Two Cert Denials of Interest As SCOTUS Opens 2015 Term

In the Order List issued yesterday at the beginning of the October 2015 Term, the U.S. Supreme Court denied certiorari in hundreds cases.  Among the cases in which the Court denied review were:

Phillips v. New York (Docket No. 14-1445): In the case, the U.S. 2nd Circuit Court of Appeals he U.S. Second Circuit Court of Appeals upheld New York's requirement that, subject to medical and religious exemptions, all children be vaccinated before attending public school. It also upheld, over free exercise objections, New York's regulation allowing officials to temporarily exclude students who are exempted from the vaccination requirement on religious grounds from school during an outbreak of a vaccine‐preventable disease. (See prior posting.) AP reports on the Court's action.

Sac and Fox Nation of Oklahoma v. Thorpe (Docket No. 14-1419): In the case the U.S. 3rd Circuit Court of Appeals held that despite its literal language, Congress did not intend the Native American Graves Protection and Repatriation Act to apply to protect Native American rights in a dispute between the sons of famous Native American Athlete Jim Thorpe and the Pennsylvania town that renamed itself after Thorpe in an agreement with Thorpe's widow (his third wife) to have his remains buried there.  (See prior posting). New York Daily News has more background and reports on the court's action.

NY Education Commissioner Grants Religious Exemption From MMR Vaccination Requirement

In Appeal of N.C., (NYSED, Aug. 3, 2015), the New York Commissioner of Education granted a religious exemption from the public school immunization requirement to the son of a woman who had developed religious objections after her son had all of his immunizations except his second dose of the MMR vaccine.  The mother is an immigrant and a member of the Russian Orthodox Church. Her religious objections were formed after a conversation with a friend and research "on a few Bible and Christian blogs."  The Commissioner described petitioner's objections as follows:

Petitioner states that “our fate is in the hands of our Lord, even if He decides that we should have a flu or measles.”  She further states that “mortality is, and should be, in God’s hands” and thus “vaccination intercedes upon God’s rightful realm, as if being in God’s care alone is not assurance enough for us.”  In addition, petitioner states that she objects to vaccinations because they “contain cells of animal origin” which is counter to religious teachings that “blood [is] sacred” and should not be mixed “with foreign blood or any other impure matters.”  Petitioner further states that the “final straw” is that “a number of vaccines contain cells from aborted fetuses” and “abortion is clearly considered a mortal sin and is [an] abhorrent act to any Christian.”

Specifically petitioner alleged that "the MMR vaccine, the only vaccine at issue in this case, does contain human diploid cells that use aborted fetal cell lines."

The Commissioner held:

Based on the record before me, I conclude that the weight of the evidence supports petitioner's contentions that her opposition to the MMR vaccine stems from sincerely held religious beliefs.

New York Post last week reported on the decision.

California's Governor Signs New Law Ending Religious and Personal Belief Exemptions To Immunization Requirements

California Governor Jerry Brown yesterday signed SB 277 (full text), a law requiring school students (other than those being home-schooled) to be immunized against ten specific diseases, and removing California's prior personal belief and religious belief exemptions.  Under the new law, only medical exemptions, certified by a licensed physician, are permitted. The personal belief exemption, however, is preserved for any additional diseases that the Department of Health by regulation adds to the ten listed in the statute. In his signing statement (full text), Gov. Brown said in part:

The science is clear that vaccines dramatically protect children against a number of infectious and dangerous diseases.

 Los Angeles Times reports on the governor's action.

Connecticut Legislature Makes Religious Exemption From Vaccination Requirements Marginally More Difficult

On Tuesday, the Connecticut General Assembly gave final passage to HB 6949 (full text) and sent it to the governor for his signature.  The bill places additional procedural requirements on parents seeking to exempt their children on religious grounds from vaccination requirements.  As reported by WNPR:

Currently, [parents or guardians] must simply present a statement that the immunization would be contrary to the child's religious beliefs. But under the bill which cleared the Senate Tuesday, such statements must be submitted annually and officially "acknowledged" by a notary public, attorney, judge, family support magistrate, court clerk, deputy clerk or justice of the peace.

However another bill pending in the legislature would, if enacted, require the notarized statements be submitted only when the child enters kindergarten and when he or she enters 7th grade.

Dad Awarded Right To Make Medical Decisions Because Mom Objects To Vaccinations

In Archer v. Cassel, 2015 Conn. Super. LEXIS 515 (CT Super. Ct., March 10, 2015), a Connecticut trial court awarded the father of two children final authority to make health care decisions for them, largely because the mother has religious objections to their being vaccinated.

California Legislators Urge End To Vaccination Exemptions For Religious and Personal Beliefs

With the number of measles cases in California since December reaching 99, California's two U.S. Senators-- Barbara Boxer and Dianne Feinstein-- yesterday sent a letter (full text) to the state's Health and Human Services Secretary urging that state religious and personal belief exemptions to vaccination requirements be eliminated.  The letter reads in part:

California’s current law allows two options for parents to opt out of vaccine requirements for school and daycare: they must either make this decision with the aid of a health professional, or they can simply check a box claiming that they have religious objections to medical care. We think both options are flawed, and oppose even the notion of a medical professional assisting to waive a vaccine requirement unless there is a medical reason, such as an immune deficiency.

The Wall Street Journal reported yesterday that State Sen. Richard Pan, a pediatrician, plans to introduce legislation to end these exemptions, though he is open to discussion about keeping the religious exemption.

2nd Circuit Upholds New York's Compulsory Vaccination Requirements

In Phillips v. City of New York, (2d Cir., Jan 7, 2015), the U.S. Second Circuit Court of Appeals upheld New York's requirement that, subject to medical and religious exemptions, all children be vaccinated before attending public school. It relied largely on the 1905 U.S. Supreme Court decision in Jacobson v. Massachusetts to dispose of substantive due process objections.  The court also upheld, over free exercise objections, New York's regulation allowing officials to temporarily exclude students who are exempted from the vaccination requirement on religious grounds from school during an outbreak of a vaccine‐preventable disease. Quoting dicta in a 1944 Supreme Court decision, it held that the state could have imposed a vaccination requirement with no exemptions, so the more limited exclusion of those with an exemption during disease outbreaks is likewise constitutional. The court went on to reject equal protection and 9th Amendment arguments as well.  Education Week reports on the decision. New York Times reports that plaintiffs will seek Supreme Court review in the case.

Court Upholds College's Vaccination Requirement Over Free Exercise Challenge

In George v. Kankakee Community College, 2014 U.S. Dist. LEXIS 160737 (CD IL, Nov. 17, 2014), an Illinois federal district court adopted a magistrate's recommendations (2014 U.S. Dist. LEXIS 161379, Oct. 27, 2014) and dismissed a  paramedic student's claim that his free exercise and privacy rights were infringed when he was precluded from taking a clinical class required for his degree. Nicholas George was not permitted to enroll because he refused on religious grounds to comply with the vaccination requirements that were imposed by the hospital conducting the class.  The court held that the hospital's policy was generally applicable  and neutral. The court also remanded to state court plaintiff's state law claims.

Court Rejects Challenge To New York Vaccination Requirements

In Phillips v. City of New York, (ED NY, June 4, 2014), parents who object to vaccinating their children on religious grounds challenged New York's law that allows religious exemptions.  Even though most of the children involved received an exemption, plaintiffs complain that the state requires them to detail their religious beliefs in order to qualify.  Schools also apparently require unvaccinated children to remain home when any classmate contracts a vaccine-preventable disease. The court dismissed plaintiffs' free exercise, substantive due process and equal protection challenges to the law.

Religious Exemption From Vaccination Policy Requires Acceptance of Secular Reasons As Well

In Valent v. Board of Review, Department of Labor, (NJ App., June 5, 2014), the New Jersey Superior Court Appellate Division held that a nurse employed by a hospital was entitled to unemployment compensation after she was fired for refusing to obtain a flu vaccination as required by the hospital's policy.  The hospital policy allowed exemptions for religious or medical reasons, however here the nurse's objections were based on secular non-medical concerns.  The court wrote in part:

By exempting employees who can produce religion-based documentation, the employer's flu vaccination policy is clearly not exclusively driven by health-related concerns. The Board cannot therefore accept the policy as a proper basis to find appellant committed an act of insubordination of sufficient magnitude to render her disqualified for unemployment compensation benefits under N.J.S.A. 43:21-5(b)....

The religion exemption merely discriminates against an employee's right to refuse to be vaccinated based only on purely secular reasons.  Our Supreme Court has clearly cautioned that "[g]overnment may not, under the First Amendment, prefer one religion over another or religion over non-religion but must remain neutral on both scores.".... Under these circumstances, by denying appellant's application to receive unemployment benefits based only on her unwillingness to submit to the employer's religion-based policy, the Board violated appellant's rights under the First Amendment.

AP reports on the decision.