allow exemptions based on religious beliefs. While it might be assumed that religious exemptions are required by the protection afforded religion under the First Amendment to the U.S. Constitution that is not the case. The opposite is true. Religious exemptions themselves are constitutionally suspect. In fact, to pass First Amendment muster, a state’s religious exemption statute may have to be so broad as to become, in essence, a “philosophical” exemption.
Vaccination mandates survive early challenges
Compulsory vaccination laws have enjoyed strong support in the state and federal courts for over a century. Early in the 20th century, the U.S. Supreme Court considered the constitutionality of a statute authorizing a municipal board of health to require and enforce vaccination, in this case during a smallpox epidemic. The Court found the legislation represented a valid exercise of the state’s police power. In a statement that proved prescient about the failed constitutional challenges to vaccination mandates which followed, the Court said that “we do not perceive that this legislation has invaded any right secured by the Federal Constitution.” Jacobson v. Massachusetts, 197 U.S. 11, 38 (1905).
In 1922, the Court specifically addressed the subject of school vaccination, holding that it is a valid exercise of the state’s police power to make vaccination a condition of attending public or private school. Zucht v. King, 260 U.S. 174 (1922).
First Amendment challenges to mandates
Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof . . . .” U.S. Const., amend. I.
The First Amendment protects religious freedom in two ways. First, the “Establishment Clause” prohibits excessive involvement of government in religion, such as by establishing a state religion or by granting special privileges to members of a particular religion. Second, under the “Free Exercise Clause,” the freedom to hold religious beliefs and opinions is absolute, although the freedom to act in accordance with those beliefs is subject to regulation by government for the protection of the public.
Although the case did not involve a challenge to compulsory vaccination, the U.S. Supreme Court, in Price v. Massachusetts, 321 U.S. 158 (1944), considered a challenge to a child labor regulations based on the Free Exercise Clause. The plaintiff had her young niece handing out Jehovah’s Witness literature on the streets and the Court upheld the right of the authorities to prevent her from doing so.
The state’s authority to regulate in the interest of the public’s health, safety and welfare (the “police power”), said the Court,
is not nullified merely because the parent grounds his claim to control the child’s course of conduct on religion or conscience. Thus, he cannot claim freedom from compulsory vaccination for the child more than for himself on religious grounds. . . . [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. . . . Parents may be free to become martyrs themselves. But is does not follow [that] they are free . . . to make martyrs of their children before they have reached the age of full and legal discretion when they can make that choice for themselves.” 321 U.S. at 166-167, 170.
While the Court used vaccination as an example in Prince, it has not directly addressed the issue of whether vaccination mandates run afoul of the First Amendment. It again declined to address the issue this year, when it refused to hear a case arising out of a challenge to West Virginia’s mandatory vaccination law.
West Virginia is one of two states which does not have a religious exemption to statutorily-required immunization. Mississippi is the other – its state supreme court struck down a religious exemption as unconstitutional and the state legislature has not enacted another in its place.
West Virginia’s mandatory vaccination law was challenged by a woman whose daughter was refused admission to public school without the required immunizations. The U.S. District Court ruled against her, and the U.S. Court of Appeals for the Fourth Circuit affirmed, finding that the West Virginia vaccination law passed even the “strict scrutiny” test, the most difficult constitutional standard of review. Workman v. Yeager, 419 Fed. Appx. 348 (4th Cir. 2011).
As part of her constitutional argument, Workman proposed that “because West Virginia law requires vaccination against diseases that are not very prevalent, no compelling state interest can exist,” completely ignoring the fact that, were exemptions to be freely granted, diseases that are currently “not very prevalent” could come roaring back. In any event, the court was unimpressed: “on the contrary, the state’s wish to prevent the spread of communicable diseases clearly constitutes a compelling interest.” Id., at 353.
The court gave similarly short shrift to Workman’s free exercise claim:
In sum, following the reasoning of Jacobson and Prince, we conclude that the West Virginia statute requiring vaccinations as a condition of admission to school does not unconstitutionally infringe Workman’s right to free exercise [of her religion]. This conclusion is buttressed by the opinions of numerous federal and state courts that have reached similar conclusions in comparable cases.” Id., at 353-354.
Statutory exemptions
Despite the clear indications from the U.S. Supreme Court, and actual opinions of lower federal courts, that a religious exemption to vaccination mandates was not constitutionally required, the state legislatures began to enact statutory religious exemptions during the latter half of the 20th century. (2) It is these exemptions – not the lack thereof – which got the states into constitutional trouble.
A 2005 survey of religious exemption statutes found that
[a] minority of states limit codified religious exemptions to those who belong to ‘organized,’ ‘recognized’ or ‘established’ religions. Other states allow exemptions if they find that the petitioner’s beliefs are ‘genuine and sincerely held.’ Finally, some states’ requirements for exemption are met simply if a parent or guardian submits a form or an affidavit, stating opposition to vaccination based on religious grounds.” (3)
The first type of exemption has been held unconstitutional in several states. The second is constitutionally suspect. And the third may allow practically anyone to claim an exemption.
An often-cited case is Sherr v. Northport-East Northport Union Free School District, 672 F. Supp. 81 (1987), although as a district court case it has no precedential value. Parents whose children were denied a religious exemption from mandatory vaccination challenged the New York law, which exempted “children whose parent[s] . . . are bona fide members of a recognized religious organization whose teachings are contrary to the practices herein required.”
Here’s how the complaint described the beliefs of one set of parents, the Sherrs:
All persons must live in harmony with the natural world and its order and must not interfere with the natural order. . . . Health is the unhindered expression of life (God) moving through the body, mind and heart. Therefore, anything that hinders life’s expression is contrary to [the Sherrs’s] religious belief. Immunization hinders life (God) and thus is contrary to God. To deviate (immunize) from this natural order would be to sin.” Id., at 92-93.
When I read this, my CAM radar pinged. I wrote in the margin, “sounds like naturopathy & D.D. Palmer,” the latter a reference to the chiropractic founder’s belief in “Innate Intelligence” flowing through the body via the spinal nerves, the interruption of which by “subluxations” causes disease.
Sure enough, that’s exactly where the Sherrs’ “religious” beliefs came from. The affidavit requesting that their son be exempted from immunization due to the family’s religious beliefs stated that they were members of the American Natural Hygiene Society, which is “opposed to inoculations as violating the natural laws of life and health by introducing pathological toxins into a healthy, human body.” According to Quackwatch, the Society is an offshoot of naturopathy.
In addition, according to the court,
Alan Paul Sherr [the father] is a chiropractor, and during the course of his testimony, it became clear that his opposition to vaccinations and attitudes toward sickness and health in all likelihood derive for the most part from his medical and philosophical perspective as a chiropractor and chiropractic ethics . . . .” Id., at 96.
Taken together with other evidence, this meant to the court that the Sherrs “do not sincerely hold the religious beliefs that they put forth” and they weren’t entitled to relief. However, the court did find that New York’s limiting religious exemptions to “bona fide members of a religious organization” violated both the Establishment and Free Exercise clauses of the First Amendment, and that the state “must offer the exemption to all persons who sincerely hold religious beliefs that prohibit the inoculation of their children . . .” Id., at 97.
Likewise, two federal district courts struck down Arkansas’s religious exemption statute, which was limited to parents who object “on the grounds that immunization conflicts with the religious tenets and practices of a recognized church or religious denomination of which the parent . . . is an adherent or member.” McCarthy v. Boozman, 212 F. Supp. 2d 945, 947 (W.D. Ark. 2002), Boone v. Boozman, 217 F.Supp. 2d 938 (E.D. Ark. 2002).
The court in McCarthy quickly dismissed a challenge to the constitutionality of mandatory immunization: “It has long been settled that individual rights must be subordinated to the compelling state interest of protecting society against the spread of disease.” 212 F. Supp. 2d at 947. However, “[i]f the legislature chooses to provide a religious exemption from compulsory immunization . . . the exemption itself must pass constitutional muster.” Because the Arkansas statute limited exemption to “only those who are members or adherents of a church or religious denomination recognized by the State,” the statute “clearly runs afoul” of the First Amendment, as well as the Equal Protection Clause of the Fourteenth Amendment. Id.
“Sincerity” test
Despite the language of Sherr indicating that an examination of the sincerity of religious belief is permissible, this test for religious exemption may itself be constitutionally suspect under the Establishment Clause. According to one commentator:
Under the sincerity test, the party desiring exemption must demonstrate to the satisfaction of the court that his or her asserted beliefs are ‘sincerely’ held. Evidence a court might use in a sincerity analysis includes (1) whether the adherent acted inconsistently with the belief at issue; (2) whether the adherent materially gained by masking secular beliefs with a religious veneer; and (3) the religion’s history and size. Courts must further exercise ‘extreme caution’ when conducting a sincerity analysis because the inquiry ‘in essence puts the individual on trial for heresy.’ The court therefore becomes excessively involved and ‘entangled’ in an analysis of an individual’s religious beliefs when it engages in a sincerity analysis . . . and therefore this form of exemption statute violates the Establishment Clause.” (4)
Everybody’s got religion
Unfortunately, the religious exemption statutes most likely to survive constitutional challenge are the most inclusive – those that automatically allow an exemption without proof that the beliefs are indeed religious in origin or that they are “sincere.” (5)
The problem is exacerbated by the lack of statutory authority in many states to challenge claims based on religious beliefs or the relaxed enforcement of existing rules. (6) As one commentator points out,
Parents wishing to offer additional proof that their opposition to exemption is for religious reasons can seek out the assistance of numerous websites offering relevant Biblical quotations to include in letters of petition for exemption. Also, for a little as $1, parents can join mail-order religious groups, such as the taxpaying Congregation of Universal Wisdom, headquartered in the New Jersey Pine Barrens.” (7)
The ease with which parents can transform anti-vaccination sentiment into a religious belief is demonstrated in Turner v. Liverpool Central School District, in which the court upheld a claim of religious exemption based on membership in the Congregation of Universal Wisdom, a church whose principles were founded on chiropractic philosophy and which held no regular meetings. The court found that “the one consistent aspect of plaintiff’s testimony was that she believed in a universal life force or wisdom and that immunization would be violating that life force.” This was sufficient to meet the state’s statutory religious exemption requirements. (8)
In essence, religious exemptions have the potential to swallow the rule in that they allow transformation of a “philosophical” belief into a “religious” belief by prohibiting inquiry into the origin, nature or sincerity of belief, without the state actually enacting an exemption based on philosophical beliefs.
This subterfuge is unnecessary in the twenty states which have explicit philosophical exemptions. (9) These basically allow anyone to claim an exemption and are more widely used than religious exemptions. In states with both religious and philosophical exemptions, parents claiming the latter far exceed the number claiming the former. (10) This, of course, leads to greater risk of children contracting vaccine-preventable diseases.
Conclusion
There is no constitutional right to exemption from mandatory vaccination laws on religious grounds. Thus, religious exemptions to state vaccination mandates are not constitutionally required. Indeed, they may be constitutionally suspect. If a state’s intention in enacting a religious-based exemption – to accommodate those who sincerely believe their established religious tenets prohibit vaccination – cannot be achieved by constitutional means, then the only way to achieve such accommodation is to open the exemption up to essentially everyone who claims a religious reason, whether sincerely held or fabricated for the occasion. This essentially creates a “philosophical” exemption. The consequences of this meaningless exemption, open to anyone who opposes vaccination, are a threat to public health.
Notes
1. Donya Khalili & Arthur Caplan, Off the Grid: Vaccinations Among Homeschooled Children, 35 J.L. Med. & Ethics 471 (2007).
3. Note, A Bad Reaction: A Look at the Arkansas General Assembly’s Response to McCarthy v. Boozman and Boone v. Boozman, 58 Ark. L. Rev. 251 (2005).
3. Id., at 268-269 (footnotes omitted).
4. Alicia Novak, Comment: The Religious and Philosophical Exemptions to State-Compelled Vaccinations: Constitutional and Other Challenges, 7 U. Pa. J. Const. L. 1101, 1114 (2005) (footnotes omitted).
5. Id., at 1114-1115.
6. Ross D. Silverman, No More Kidding Around: Restructuring Non-Medical Childhood Immunization Exemptions to Ensure Public Health Protection, 12 Ann. Health L. 277, 285.
7. Id.
8. Linda E. LeFever, Comment: Religious Exemptions from School Immunization: A Sincere Belief or Legal Loophole? 110 Penn St. L. Rev. 1047, 1047 (2006).
9. Unpublished Opinion (N.D.N.Y., March 8, 2001) reported in N.Y.L.J., Mar. 20, 2001, at 29, discussed in, Silverman, note 6, at 286-288.
10. Silverman, note 6, at 1116-1117.
