Suit Seeks To Impose Vaccination Exemption On Religious School

VIN News reports on a suit filed last month in a New York state trial court by parents who are seeking to require a Jewish day school to grant their 4-year old son a religious exemption from immunization requirements.  Yeshiva Oholei Torah requires children to be immunized in order to attend, and the school does not recognize exemption requests. The suit apparently contends that the religious exemption provision in New York's Public Health Law Sec. 2164(9) is mandatory for schools. The section provides that the mandatory vaccination requirements of state law "shall not apply to children whose parent, parents, or guardian hold genuine and sincere religious beliefs which are contrary to the practices herein required, and no certificate shall be required as a prerequisite to such children being admitted or received into school or attending school." The trial court denied an emergency injunction in the case last month to the parents who claim their religious freedom is being infringed.. A hearing on a preliminary injunction will be held next week. Some four dozen measles cases have been confirmed among yeshiva students in New York and New Jersey. [Thanks to Avram Schwartz for the lead.]

California Elimination of Personal Belief Exemption From Vaccination Requirements Upheld

In Brown v. Smith, (Cal. App., July 2, 2018), a California appellate court rejected a challenge to a 2015 California legislative change that eliminated the personal beliefs exemption from the requirement that children receive vaccines for certain infectious diseases before being admitted to any public or private school. The court rejected a challenge under the state constitution's free exercise clause, finding that the state has a compelling interest in preventing the spread of communicable diseases. The court also rejected other state constitutional and statutory challenges. (See prior related posting.)

Objections To Child's Vaccination Were Not Genuine Religious Beliefs

In Miller v. Dicherry, (LA App, May 29, 2018), a Louisiana state appellate court rejected objections of a mother, who was the domiciliary parent under a joint custody decree, to having her child vaccinated.  The mother argued that she had a First Amendment right to refuse routine vaccinations for her child on religious grounds.  The court held that the mother's objections did not stem from a genuinely held religious beliefs.  It upheld the trial court's grant of authority to the child's father to make the medical decision that the child be vaccinated.  The court said in part:

[T]he trial court found that Ms. Dicharry's "reluctance to have her child vaccinated arises from a personal, moral, or cultural feeling against vaccination for her minor child." The trial court found that "[ t]hese views and feelings are more in the nature of a secular philosophy than a religious belief." Considering the record, we find no manifest error in the trial court's factual determinations.

Justice Department Sues Over County Nursing Home's Procedure For Obtaining Flu Shot Exemption

The Justice Department announced yesterday that it has filed a religious discrimination suit against a Wisconsin county because of the religious accommodation policy of a county-owned nursing home.  The complaint (full text) in United States v. Ozaukee County, Wisconsin, (ED WI, filed 3/6/2018), challenges the nursing home's requirement that a religious exemption for staff from the requirement to obtain a flu shot is available only if the staff member furnishes a letter from his or her clergy leader.  Nursing assistant Barnell Williams sought a religious exemption, but was not affiliated with any church or organized religion.  She based her religious objection on her own interpretation of the Bible.  She agreed to receive a flu shot in order to preserve her job.  However, according to the complaint:

Williams suffered severe emotional distress from receiving the flu shot in violation of her religious beliefs, including withdrawing from work and her personal life, suffering from sleep problems, anxiety, and fear of “going to Hell” because she had disobeyed the Bible by receiving the shot. These deep emotional problems stemming from having to take the flu shot have plagued Williams to the present. 

EEOC Sues Over Accommodation For Religious Objection To Flu Vaccine

The EEOC announced this week that it has filed a religious discrimination lawsuit against the Owossso, Michigan based Memorial Healthcare.  The company revoked its job offer to Yvonne Bair to work as a medical transcriptionist after she objected on religious grounds to receiving an influenza shot or spray immunization.  Memorial refused her suggested accommodation of allowing her to wear a mask, even though company policy allowed masks as an alternative for those who cannot take a vaccine for other reasons.  MarketWatch reports on the lawsuit.

Repeal of California's Belief Exemption To Vaccination Is Upheld

In Middleton v. Pan, 2018 U.S. Dist. LEXIS 13254 (CD CA, Jan. 25, 2018), a California federal district court adopted a magistrate's recommendations (2017 U.S. Dist. LEXIS 216203, Dec. 18, 2017) and dismissed a suit brought by a large number of parents of unvaccinated or partly vaccinated children objecting to California's Senate Bill 277, which repealed the state's personal belief exemption from immunization requirements for children entering public and private schools. (See prior posting.) The magistrate concluded that "Mandatory vaccination laws are within the scope of a state's police power."

6th Circuit Dismisses Challenge To Michigan Procedures For Vaccination Exemption

In Nikolao v. Lyon, (6th Cir., Nov. 7, 2017), the U.S. 6th Circuit Court of Appeals ordered dismissal of a challenge to Michigan's procedures for granting school children a religious exemption from vaccination requirements. In order to obtain an exemption, a parent is required to visit the local health department and explain the basis for the objection.  A health worker must certify that the parent has received education on the benefits of immunizations and the risks involved in not receiving them.  Also the state has published a series of "Waiver Notes" containing responses to parental objections, including religious objections.  The court held that plaintiff, a mother who asserted her Catholic religious beliefs as the basis for the request, lacked standing to raise a free exercise claim, saying in part:

While Nikolao has presented facts suggesting that she was exposed to religious information with which she did not agree, she has given no indication that the information coerced her into doing or not doing anything. Nikolao went to the WCDH to receive a vaccination exemption and left with one.

The court found that plaintiff did have standing to assert an Establishment Clause claim, but concluded that no Establishment Clause violation was shown, saying in part:

The Certification Rule only requires local health workers to have a conversation with objecting parents.... As part of that conversation, the state may offer its own take on a parent’s objections. But the Certification Rule does not allow state officials to withhold an exemption based on the legitimacy of those objections. Were that the case, the outcome here may very well be different....

Similarly, the Religious Waiver Note does not violate the Establishment Clause. The Note outlines a health department worker’s available responses to religious objections concerning vaccination. To be sure, this document contains information about specific religions.... But, again, the purpose of providing this information is secular.

[Thanks to Tom Rutledge for the lead.]

Suit Challenges Scope of Religious Exemption From Vaccination Requirement

Sunday's Kansas City Star reports on a lawsuit filed recently by the grandparents of a 2-year old objecting on religious grounds to the vaccination of their grandson. While Kansas provides a religious exemption from the vaccination requirement, the complication here is that the toddler is in temporary custody of the Kansas Department for Children and Families, but has been placed in foster care with his grandparents.  This gives the state the right to decide on vaccination, even though the child's grandmother has filed a religious exemption statement with the school.  The suit claims that taking the decision away from the family is a violation of the right to privacy.  It also contends that the Kansas exemption statute is vague and imposes an unconstitutional religious test.  The statute requires a parent or guardian to certify "that the child is an adherent of a religious denomination whose religious teachings are opposed to such tests or inoculations."  Apparently the state requires the parent or guardian to name the specific religious denomination and its specific doctrine.  The grandparents say that it is impossible for a two year old child to be "an adherent of a religious denomination."

Vaccination of Children In Temporary State Custody Over Parental Religious Objection Is Not Authorized

In In re Elianah T.-T., (CT Sup. Ct., Aug. 15, 2017), the Connecticut Supreme Court held that the state's Commissioner of Children and Families is not authorized to require vaccination of children who are in temporary custody of the state where parents object to the vaccination. Here the parents' objection was based on religious beliefs. The statute allowing the Commissioner to authorize medical treatment of children in temporary state custody is not broad enough to include authorizing preventive care. Justice Rogers joined by Justice Eveleigh filed a concurring opinion.  AP reports on the decision.

Court Interprets Vaccination Provision In Custody Decree

In In Re the Paternity of: G.G.B.W., (IN App., July 26, 2017), an Indiana appeals court held that the mother of a minor child should be held in contempt of a custody decree when she refused for religious reasons to have the child vaccinated.  A decree consented to by the mother and father of the child provided:

If the child attends a school that requires vaccinations for enrollment, and the child will be denied enrollment unless she receives the vaccinations, then the child will be given the required vaccinations for enrollment.

The court held that this requires the child be vaccinated upon enrollment in a school that requires its students to be vaccinated, even when a religious exemption from the vaccination requirement was available under Indiana statutes, saying:

If the parties intended the religious objection exemption to apply, they most likely would not have included the vaccination provision in the agreement at all, because a religious objection would always trump a school’s vaccination requirement and the provision would be meaningless.

The father was particularly concerned because of the danger that would be posed to his twin infant children if they were around the older child who was not vaccinated. Indiana Lawyer reports on the decision.

Kansas Court Says No Appeal On Vaccination Order For Children In State Custody

In an unpublished opinion, a Kansas state appeals court appears to have held that a mother who has religious objections to vaccination has no right to appeal a trial court order that her children, who have previously been placed in temporary custody of the state, receive physician-recommended vaccinations.  In In the Interest of M.H.D., K.S.D., and O.H.D., (KA App., July 14, 2017), the court held that while the mother was given a hearing on the issue at the trial court level, the trial court order entered more than 30 days after the children's placement does not fit within the category of orders over which Kansas statutes give the Court of Appeal appellate jurisdiction.

In Unusual Church Autonomy Dispute, Catholic School Can Require Immunization of All Students

In a case with an unusual twist, a Florida state appeals court yesterday upheld the policy of a Catholic school requiring immunization of all students, even when a parent has religious objections to immunization.  In Flynn v. Estevez, (FL App., June 27, 2017), the appeals court held that under the church autonomy doctrine, a civil court cannot require a religious school to comply with the provision in Florida law that allows parents to object on religious grounds to immunization of their children. It said in part:

...[T]he application of the statutory exemption to the Diocese is problematic due to the intramural ecclesiastical kerfuffle that underlies this dispute. The Diocese has a religiously-based immunization policy with which one of its members disagrees; Mr. Flynn seeks the power of the State to compel the Diocese to depart from its point-of-view and admit his non-immunized son. But doing so would further his own religious views at the expense of the Diocese’s on the topic of immunizations. We are convinced that a secular court should not be making the judgment as to which side’s religious view of immunization is to be respected.... Unlike other church autonomy cases, the unique feature of this one is that both parties assert Catholic religious doctrine as the basis for their litigation positions, which cautions against a secular court wading into the squabble.... 

Mr. Flynn claims the Diocese’s vaccination policy must be actually rooted in a specific religion doctrine, tenet, or text, and that its “general concern about the ‘common good’” is a religiously ineffectual basis for invoking the abstention doctrine. Though the trial court wasn’t presented with the specific religious basis for the Diocese’s new policy, we find no fault in its conclusion that “immunizations of children attending Catholic schools is an issue of faith, discipline, and Catholicism [that] can only properly be determined by the church and not by the civil courts.” Courts are in no more of a position to compel the Diocese to provide a sufficient quantum of passable proof that its view of immunization is consistent with the Catholic faith than to do so as to Mr. Flynn’s personal views of Catholic doctrine on the very same subject.

News Service of Florida reports on the decision.

Handling of Vaccination Exemption Request Did Not Violate Religious Rights

In Nikolao v. Lyon, (ED MI, Feb. 23, 2017), a Michigan federal district court dismissed free exercise and establishment clause challenges to the manner in which the Wayne County, Michigan Health Department handled a mother's request for an exemption for her children from the public school vaccination requirement.  Michigan law permits an exemption on the basis of a parent's religious convictions or alternatively on the basis other objections to  immunization. A 2014 Administrative Rule added the requirement that before an exemption will be granted, the parent must receive education  from the local health department on the risks of not receiving vaccinations.  The health department has prepared materials for its employees to use in attempting to persuade parents to allow vaccination, including materials to counter religious objections.

Plaintiff claims that if she wanted a religious waiver, she was required to explain her religious beliefs and discuss them with a health department nurse.  When she refused, she was granted an exemption on the non-religious ground that "mom wants child to have natural immunity."  Plaintiff contended that this deprived her of her religious and moral responsibility to object on account of her religion. Rejecting plaintiff's free exercise claim, the court said:

At most what Plaintiff alleges is that she was exposed to “coercion” to violate her beliefs regarding immunization for her children and “filled with lies about her faith from health department employees.” Plaintiff, however, did not yield to the nurses’ alleged pressure or lies and agree to immunize her children. She left the health department with the required and completed immunization waiver forms.

Court Upholds Vaccination Requirement For Paramedic Clinical Students

In George v. Kankakee Community College, 2016 Ill. App. Unpub. LEXIS 2760 (IL App., Dec.. 20, 2016), an Illinois state court of appeals upheld a hospital's policy requiring community college students enrolled in the clinical portion of the school's paramedic course at the hospital to receive various vaccinations.  Plaintiff Nicholas George asserted religious objections to the vaccines and argued that the religious freedom and equal protection provisions of the Illinois constitution required he be granted an exemption. The court disagreed, holding that the vaccination requirement is a neutral law of general application, and that the Illinois Constitution allows requirements that may restrict religious freedom in order to promote the safety of the citizens of the state. The court also rejected various other state law challenges.

No Religious Exemption To Immunization Requirements For Merely Moral Objections

In Watkins-El v. Department of Education, (ED NY, Oct. 6, 2016), a New York federal district court refused to grant a preliminary injunction, upholding a New York school's denial of a religious exemption from immunization requirements for plaintiff's children. An exemption is available only for "genuine and sincere religious beliefs...." The court said in part:

Although plaintiff asserts that his religion is "Islamism" and that he is a Moor, he does not claim that the tenets of Islamism or Moorish culture prohibit vaccinations.... Instead, Plaintiff bases his opposition on the assertion that these vaccines contain "monkey cells, pork derivatives, and aborted human fetuses," which Plaintiff's religion dictates he cannot consume.... Plaintiff's opposition to these substances may be genuine and sincere, but he has not demonstrated that it stems from a religious, rather than simply moral, belief.... Furthermore, Plaintiff presents no evidence that these vaccines in fact contain the substances to which he objects.

Favoring Religious Over Non-Religious Objections Is Not Religious Discrimination

In Brown v. Our Lady of Lourdes Medical Center, Inc., (NJ App., Oct. 3, 2016), a New Jersey state appellate court held that a community health educator who was fired for refusing to comply with a medical center's compulsory flu vaccination policy could not establish a prima facie case of religious discrimination under New Jersey's Law Against Discrimination.  Plaintiff argued that by permitting exemptions for those with religious objections, but not for those opposed to vaccination for other reasons, her employer had discriminated by favoring religious over non-religious grounds. According to the court:

[Plaintiff]  did not allege that the adverse employment action taken against her was because of her membership in a protected class. Without any allegation that she was a member of a protected class based upon her race, color, religion, sex, or national origin, plaintiff's LAD discrimination claim was futile.

New Jersey Law Journal reports on the decision.

Court Upholds California's Removal of Belief Exemption From Vaccination Requirement

In Whitlow v. State of California, (SD CA, Aug. 26, 2016), a California federal district court refused to grant a preliminary injunction against California's recently enacted SB 277 , a law requiring school students (other than those being home-schooled) to be immunized against ten specific diseases, and removing the state's prior exemption for those whose personal beliefs oppose immunization. The court said:

it is clear that the Constitution does not require the provision of a religious exemption to vaccination requirements, much less a PBE.

San Diego Union Tribune reports on the decision. [Thanks to Scott Mange for the lead.]

Suit Challenges Michigan's Attempt To Dissuade Assertion of Religious Objection To Immunizations

In Michigan yesterday, the mother of four children filed a federal lawsuit challenging Michigan's rules regarding exemption from the state's immunization requirements for school children.  Mich. Comp. Laws § 333.9215 allows parents to obtain an exemption from the requirements by presenting school officials a written statement "to the effect that the requirements ... cannot be met because of religious convictions or other objection to immunization." The state Department of Health and Human Services (HHS) in 2014 adopted a rule (R 325.176(12)) requiring that any request for a non-medical exemption be certified by the local health department after giving the parents warning of the risks of their child not receiving vaccines.

The complaint (full text) in Nikolao v. Lyon, (ED MI, filed 7/7/2016), alleges that HHS has furnished local employees with a "Religious Waiver Note" providing them guidance on how to convince those with religious objections to nevertheless allow their children to be immunized. Plaintiff, a Catholic, contends that the Note contains misrepresentations about Catholic beliefs as to vaccination. She alleges further that when she went to the Wayne County health department to obtain certification of her religious objections, employees insisted that she needed to declare what religion she practices, explain her religious beliefs, and engage in a back and forth discussion with the ... nurse concerning her religious objection...." The complaint goes on:

54. Defendants attempted to use Mrs. Nikolao’s beliefs and adherence to Papal authority to coerce her into vaccinating her children by telling her lies about the Catholic faith and untrue Papal statements.

55. In the end ... Defendants refused to give Mrs. Nikolao a religious exemption, requiring her to mask her religious beliefs in the shroud of an “other” objection.

56. This façade on its own violated Mrs. Nikolao’s religion since, as a Catholic, she has a “grave responsibility . . . to make a conscientious objection with regard to those [vaccines] which have moral problems.”

Plaintiff claims that this violated her free exercise rights under the state and federal constitutions, the Establishment Clause and Michigan statutory law.  The Thomas More Law Center issued a press release announcing the filing of the lawsuit.

Suit Challenges California's Elimination of Religious and Personal Belief Exemptions From Mandatory Immunization

A number of parents as well as several advocacy groups filed a lawsuit in a California federal district court last week challenging the constitutionality of California's SB 277, a law requiring school students (other than those being home-schooled) to be immunized against ten specific diseases, and removing the state's prior personal belief and religious belief exemptions. The law became effective on July 1. (See prior posting.) The complaint (full text) in Whitlow v. State of California, (SD CA, filed 7/1/2016) says that various plaintiffs have a variety of safety and religious objections to immunizations, including concern that some vaccines are manufactured with cell lines that began with aborted fetal cells. The complaint alleges that the new law violates a number of state and federal constitutional protections:

Defendants' conduct infringes on the Plaintiffs' and their children's fundamental rights, including parental rights, right to bodily integrity, right to informed consent and to refuse medical intervention, right to privacy, and/or right to free exercise of religion, by requiring Plaintiffs to choose between those rights and the right to education.

Los Angeles Times reports on the lawsuit.

UPDATE: The court denied a temporary restraining order, finding there were no allegations of immediate harm. Also there were no efforts to serve defendants. Whitlow v. California, 2016 U.S. Dist. LEXIS 86848 (SD CA, July 5, 2015).

"Unfit" Parent Loses Right To Assert Religious Objection To Immunization of Her Children

In In re Deng, (MI App, March 22, 2016), a Michigan state appeals court held that a court can order immunizations for children placed in foster care after the children's parents have been found unfit despite the mother's religious objections to vaccination of her children. The court said in part:

We recognize that, were respondent a fit parent entitled to the control and custody of her children, MCL 333.9215(2) would undoubtedly allow her to forego the immunization of her children otherwise required by the Public Health Code on the grounds of a religious objection. However, this provision is inapplicable on the present facts for the simple reason that the children are not being immunized as a result of provisions in the Public Health Code.... [R]ather, ... the court exercised its broad authority to enter dispositional orders for the welfare of a child under its jurisdiction....

MLive reports on the decision.