Use and Abuse of Religious Exemptions from School Immunization

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[1551]

Thou Shalt Not Take the Name of the Lord Thy

God in Vain: Use and Abuse of Religious

Exemptions from School Immunization

Requirements

Dorit Rubinstein Reiss*

School immunization requirements are one way that states protect school age

children against vaccine-preventable diseases. At present, forty-eight states allow

parents to exempt their students from immunization requirements based on religious

reasons, philosophical reasons, or either. This Article focuses on the religious

exemption and makes three points. First, people lie to get a religious exemption.

Second, U.S. jurisprudence makes preventing such abuse very hard. And third,

because the religious exemption is so prone to abuse, we should remove it. The first

part of the Article discusses the jurisprudence, and why our courts limit state

officials’ ability to police abuse of the religious exemption. The Article then uses

three sources to argue that religious exemptions are widely abused: survey data

describing the reasons people do not vaccinate, the positions of established religions

about vaccines, and posts from Facebook stating the poster lied to obtain a religious

exemption. The Article concludes by discussing three potential solutions to the

problem of widespread abuse of the religious exemption: tightening the scrutiny of

requests for religious exemptions, limiting exemptions to medical exemptions only,

and providing only a personal choice exemption. The Article is skeptical about

whether tightening scrutiny is appropriate or constitutional, but sees the latter two

options as offering a different balance of benefits and costs, though the author has a

slight preference for a hard to obtain personal choice exemption.

* Professor of Law, University of California, Hastings College of the Law. I am grateful to

Hadar Aviram, Kate Bloch, Ben Depoorter, Bill Dodge, Craig Egan, Chimene Keitner, David Levine,

Radhika Rao, Reuel Schiller, Jodi Short, David Takacs, Bill Wang, Alice Warning Wasney, Narad

Trabant, and Lois Weithorn for their help with this Article. Many thanks to Jessica Cassella, David

Coolidge, and Rob Taboada for their excellent help in researching this topic.

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Table of Contents

Introduction .............................................................................................. 1552

I. The Law About Exemptions ............................................................... 1558

A. Religious Exemptions: A State Prerogative .................... 1559

B. Equal Protection and Religious Beliefs ......................... 1567

C. Policing Religious Exemptions: A Real Challenge ...... 1568

II. It is Not Usually About Religion .................................................. 1570

A. Reasons for Not Vaccinating: The Literature ............... 1570

B. Major Religions That Support Vaccinations .................. 1573

Judaism

............................................................................... 1574

Islam

................................................................................... 1577

Christianity

......................................................................... 1579

Catholics

....................................................................... 1579

Methodists

.................................................................... 1580

Lutherans

..................................................................... 1580

Church of Jesus Christ of Latter Day Saints

(Mormons)

................................................................... 1581

Episcopalians

............................................................... 1581

Presbyterians

............................................................... 1582

C. Even Sects Opposed to Modern Medicine Do Not

Prohibit Vaccines .................................................................. 1582

Jehovah’s Witnesses

.......................................................... 1583

Christian Scientists

............................................................ 1583

D. People Say That It is Not About Religion ....................... 1584

Real Concern: Safety

........................................................ 1585

People Using a Religion They Do Not Believe in or

Supporting a Fake Religion

............................................. 1586

Clear Lies

........................................................................... 1587

III. What Are the Options? ................................................................... 1588

A. Tightening Religious Exemptions ...................................... 1589

B. Only Provide a Medical Exemption ................................... 1591

C. Personal Belief Exemption Only ....................................... 1594

Conclusion ................................................................................................ 1597

Appendix A: Screenshots of Facebook Comments ............................. 1599

Introduction

In a recent survey of school immunization exemptors

from New

Mexico, fifty-four percent of respondents described their reasons for

. Exemptors are parents who obtain an exemption from school immunization requirements, not

vaccinating their children before sending them to school.

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EXEMPTIONS FROM IMMUNIZATION

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seeking an exemption from school immunization requirements as

“philosophical” or based on “personal beliefs.”

The main reasons for

their objection to vaccines were safety concerns—such as concerns that

vaccines “might cause harm,” “contain dangerous/toxic ingredients,” or

“may overwhelm the immune system”—together with a general belief

that natural immunity is in some way “better.”

The problem is that New Mexico does not have a philosophical

exemption; it only has religious and medical exemptions.

Thus, the

people responding to the survey, all of whom had successfully obtained

exemptions in New Mexico, had to have claimed one or the other of the

two allowable grounds, even though their reason for not vaccinating was

neither medical nor religious.

With over 1.2 billion users

and several dedicated anti-vaccine

pages, Facebook provides a place for anti-vaccine activists—a very, very

small minority—to create a community of like-minded people who can

converse and express their views. Facebook also provides a forum for

individuals to offer advice about obtaining vaccination exemptions. In

response to a request for advice on how to exempt someone from school

immunization requirements, one online commentator said, “She is going

to have to lie. If you give any vaccine even 1 shot [sic] they say it can’t be

religious beliefs. I had to do a bit of Photoshop work to make the records

say they have NEVER had any shots.”

This Article argues that, like this commentator and the New Mexico

exemptors, many of those who claim a religious exemption lie—their real

reasons for not wanting to vaccinate their children are not religious.

Since the religious exemption, in its current format, is so easily and

commonly abused, this is inappropriate.

People lie to the government in many contexts, of course. But when

a statutory exemption is easily and widely abused in ways that undermine

the goals of the statute and may lead to substantial harm, it is probably

time to consider changing the law. All the more so when the states have

substantial leeway to choose their own course.

. Department of Health Announces Results of Vaccine Exemption Survey

, N.M. Dep’t of Health

(Nov. 18, 2013), http://archive.nmhealth.org/CommunicationsOffice/2013%20News%20Releases/NMDOH-

PressRelease-20131118-VaccineExemptionSurvey-EN.pdf.

. Id.

;

see

N.M. Stat. Ann. § 24-5-3 (West 2014).

. Jemima Kiss,

Facebook’s 10th Birthday: From College Dorm to 1.23

Billion Users

, The

Guardian (Feb. 3, 2014), http://www.theguardian.com/technology/2014/feb/04/facebook-10-years-

mark-zuckerberg.

See infra

Appendix A, Figure 1 (capitalized in original). All of the comments located in

Appendix A come from public pages on Facebook. Pursuant to an Institutional Review Board

(“IRB”) exemption, these comments have been included with the names and pictures of the posters

hidden and without citations to the original Website to protect the poster’s anonymity.

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Vaccines save lives. They prevent countless harms and suffering.

There are not a lot of ways around that reality.

Before the pertussis

vaccine was available, the United States had an average of 200,000 cases

and 4000 deaths annually—mostly in babies—from this disease.

Before

the polio vaccine, the United States had an average of almost 20,000

cases of this horrible disease each year, with an average of over 1800

deaths.

Before the development of the Haemophilus influenzae type b

(“HiB”) vaccine, there were about 20,000 cases each year, with about

1000 deaths,

and additional cases of brain damage and other harms.

Today, all of those diseases are extremely rare (even though for

somewhat complex reasons, pertussis—whooping cough—is making a

comeback).

High rates of immunization are an important part of this

reality. Not only are vaccinated people less likely to catch the disease

themselves, but also, if enough people are immunized, the disease cannot

gain a foothold in a population, protecting even those who are not

immune. This phenomenon is called herd immunity, or community

immunity.

One way to achieve these high rates of immunization is

through school immunization requirements: laws requiring children to

receive certain vaccines before attending public school.

Such laws have

withstood challenges on constitutional grounds in the Supreme Court

and in every court addressing the issue since.

With the decline of vaccine-preventable diseases, however, the

balance has changed. The risks of vaccines, real or imagined, have

become more frightening to some than the risks of the diseases that they

. For the development and history of vaccines and their many benefits, see Steve P. Calandrillo,

Vanishing Vaccinations: Why Are So Many Americans Opting Out of Vaccinating Their Children?

37 U. Mich. J.L. Reform 353, 363–81 (2004).

See generally

Paul A. Offit, Vaccinated: One Man’s

Quest to Defeat the World’s Deadliest Diseases (2007) [hereinafter Offit, Vaccinated]

(providing a detaild history of the diseases we vaccinate against, their harms, why and how each

vaccine was created, and how each vaccine led to a dramatic decline in the disease).

. Sandra W. Roush & Trudy V. Murphy,

Historical Comparisons of Morbidity and Mortality

for Vaccine-Preventable Diseases in the United States

, 298 JAMA 2155, 2156 tbl.1 (2007).

. Id.

at 2158 tbl.2.

. Paul A. Offit, Deadly Choices: How the Anti-Vaccine Movement Threatens Us All xii

(2011) [hereinafter Offit, Deadly Choices].

. Ctrs. for Disease Control & Prevention,

Pertussis Epidemic — Washington, 2012

61 Morbidity & Mortality Wkly. Rep. 517, 517–18 (2012). For more on the decline in disease rate and

the life-saving properties of vaccines, see Willem G. van Panhuis et al.,

Contagious Diseases in the

United States from 1888 to the Present

, 369 New Eng. J. Med. 2152, 2154–56 (2013).

. Calandrillo,

supra

note 7, at 420; Douglas S. Diekema, Commentary,

Choices Should Have

Consequences: Failure to Vaccinate, Harm to Others, and Civil Liability

, 107 Mich. L. Rev. First

Impressions 90, 91 (2009).

. Calandrillo,

supra

note 7, at 381 n.199.

See generally

Walter A. Orenstein & Alan R. Hinman,

The Immunization System in the United States — The Role of School Immunization Laws

17 Vaccine s19 (1999) (providing an overview of school immunization requirements and exemptions).

Zucht v. King, 260 U.S. 174, 177 (1922).

. Most recently in Workman v. Mingo Cnty. Bd. of Educ., 419 F. App’x 348, 357 (4th Cir. 2011).

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prevent. Observers explain that vaccines have become “victims of their

own success.”

This is especially ironic because by almost every measure, the risks

of modern vaccines, while real enough, are small. Indeed, the risks of

vaccination are an order of magnitude smaller than the risks of diseases

they prevent.

To give one example, the risk of encephalitis from

measles is one per one thousand cases, according to the Center for

Disease Control’s (“CDC”) “Pink Book.”

Contrast that statistic with

the following Food and Drug Administration (“FDA”) information

about the results of vaccinating with the measles, mumps,

and rubella

(“MMR”) vaccine: “Encephalitis has been reported approximately once

for every 3 million doses of MMR vaccine. Post-marketing surveillance

of more than 400 million doses distributed worldwide (1978 to 2003)

indicates that encephalitis is rarely reported after MMR vaccination.”

To use another measure, it may be useful to compare those statistics

with the number of cases compensated by the National Vaccine Injury

Compensation Program (“NVICP”). The program, which covers both

children and adults, has been in existence for twenty-four years.

Approximately four million babies are born in the United States each

year,

and the majority of them are vaccinated.

And yet, NVICP has

only compensated 3535 cases in twenty years.

This is in spite of the fact

that NVICP is clearly a more plaintiff friendly, easy-to-use scheme than

See

Bruesewitz v. Wyeth, LLC, 131 S. Ct. 1068, 1072 (2011);

see also

Daniel B. Rubin &

Sophie Kasimow, Comment,

The Problem of Vaccination Noncompliance: Public Health Goals and

the Limitations of Tort Law

, 107 Mich. L. Rev. First Impressions 114, 118 (2009).

. For comparisons of the risks of diseases to the risks of vaccines in Australia, see The Australian

Immunisation Handbook, Information Sheet - Comparison of the Effects of Diseases and the Side

Effects of NIP Vaccines 527 (Austl. Gov't Dep't of Health ed., 10th ed. 2014),

available at

http://www.immunise.health.gov.au/internet/immunise/publishing.nsf/Content/EE1905BC65D40BCFCA257

B26007FC8CA/$File/handbook-Jan2014v2.pdf [hereinafter The Australian Immunisation Handbook]. For

Canada, see

Comparison of Effects of Diseases and Vaccines

, Pub. Health Agency of Can. (July 17, 2012),

http://www.phac-aspc.gc.ca/publicat/cig-gci/cedv-cemv-tab-eng.php. For the United States, see

Diseases &

the Vaccines That Prevent Them

, Ctrs. for Disease Control & Prevention (Mar. 12, 2012),

http://www.cdc.gov/vaccines/vpd-vac/fact-sheet-parents.html;

see also

Calandrillo,

supra

note 7, at 391–93.

. Ctrs. for Disease Control & Prevention, Epidemiology and Prevention of Vaccine-

Preventable Diseases 174 (William Atkinson et al. eds., 12th ed. 2012).

The mumps can also cause encephalitis, although in lower rates than measles.

Id.

at 206. For an

example of mumps causing encephalitis, see Dorit Reiss,

The Aftermath of Phil’s Mumps

, Before Vaccines

(Sept. 29, 2013, 5:58 PM), http://beforevaccines.blogspot.com/2013/09/the-aftermath-of-phils-mumps.html.

. Measles, Mumps, Rubella and Varicella Virus Vaccine Live

, U.S. Food & Drug Admin. (Jan. 11,

2010), http://www.fda.gov/BiologicsBloodVaccines/Vaccines/QuestionsaboutVaccines/ucm070425.htm.

Bruesewitz

, 131 S. Ct. at 1074.

. Statistical Abstract of the United States: 2012

, U.S. Census Bureau,

http://www.census.gov/prod/2011pubs/12statab/vitstat.pdf (last visited Aug. 1, 2014).

Ctrs. for Disease Control & Prevention,

National and State Vaccination Coverage Among

Children Aged 19–35 Months

, 60 Morbidity & Mortality Wkly. Rep. 1157, 1158 (2011).

. Health Res. & Servs. Admin., U.S. Dep’t of Health & Human Servs., Statistics Reports

(Mar. 5, 2014), http://www.hrsa.gov/vaccinecompensation/statisticsreports.html#Stats.

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civil courts.

Compare that number to the approximately 35,000

fatalities—not injuries, just deaths—resulting from car accidents each

year.

Indeed, Allison Hagood calculated the rate of vaccine injury to be

less than 0.003% of vaccines given.

Nothing is one hundred percent safe,

and a child can suffer a vaccine injury or an allergic reaction, but as

explained, those are rare and the risks of not vaccinating are much, much

higher.

Over the past decade, rates of nonmedical exemptions from school

immunization requirements have increased dramatically.

This is

problematic because unvaccinated children are at a higher risk of

preventable diseases than vaccinated children,

and communities with

high rates of exemptions are more vulnerable to outbreaks than

communities with high vaccination rates.

State policies—the existence of exemptions and the ease of

obtaining them—affect exemption rates, and hence, the risk of

outbreaks.

This Article examines one type of policy that many states

have adopted: an exemption from school immunization requirements

based on the exemptor’s religious beliefs.

States began adopting religious exemptions to school immunization

requirements in the 1960s.

The first exemptions were adopted to

accommodate Christian Scientists and other similar minorities.

But the

unconstitutionality of offering preferential treatment to certain religions,

and the reluctance of judges to allow state officials to inquire into

See

Bruesewitz

, 131 S. Ct. at 1073;

see also

Christine Vara,

Congressional Briefing Attempts

to Discredit Vaccine Injury Compensation

, Shot of Prevention

(Nov. 8, 2013),

http://shotofprevention.com/2013/11/08/congressional-briefing-attempts-to-discredit-vaccine-injury-

compensation.

Nat’l Safety Council, Injury Facts 2 (2011),

available at

http://www.nsc.org/Documents/Injury_Facts/Injury_Facts_2011_w.pdf.

Allison Hagood,

A Look at the Numbers in Vaccine Reactions

, Red Wine & Apple Sauce (Mar.

5, 2013), http://www.redwineandapplesauce.com/2013/03/05/a-look-at-the-numbers-in-vaccine-reactions/.

. Jennifer L. Richards et al.,

Nonmedical Exemptions to Immunization Requirements in

California: A 16-Year Longitudinal Analysis of Trends and Associated Community Factors

31 Vaccine 3009, 3010 (2013).

. Daniel R. Feikin et al.,

Individual and Community Risks of Measles and Pertussis Associated

with Personal Exemptions to Immunization

, 284 JAMA 3145, 3149 (2000).

. Aamer Imdad et al.,

Religious Exemptions for Immunization and Risk of Pertussis in New

York State, 2000–2011

, 132 Pediatrics 37, 40 (2013); Saad B. Omer et al.,

Geographic Clustering of

Nonmedical Exemptions to School Immunization Requirements and Associations with Geographic

Clustering of Pertussis

, 168 Am. J. Epidemiology 1389, 1389 (2008) [hereinafter Omer et al.,

Geographic Clustering

. Nina R. Blank et al.,

Exempting Schoolchildren from Immunizations: States with Few

Barriers Had Highest Rates of Nonmedical Exemptions

, 32 Health Affairs 1282, 1287 (2013); Omer

et al.,

Geographic Clustering

supra

note 31, at 1389; Stephanie Stadlin et al.,

Medical Exemptions to

School Immunization Requirements in the United States—Association of State Policies with Medical

Exemption Rates (2004–2011)

, 206 J. Infectious Diseases 989, 991 (2012).

See

Offit, Deadly Choices,

supra

note 11, at 140.

. Id.

at 141–45.

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individual religious beliefs led to broader religious exemptions.

The

breadth of current religious exemption laws in many states—and the

limits on the ability of officials to investigate the validity of alleged

religious beliefs opposing immunization—make religious exemptions

especially vulnerable to abuse. While the Supreme Court found that

“religious” can encompass “moral, ethical, or religious beliefs about what

is right and wrong,” that are “held with the strength of traditional

religious convictions,”

even that broad definition is not limitless:

claiming a religious exemption when your reasons for not vaccinating are

(often unfounded) safety concerns would be abusing the exemption.

This Article argues that such abuse does, indeed, occur, and

probably frequently. Even if states value religious freedom, they may not

be willing to allow religious exemptions if the majority of those taking

advantage of them are refusing vaccines for reasons other than religion.

Demonstrating abuse is difficult, since people are naturally hesitant

to openly admit that they are lying (although some people do). Hence,

comparing the rates of those who have sincere religious beliefs that are in

tension with vaccination with those who are using a religious exemption

to mask other reasons is problematic. However, this Article draws on

three types of evidence to support the claim that abuse is probably

widespread. First, this Article examines existing studies and survey data

about the reasons people do not vaccinate, highlighting that reasons

given are generally not religious. Second, this Article demonstrates that

mainstream religions support vaccination, or at least do not oppose or

prohibit it. While our jurisprudence—correctly in my view—does not

require that the exemptor’s religion oppose vaccination, when a given

religion supports vaccination, we may plausibly suspect religious

exemptions claimed by devoted practitioners of that religion to be for

other reasons. Finally, the Article makes use of Facebook comments

from public anti-vaccine pages on which members openly stated that they

lied to obtain religious exemptions.

This Article proceeds in three parts. Part I describes the legal

framework governing religious exemptions. Under U.S. jurisprudence,

courts allow states to provide a religious exemption, but do not require it.

At the same time, if a state does adopt a religious exemption, our

jurisprudence makes it very difficult to prevent abuse. It does so by

adopting positions that are reasonable; courts do not want to allow states

to police beliefs. But the effect is to make it difficult, and in a number of

states completely impossible, to refuse exemptions that officials believe

are suspect. Part II marshals the evidence supporting the claim that many

. See infra

Part I.B–C.

. Welsh v. United States, 398 U.S. 333, 337–40 (1970) (discussing what religious means in the

context of conscientious objectors to the draft).

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people lie when they claim a religious exemption. Part III discusses three

possible solutions, including tightening the requirements for religious

exemptions. This is problematic, however, because tightening

exemptions would require state officials to examine and assess the

sincerity of individual beliefs, acting as conscience police. This Article

favors one of the two other solutions, particularly the final one. A second

solution would be removing all non-medical exemptions. This has the

advantage of protecting the largest number of children. It has a cost,

however: it is a very strong limitation of parental freedom. Additionally,

it may trigger a backlash since people may resent what they would see as

a more coercive policy. Further, it may lead more parents to homeschool,

depriving their children of the benefits of public education. Finally, it

may also encourage parents who are strongly opposed to vaccination to

lie. The third option is a narrow, personal choice exemption that is

difficult to obtain. This would allow those powerfully opposed to

vaccines to exempt their children from vaccination and would still keep

exemption rates low. It still, however, could be open to abuse and

pretense, and it leaves more children vulnerable to preventable diseases,

with their potential risks.

Experience suggests that the final two proposals would be politically

difficult to pass. Both would face substantial vocal resistance from the

anti-vaccine movement, which has substantial experience mobilizing to

fight such laws. On the other hand, increased rates of disease outbreaks

or increased consciousness of the harm caused by non-vaccination could

generate the requisite political will. Furthermore, they are feasible, as

highlighted in a recent study.

I. The Law About Exemptions

Beginning as early as the nineteenth century, states have required

children to be immunized before attending public schools.

In 1922, the

Supreme Court addressed the constitutionality of school immunization

requirements.

Relying on its decision in

Jacobson v. Massachusetts

which upheld mandatory immunization laws as a permissible use of the

states’ power to protect the public health,

the Supreme Court upheld

the constitutionality of the vaccination requirement.

In the 1960s, data

showed that states with school immunization requirements had

substantially lower rates of measles than those without them.

As a

. Saad B. Omer et al.,

Legislative Challenges to School Immunization Mandates, 2009–2012

311 JAMA 620, 621 (2014) [hereinafter Omer et al.,

Legislative Challenges

. Duffield v. Sch. Dist. of Williamsport, 29 A. 742 (Pa. 1894).

. Zucht v. King, 260 U.S. 174, 176 (1922).

. 197 U.S. 11, 25–27 (1905).

See Zucht

, 260 U.S. 174.

. Calandrillo,

supra

note 7, at 382.

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result, in the 1970s, the federal government began providing incentives

for states to enact such requirements.

States did not create religious exemptions until the 1960s, and the

movement began in New York.

Today, forty-eight states offer a

religious exemption, a philosophical exemption, or both, in addition to a

medical exemption.

Most recently, California passed Assembly Bill

2109, aimed at making it more difficult to qualify for the personal belief

exemption. But in a signing statement, Governor Jerry Brown instructed

the California Department of Health to add the religious exemption

from the law’s new requirements to the exemption forms—and such an

exemption has, indeed, been added.

The jurisprudence surrounding exemptions makes three things

clear. First, states do not have to offer religious exemptions, but they

may. Second, if they do offer them, states generally may not discriminate

between religions—including between organized religions and personal

beliefs. Finally, unless the state is very careful in drafting its exemption

law, policing whether an exemptor has sincere religious beliefs can be

tricky. The combination of these three factors makes religious

exemptions a potentially bad deal for states because they can easily be

abused, leading to high rates of exemptions by those whose reasons not

to vaccinate are unrelated to their religious beliefs.

This Article argues

that this is, indeed, what has happened.

A. Religious Exemptions: A State Prerogative

The Supreme Court last discussed the tension between religion and

vaccines in obiter dictum in

Prince v. Massachusetts

After discussing

the application of child labor laws to a religious minority—in that case

Jehovah’s Witnesses—the court discussed the tension between freedom

of religion and general laws affecting child welfare.

Referencing cases

that allowed states to mandate immunization,

the Court found that a

. Id.

at 382–83.

. James Colgrove, State of Immunity: The Politics of Vaccination in Twentieth-Century

America 180–81 (2006).

. Hope Lu, Note,

Giving Families Their Best Shot: A Law–Medicine Perspective on the Right to

Religious Exmptions from Mandatory Vaccination

, 63 Case W. Res. L. Rev. 869, 885–86, 914–15 (2013).

. Illegally, in my view.

See

Dorit Reiss,

Viewpoint: Signing Statement on Vaccines Is Not Law

Recorder (Oct. 9, 2013), http://www.therecorder.com/id=1202622728667?slreturn=20140014230826.

. A state can decide to offer an exemption to people whose reasons are not actually religious, of

course. One can argue that the personal belief exemptions adopted by some states fit into that category.

But most states do not offer a personal belief exemption, and my impression is that for many of the states

that do, the impetus was not to respect safety concerns as much as to respect a broader range of beliefs

beyond what was traditionally considered “religion.”

See

Calandrillo,

supra

note 7, at 415–16

. Prince v. Massachusetts, 321 U.S. 158 (1944).

Id.

at 165.

. For example, the Court relied on Jacobson v. Massachusetts, 197 U.S. 11 (1905), and Zucht v.

King, 260 U.S. 174 (1922).

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parent “cannot claim freedom from compulsory vaccination for the child

more than for himself on religious grounds. The 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 basic tenet in

Prince

was upheld in subsequent cases.

court—state or federal—has ever required a state to create a religious

exemption. Several courts addressing this rejected such a claim. For

example, in

Wright v. DeWitt School District

, the Supreme Court of

Arkansas upheld a state law that contained only a medical exemption,

finding that a state could infringe upon its citizens free exercise right for

the good of the community.

In one recent case,

Workman v. Mingo County Board of Education

the Fourth Circuit relied on

Prince

and

Jacobson

in rejecting a challenge

to West Virginia’s lack of a religious exemption. The court stated:

[T]he state’s wish to prevent the spread of communicable diseases

clearly constitutes a compelling interest. 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.

This conclusion is buttressed by the opinions of numerous federal and

state courts that have reached similar conclusions in comparable

cases.

In fact, in several of the cases striking down religious exemption

statutes, courts left the immunization requirements intact, following

Prince

’s logic, to protect children and the public health.

One court went

even further. The Mississippi Supreme Court stated:

The exception, which would provide for the exemption of children of

parents whose religious beliefs conflict with the immunization

requirements, would discriminate against the great majority of children

whose parents have no such religious convictions. To give it effect

would result in a violation of the Fourteenth Amendment to the

United States Constitution which provides that no state shall make any

law denying to any person within its jurisdiction the equal protection of

the laws, in that it would require the great body of school children to

be vaccinated and at the same time expose them to the hazard of

associating in school with children exempted under the religious

exemption who had not been immunized as required by the statute.

Prince

321 U.S. at 166–67.

See, e.g.

, Brown v. Stone, 378 So. 2d 218, 223 (Miss. 1979); Boone v. Boozman, 217 F. Supp.

2d 938, 946–51, 954 (E.D. Ark. 2002).

. 385 S.W.2d 644, 648 (Ark. 1965). At the time, Arkansas had only a medical exemption but has since

added religious and philosophical exemptions.

See

Ark. Code. Ann. § 6-18-702(d)(4)(A) (West 2014).

. Workman v. Mingo Cnty. Bd. of Educ., 419 F. App’x 348, 353–54 (4th Cir. 2011) (per curiam).

. See, e.g.

, Dalli v. Bd. of Educ., 267 N.E.2d 219, 222–23 (Mass. 1971);

Brown

, 378 So. 2d at 223,

cert. denied

, 449 U.S. 887 (1980).

Brown

, 378 So. 2d at 223.

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The

Brown v. Stone

court viewed the Fourteenth Amendment as

preventing any religious exemption because such an exemption

discriminates against children whose parents do not have religious beliefs

opposed to vaccination. I would go the other way: while vaccinating does

impose some burden—you need to go to the doctor, get the vaccine, and

face the risk of one of the rare side effects—it seems that the

discrimination is more against the children left unprotected against

disease because of their parents’ beliefs. And, it is not exactly

discrimination to force children to associate with the exempt children.

But the idea of reading religious exemptions as a violation of equal

protection is tempting, and has been repeated in several places. For

example, Alicia Novak has made a strong case against religious

exemptions in the name of children’s rights.

This view is also appealing to at least one vaccine expert, Dr. Paul

Offit, who thinks it is a desirable interpretation for policy reasons.

Specifically, Dr. Offit believes that leaving children unprotected against

preventable diseases because their parents hold religious views is

inappropriate.

He seems to interpret this in a straightforward manner:

he believes that leaving children exposed to preventable diseases because

of their parents’ religious beliefs amounts to discrimination.

Using

Brown

to ground a federal rule against exemption, however,

poses a number of problems. First,

Brown

is weak precedent for this

conclusion. No other court has adopted its reasoning, so it stands as

somewhat of an outlier. In addition, the

Brown

reasoning was not well

developed and focuses on the discrimination against vaccinated children

that results from the existence of the exemptions. I think an

interpretation that sees discrimination against the children left exposed

makes more sense, but it is difficult to ground such an interpretation in

Brown

, given the (somewhat unclear) language the court used. To make

the case for interpreting the Constitution to prohibit exemptions, one

would have to make the legal argument better than the court and think

through some difficult questions: What is the justification of seeing this

as discrimination, rather than a real distinction? How does this

interpretation of the Fourteenth Amendment relate to parental rights

and freedom of religion? How does it square with other Supreme Court

decisions?

. Alicia Novak, Note,

The Religious and Philosophical Exemptions to State-Compelled

Vaccination: Constitutional and Other Challenges

, 7 U. Pa. J. Const. L. 1101, 1115–16 (2005).

See

infra

notes 58–69 for a discussion of other constitutional objections.

. Dr. Paul Offit expressed that view in his lectures in a course about vaccines.

See

Paul A. Offit,

‘Vaccine Exemptions’? Call Them What They Really Are

, Medscape (Aug. 10, 2012),

http://www.medscape.com/viewarticle/768746.

Id.

See

infra

Part III.B.

. Offit,

supra

note 58.

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In her article, Novak offers a number of other reasons the religious

exemption might be unconstitutional. Under the Establishment Clause,

she cites the argument that religious exemption statutes improperly

advance religion.

She also cites the

Lemon v. Kurtzman

test,

which

requires that there be a secular purpose for the act, that the main effect

of the act neither advances nor inhibits religion, and that the statute does

not result in extensive entanglement between government and religion.

The

Lemon

test has never been interpreted to bar religious exemptions

completely, but Novak makes a strong argument that exemptions

requiring membership in an organized religion fail the second and third

prongs (

Sherr v. Northport-East Northport Union Free School District

supports this proposition

), and that laws requiring a showing of

sincerity violate the third prong because they require close scrutiny of an

individual’s religious beliefs.

Novak suggests that simple form

submission—signing a form that says that your opposition stems from

your religious beliefs—is most likely to withstand the

Lemon

test.

While only the first type of exemption—the organized religion

exemption—has been struck down so far, Novak has a point about the

second type.

As she suggests, making the form exemption the only

constitutionally permissible form of religious exemption would make the

exemption even more vulnerable to abuse.

The United States values freedom of religion. Some of the early

immigrants were religious minorities. Separation of church and state is

embedded in the First Amendment,

and the United States regularly

scores high on religiosity measures.

Therefore, there is a case to be

made for respecting and protecting freedom of religion, at least to the

extent of allowing states to provide some autonomy to religious

minorities. It is not clear that any other court in the United States will be

willing to go as far as the

Brown

court and actually forbid a state from

having religious exemptions.

. Novak,

supra

note 57, at 1111.

See

Lemon v. Kurtzman,

403 U.S. 602 (1971).

. Id.

at 612–13.

. Sherr v. Northport-East Northport Union Free Sch. Dist., 672 F. Supp. 81, 89 (E.D.N.Y. 1987).

. Novak,

supra

note 57, at 1111–14.

. Id.

at 1114–15.

. For a further discussion of the second option, see

infra

Part III.

. U.S. Const. amend. I (“Congress shall make no law respecting an establishment of religion,

or prohibiting the free exercise thereof . . . .”).

. Pew Research Center, Pew Forum on Religion & Pub. Life, “Nones” on the Rise: One-in-

Five Adults Have No Religious Affiliation 14, 16–17 (2012) (the number of Americans who say

religion is important in their lives is 58%, as compared to Britain at 17%, France at 13%, Germany at 21%,

and Spain at 22%); Kenneth D. Wald & Allison Calhoun-Brown, Religion and Politics in the

United States 11–16 (2007).

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The jurisprudence on the level of protection given to religious

practices in the face of general laws is somewhat confusing. On the one

hand, in 1972, the Supreme Court struck down the convictions of Amish

parents who refused to send their children to school past eighth grade,

emphasizing the importance of parents’ freedom to control the religious

upbringing of their children.

On the other hand, in 1990, the Court

upheld the deprivation of unemployment benefits from Native

Americans using peyote in religious rituals, ruling that it is constitutional

to apply general laws to religious minorities.

Although

Employment

Division v. Smith

did not explicitly overrule

Wisconsin v. Yoder

, the

relationship between the two remains uncertain. Hope Lu interprets

Yoder

as applying to a subcategory of situations in which multiple

constitutional rights intersect, a “religious freedom plus” approach.

would include limited protection of the freedom not to vaccinate in that

category. But that seems problematic; as mentioned,

Yoder

itself carved

out an exemption by saying that states have “undoubted” power to

promote “health, safety, and the general welfare.”

Further, as pointed

out by Shawn Francis Peters,

the Court was careful to craft the opinion

so narrowly that it is difficult to apply it to any facts other than those

matching

Yoder

In another set of cases, the Court struck down congressional

attempts to legislate a general higher standard of review for laws

imposing burdens on religious minorities.

Later, however, the Court

upheld a statute imposing such a standard in relation to limits on the

practice of religious freedom by prisoners.

Burwell v. Hobby Lobby

the Supreme Court recently reaffirmed the application of

Smith

Both

the majority and the dissent agreed that enforcing a generally applicable

law against those with religious objections to that law does not violate

the First Amendment.

The best conclusion is that, at present, the exemption jurisprudence

is enabling, not mandating; it allows states to adopt a religious

exemption, but does not require it. In choosing this approach, the courts

seem to be deferring to the legislature’s balancing of many factors:

freedom of religion, especially that of religious minorities; parental

. Wisconsin v. Yoder, 406 U.S. 205, 234 (1972). In

Yoder

, however, the Court explicitly stated

that the state may regulate health and welfare, even if it means restricting religion.

Id.

at 230.

. Emp’t Div., Dep’t of Human Res. of Oregon v. Smith, 494 U.S. 872, 890 (1990).

. Lu,

supra

note 45 at 882–83.

Yoder

, 406 U.S. at 220.

. Shawn Francis Peters, The Yoder Case: Religious Freedom, Education, and Parental

Rights 153–54 (2003).

City of Boerne v. Flores, 521 U.S. 507, 536 (1997).

Cutter v. Wilkinson, 544 U.S. 709, 714 (2005).

. Nos. 13-354 & 13-356, 2014 WL 292179, at *7 (U.S. June 30, 2014).

Id.

at *32–33 (Ginsburg, J., dissenting).

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power to make medical decisions for their children; the interests of the

child to be free of vaccine-preventable disease (since, despite the

insistence of anti-vaccine activists, it is very, very clear that for every

vaccine provided, the risks of vaccinating are outweighed by the risk of

not vaccinating, by an order of magnitude);

and the interest of the

community in preventing outbreaks.

The tension between religious

values and the risk of outbreaks is especially interesting in this context

because the legislature’s willingness to allow religious exemptions

probably depends, at least in part, on a legislative assessment of whether

this would increase the risk of outbreaks.

The initial New York exemption seems to have been adopted with

Christian Scientists in mind.

I have not examined every state, but the

fact that quite a few states initially limited the exemption to organized

religions opposed to vaccination (an approach rejected by most courts)

suggests that they had small groups of religious minorities in mind and

were not trying to accommodate those driven by fears about the safety of

vaccines. If that was indeed the goal, the jurisprudence surrounding

exemptions, which limits the ability of states to narrowly accommodate

religious minorities, combined with evidence that some people take

advantage of the religious exemptions, may, and probably should, lead

legislatures to reexamine and reconsider whether these exemptions are

appropriate.

As the number of exemptors grows, so does the risk of outbreaks.

Legislatures willing to provide an exemption to small, unique religious

sects, assuming those sects are small enough that herd immunity would

not be compromised if their members were not vaccinated, may have

been less willing to grant that exemption if they knew they would not be

allowed to limit it. Of course, once the exemption is in place, it creates its

own constituency and may be politically more difficult to remove.

But

more difficult to remove is not impossible.

. See

The Australian Immunisation Handbook,

supra

note 18;

Risk from Disease Versus Risk

from Vaccines

, Ctrs. for Disease Control & Prevention (Feb. 18, 2011),

http://www.cdc.gov/vaccines/vac-gen/6mishome.htm#risk [hereinafter CDC,

Risk from Disease

. For a similar discussion of the set of interests involved, see Ross D. Silverman,

No More

Kidding Around: Restructuring Non-Medical Childhood Immunization Exemptions to Ensure Public

Health Protection

, 12 Annals Health L. 277, 278 (2003).

. Colgrove,

supra

note 44, at 12.

See

Omer et al.,

Geographic Clustering

supra

note 31, at 1394–95; Saad B. Omer et al.,

Nonmedical Exemptions to School Immunization Requirements: Secular Trends and Association of

State Policies with Pertussis Incidence

, 296 JAMA 1757, 1758 (2006).

. For a similar problem in other contexts, see Paul Sabatier,

Social Movements and Regulatory

Agencies: Toward a More Adequate—and Less Pessimistic—Theory of “Clientele Capture”

, 6 Pol’y

Scis. 301, 303–05 (1975). Diffuse majorities may not be able to make changes when those changes are

opposed by concentrated minorities that benefit from them.

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For the risk of outbreaks, the basic insight is that the decision not to

vaccinate does not affect the unvaccinated child alone. It is not that the

rights of the unvaccinated child are unimportant; the argument regarding

parental choice is simply stronger in relation to that child than it is in

relation to the rest of the community. A parent has more freedom when

her choices only affect her child than when her choices affect others.

While no vaccine is perfect, most childhood vaccines, with the exception

of the influenza vaccine, provide very high rates of effectiveness, in the

seventy to ninety-nine percent range.

Further, research has consistently

shown that unvaccinated children contract vaccine-preventable diseases

at higher rates than vaccinated children, although not necessarily in

higher absolute numbers.

The unvaccinated child also has a higher risk

of transmitting the disease. The child may transmit the disease to those

unimmunized (because they are too young, because they have medical

conditions that are contraindications to vaccination, or for other

reasons). She may also transmit the disease to the small number of

children suffering from vaccine failure. Measles outbreaks in

unvaccinated communities also demonstrate how non-vaccination can

have impacts beyond the family.

This is not a merely theoretical possibility. In 2008, an unvaccinated

child in San Diego caught measles and infected others, which caused

several children to fall ill and an infant too young to vaccinate to be

hospitalized.

An even more tragic case occurred in Germany.

. Calandrillo,

supra

note 7, at 395, 428; Alexandra M. Stewart, Commentary,

Challenging

Personal Belief Immunization Exemptions: Considering Legal Responses

, 107 Mich. L. Rev. First

Impressions 105, 105 (2009).

CDC,

Risk from Disease

supra

note 79.

. Feikin et al.,

supra

note 30, at 3147; Jason M. Glanz et al.,

Parental Refusal of Pertussis

Vaccination Is Associated with an Increased Risk of Pertussis Infection in Children

, 123 Pediatrics

1446, 1449 (2009); Stephen P. Teret & Jon S. Vernick, Commentary,

Gambling with the Health of

Others

, 107 Mich. L. Rev. First Impressions 110, 110–113 (2009). To illustrate this, imagine a

population of 1000 children, maybe in a school, 950 (or ninety-five percent) of whom are vaccinated

against measles and fifty (or five percent) of whom are not vaccinated. In a measles outbreak, fifty

percent of the unvaccinated children contract measles—twenty-five children. Five percent of the

vaccinated children contract it, or forty-eight children (rounding up). More vaccinated children caught

the disease, but the child would be less likely to contract measles if she were vaccinated than if she

were not. Additionally, the rates would be much higher among the unvaccinated.

. See, e.g.

, Ctrs. for Disease Control & Prevention,

Notes from the Field: Measles Outbreak

Among Members of a Religious Community—Brooklyn, New York,

62 Morbidity & Mortality

Wkly. Rep. 752 (2013); Ctrs. for Disease Control & Prevention,

Notes from the Field: Measles

Outbreak Associated with a Traveler Returning from India—North Carolina, April–May 2013

, 62

Morbidity & Mortality Wkly. Rep. 753. These communities may have sincere religious opposition to

vaccination; they are, however, mentioned as an example of the danger of concentrating unvaccinated

individuals in one area.

. David E. Sugerman et al.,

Measles Outbreak in a Highly Vaccinated Population, San Diego,

2008: Role of the Intentionally Undervaccinated

, 125 Pediatrics 747, 747–48 (2010).

Medical Care for Unvaccinated Children

, Just the Vax (Apr. 23, 2009),

http://justthevax.blogspot.com/2009/04/medical-care-for-unvaccinated-children.html.

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eleven-year-old child left unvaccinated by parental choice was taken to

the pediatrician.

The child had measles and infected six others in the

doctor’s office, including three babies too young to vaccinate.

Two of

the children he infected contracted a rare but horrendous complication

of measles called subacute sclerosing panencephalitis (“SSPE”).

SSPE

usually appears years after the measles victim apparently recovers. It

causes victims to deteriorate slowly, first losing cognitive and motor

ability, and then becoming unable to talk, walk, or eat unassisted before

they eventually slip into a coma and die.

There is no cure, although

treatment may slow down the deterioration and death.

This was the

fate of young Natalie

and Micha,

who contracted it as babies. For

years, their families watched their children’s slow decline, knowing there

was no hope. Then, the children died.

We are lucky that vaccination rates have been reasonably high for a

long time. Most vaccine-preventable diseases—or at least the scariest of

them—are now rare. A ring of vaccinated individuals makes it more

difficult for the diseases to reach the non-immune. Thus, the chances of

an unvaccinated child contracting such a disease, while substantially

higher than those of a vaccinated child, are not dramatically high, and the

chances of transmitting the disease are also low. But that reality is

dependent on continuing the high rates of vaccination; if exemption rates

increase, that may change.

To some degree, that is already happening. The most contagious

diseases come back first. The United States has seen a reemergence of

measles, an unusually contagious disease, after a period in which cases

averaged around sixty per year.

While the number of cases is nowhere

near the four million annual cases during the pre-vaccine era

—222 in

2011,

159 by late August 2013,

100

and 566 cases as of July 2014

101

—the

Id.

. Subacute Sclerosing Panencephalitis

, PubMed Health (Aug. 1, 2012),

http://www.ncbi.nlm.nih.gov/pubmedhealth/PMH0002392.

. Id.

. So Predicable—So Sad, Natalie Dies of SSPE

, Just the Vax (Oct. 20, 2011),

http://justthevax.blogspot.co.uk/2011/10/so-predictable-so-sad-natalie-dies-of.html. The video in the

post shows the suffering Natalie and her family went through with the SSPE (the video is in German).

. Micha is Dead

, Just the Vax (June 13, 2013), http://justthevax.blogspot.co.uk/2013/06/micha-

is-dead.html.

. Ctrs. for Disease Control & Prevention,

Measles—United States, 2011

, 61 Morbidity &

Mortality Wkly. Rep. 253 (2012) [hereinafter CDC,

Measles 2011

. Roush & Murphy,

supra

note 8, at 2156.

CDC,

Measles 2011

supra

note 97.

100

. Measles Outbreaks

, Ctrs. for Disease Control & Prevention,

http://www.cdc.gov/measles/outbreaks.html (last visited Aug. 1, 2014). The numbers were lower for 2012.

Id.

101

Id.

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increase is concerning.

102

And measles is just the most contagious;

nobody wants rates of diphtheria, HiB, or rubella to soar or for polio to

reappear in the United States. But if rates of vaccination drop low

enough, that might happen. The increase in outbreaks may be one reason

that several states are currently reexamining their exemption laws, and

others have tightened them.

103

The balancing of these interests by the states is complicated by the

way the courts have interpreted existing exemption laws and the

constitutional limitations.

B. Equal Protection and Religious Beliefs

Initial exemption laws often created exceptions for those belonging

to an organized religion that prohibited vaccination.

104

This suggests that

the legislatures had Christian Scientists and similar religions in mind,

rather than an exemption that would cover anyone claiming a religious

objection. But from an early stage, plaintiffs requesting exemptions

challenged the limitation to organized religions, claiming that other types

of religious beliefs should also be covered. The first claims were

dismissed when the courts found that the real reason behind plaintiffs’

opposition to vaccination was not religion but safety concerns.

105

But in 1971, the Supreme Judicial Court of Massachusetts addressed

the constitutionality of a statute limiting exemption to “members of ‘a

recognized church or religious denomination’”

106

when the plaintiff’s

opposition to vaccines stemmed from sincere religious beliefs that were

not endorsed by any organized religion. The court found that the only

inquiry it could make was whether the beliefs were sincerely held. “If the

beliefs be sincerely held they are entitled to the same protection as those

more widely held by others.”

107

The court held that:

It is clear that the third paragraph of [the governing statute] extends

preferred treatment to adherents and members “of a recognized

102

. This Article does not address the increase in pertussis cases because, while the unvaccinated

are more at risk of pertussis, that is not the only, or even the main reason we see outbreaks.

See

generally

Glanz et al.,

supra

note 86, at 1447–50. While pockets of exemptions are at higher risks of

outbreaks, the main reason for the increase seems to be a pertussis vaccine that is not as effective as

scientists expected, with reasonable short-term immunity but quickly waning long-term immunity.

Omer et al.,

Geographic Clustering

supra

note 31, at 1390–94; Imdad et al.,

supra

note 31, at 40.

103

. Omer et al.,

Legislative Challenges

supra

note 37, at 620–21.

104

. Colgrove,

supra

note 44, at 182.

105

. See, e.g.

In re

Elwell,

284 N.Y.S.2d 924, 932 (N.Y. Fam. Ct. 1967) (noting the objection was

not because of religion but because of “personal opinions, fears unsupported by any competent

medical proof, and a purported exercise of their own consciences which would not interfere with their

free exercise of the tenets of the Methodist Church”);

see also

McCartney v. Austin, 293 N.Y.S.2d 188,

199 (N.Y. App. Div. 1968) (finding that the plaintiff’s beliefs were actually based on a “personal moral

code or philosophy not based on or by reason of religious training, belief or conviction”).

106

. Dalli v. Bd. of Educ.,

267 N.E.2d 219, 220 (Mass. 1971).

107

. Id.

at 222.

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church or religious denomination” who object to vaccination on

religious grounds. They enjoy the benefit of an exemption which is

denied to other persons whose objections to vaccination are also

grounded in religious belief. This preferred treatment of one group and

discrimination against the other violates the First and Fourteenth

Amendments of the United States Constitution, as well as art. 2 of the

Declaration of Rights of the Massachusetts Constitution. . . . A

majority of the court hold [sic] therefore that the third paragraph of

[the governing statute] is unconstitutional and must be stricken.

108

The court struck down the exemption clause as discriminatory. It

then upheld the immunization requirement as constitutional without an

exemption, requiring that the plaintiff comply and immunize her

daughter if she wanted her to attend school—no doubt to the chagrin of

the plaintiff.

109

Cases in other states mostly followed the same approach:

110

if a state

wanted to offer a religious exemption it could not limit the exemption to

organized religions because that discriminated in favor of certain

religious beliefs and against others. The one exception was Kentucky.

There, a federal district court upheld as constitutional a statute that only

exempted from vaccination “members of a nationally recognized and

established church or religious denomination, the teachings of which are

opposed to medical immunization against disease.”

111

However, shortly

after the decision, the legislature amended the statute to remove that

qualification, establishing a broad religious exemption,

112

and it is

unclear whether the decision would have been upheld once other courts

found otherwise. The current jurisprudence, therefore, requires that if a

state wants to provide a religious exemption, it must provide the

exemption to anyone with a sincere religious belief opposed to

vaccination.

C. Policing Religious Exemptions: A Real Challenge

The choice to allow exemptions for members of organized religions

opposed to vaccination is understandable. While this method does

discriminate against those who are not members but still have a sincere

belief, it is also relatively easy to verify both an established religion’s

position—it will probably be public—and membership. This method is

not foolproof, however; religions have been created for the purpose of

108

. Id.

at 223.

109

. Id.

110

See, e.g.

, Sherr v. Northport-East Northport Union Free Sch. Dist., 672 F. Supp. 81, 87–88

(E.D.N.Y. 1987); Bowden v. Iona Grammar Sch., 726 N.Y.S.2d 685, 686–87 (N.Y. App. Div. 2001);

LePage, 18 P.3d 1177, 1180 (Wyo. 2001).

111

. Kleid v. Bd. of Educ. of Fulton, 406 F. Supp. 902, 904 (W.D. Ky. 1976) (citing and quoting Ky.

Rev. Stat. Ann. § 214.036 as enacted at the time).

112

. Ky. Rev. Stat. Ann. § 214.036 (2014).

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providing exemptions. For example, members of the Congregation of

Universal Wisdom,

113

created by a chiropractor, are “primarily parents

who are seeking exemptions to vaccination requirements.”

114

Part II.D.2

provides additional examples of spurious religions and people joining a

religion simply to claim an exemption. Although requiring membership

in an organized religion could be exploited, it is much easier to confirm

beliefs of such religions than it is to ensure the sincerity of those

requesting an exemption due to personal proclivities.

Courts’ reluctance to police religious beliefs is even more

understandable. There is something immensely troubling about a state

determining which religious beliefs are valid and which are not. The First

Amendment was created to prevent the state from making such

determinations. Freedom of conscience and religion means that the state

may not tell me if my beliefs are legitimate. Bluntly put, it is none of the

state’s business what I believe, and it does not get to tell me that my

beliefs are not worthy.

But the concern about a state judging religious beliefs and

determining which are legitimate is in tension with the ability of a state’s

executive to limit the religious exemption to those truly acting for

religious reasons. It is difficult to draw the line between evaluating the

worth of a belief and evaluating its sincerity, and courts were

understandably careful. That said, if a health department is to limit the

religious exemption to beliefs actually opposed to vaccination, it needs

tools to do so. Current jurisprudence does not offer adequate tools.

Removing the ability to limit the exemption to organized religion is one

example of this tension between religious freedom and enforcement.

As discussed below, most religions either fail to prohibit

vaccinations or explicitly support them. This would, naturally, raise the

suspicion that a member of such a religion who is opposing vaccination

on religious grounds is lying. But several cases rejected this common

sense interpretation

115

due to these courts’ unwillingness to allow state

administrations to determine what is legitimate for a member of a

religion to believe. This is another manifestation of courts’ disinclination

to allow states to determine which beliefs are legitimate. But by taking

this approach, courts are depriving state administrations of another way

to assess sincerity.

For example, in

Berg v. Glen Cove

116

the court upheld an

exemption request by Jewish parents, although most theologians agree

113

Congregation of Universal Wisdom, http://www.cuwisdom.org (last visited Aug. 1, 2014).

114

. Calandrillo,

supra

note 7, at 357.

115

See

infra

notes 116–19.

116

. Berg v. Glen Cove City Sch. Dist., 853 F. Supp. 651 (E.D.N.Y. 1994);

cf.

McCartney v. Austin,

293 N.Y.S.2d 188, 200 (N.Y. App. Div. 1968) (denying exemption to Roman Catholic parents because

the religion did not oppose immunization).

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that Judaism favors immunization. One rabbi submitted an opinion to

the effect that “there is nothing in the teachings of the Jewish religion

that would proscribe immunization for children.”

117

The court accepted

the parents’ own idea of Judaism, and because it saw their claims as

sincere, upheld their request for an exemption.

118

Another New York

court reached a similar result in

Matter of

Shmuel G. v. Rivka G

119

I have not seen any similar cases in other jurisdictions. New York’s

religious exemption is known as one of the most difficult to attain, and

New York is one of the few states that requires a showing of sincere

religious belief.

120

Quite a few other states do not require such a showing.

If a state statute does not require a showing of sincerity, courts have

ruled that administrative agencies may not demand proof of sincerity.

121

Again, this makes enforcing the statute difficult.

In short, in many states, officials face real challenges in limiting the

religious exemption to people whose reasons for not vaccinating are truly

religious. In quite a few states, this is impossible to do if officials may not

inquire into sincerity. The courts’ reluctance to allow government to

police religious beliefs leaves health departments with very limited tools

to police the exemptions and prevent abuse.

II. It is Not Usually About Religion

The problems of enforcing religious exemptions are especially

serious, since there are multiple indications that the majority of parents

who take an exemption do not do so for religious reasons. This Part uses

three types of evidence to support the argument: (1) what we know

about the reasons given by those who do not vaccinate from studies,

buttressed with a small number of examples from cases; (2) what

religions actually say about vaccines; and (3) what some non-vaccinating

parents tell their social networks.

A. Reasons for Not Vaccinating: The Literature

Studies examining why parents do not vaccinate—as well as studies

looking at Internet content on anti-vaccine sites—highlight a number of

safety concerns and mistrust of the government, doctors, pharmaceutical

117

. Berg

, 853 F. Supp. at 655

For a discussion of Judaism and immunization, see

infra

Part II.B.

118

. Berg

, 853 F. Supp. at 655.

119

. 800 N.Y.S.2d 357 (N.Y. Fam. Ct. 2005).

120

. Other such states include North Carolina and Maryland.

See

Alan G. Phillips, The

Authoritative Guide to Vaccine Legal Exemptions 41, 50 (2013).

121

In re

LePage, 18 P.3d 1177, 1180 (Wyo. 2001) (“[T]he statutory language lacks any mention of

an inquiry by the state into the sincerity of religious beliefs. As a result, the Department of Health

exceeded its legislative authority when it conducted a further inquiry into the sincerity of Mrs.

LePage’s religious beliefs.”). For a detailed analysis of this, see Silverman,

supra

note 80, at 289–92;

see also

Dep’t of Health v. Curry, 722 So. 2d 874, 878–79 (Fla. Dist. Ct. App. 1998).

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companies, or all of the above—but not religious concerns. Safety

concerns figure prominently.

122

Non-vaccinating parents also doubt the

effectiveness of vaccines and see vaccine-preventable diseases as

“mild.”

123

They mistrust health professionals and government sources.

124

A recent survey of those taking advantage of exemptions in New Mexico

demonstrated that their main concerns were not religion-based; however,

the state provides only a religious or a medical exemption, so these

parents must have used one or the other to obtain the exemption.

125

In his article, Dr. John Grabenstein points out that even among

religious communities, concerns about vaccines are often based on safety

or social concerns rather than theology.

126

Similar themes can be seen on

anti-vaccination websites.

127

A closer examination of two claims for religious exemptions can

provide a fuller picture of how this works. In Mary Check’s story,

publicized on the Internet through a fundraising site created by her

mother, Dina Check,

128

and a petition Dina created through

Change.org,

129

Dina talks about Mary crying and inconsolable after being

vaccinated. Dina suggests that a variety of Mary’s health problems are

related to vaccines.

130

Dina applied for a medical exemption, but, unsure

that she would get it, also applied for a religious exception. She

emphasizes her strong religious conviction and appeal to God. Without

122

. Allison Kennedy et al.,

Vaccine Attitudes, Concerns, and Information Sources Reported by

Parents of Young Children: Results from the 2009 HealthStyles Survey

, 127 Pediatrics S92, S95

(2011) [hereinafter Kennedy et al.,

Vaccine Attitudes

]; Allison M. Kennedy et al.,

Vaccine Beliefs of

Parents Who Oppose Compulsory Vaccination

, 120 Pub. Health Reps. 252, 252, 256 (2005)

[hereinafter Kennedy et al.,

Vaccine Beliefs of Parents

]; Katrina F. Brown et al.,

Factors Underlying

Parental Decisions About Combination Childhood Vaccinations Including MMR: A Systematic

Review

, 28 Vaccine 4235, 4243 (2010).

123

. Brown et al.,

supra

note 122, at 4243; Kennedy et al.,

Vaccine Attitudes

supra

note 122, at

S95; Kennedy et al.,

Vaccine Beliefs of Parents

supra

note 122, at 255.

124

Brown et al.,

supra

note 122, at 4243;

see

E. Allison Hagood & Stacy Mintzer Herlihy,

Addressing Heterogeneous Parental Concerns About Vaccination With a Multiple-Source Model: A

Parent and Educator Perspective

, 9 Human Vaccines & Immunotherapeutics 1790, 1791 (2013).

125

N.M. Dep’t of Health,

supra

note 2.

126

. John D. Grabenstein,

What the World’s Religions Teach, Applied to Vaccines and Immune

Globulins

, 31 Vaccine 2011, 2019 (2013).

127

See generally

Richard K. Zimmerman et al.,

Vaccine Criticism on the World Wide Web

, 7 J.

Med. Internet Research e17 (2005); Anna Kata,

A Postmodern Pandora’s Box: Anti-Vaccinaton

Misinformation on the Internet

, 28 Vaccine 1709, 1711–12 (2010) (also mentions moral reasons, but

they figure alongside the other reasons).

128

. Meet Mary

, Support Mary’s Rights, http://www.supportmarysrights.com/meet-mary.html

(last visited Aug. 1, 2014).

129

. The Legislature of the State of New York: Change the Law in NYS Allowing for Exemptions

to Vaccines for Any Reasons

, Change.org, http://www.change.org/petitions/the-legislature-of-the-

state-of-new-york-change-the-law-in-nys-allowing-for-exemptions-to-vaccines-for-any-reasons-2 (last

visited Aug. 1, 2014).

130

. Letter to the Public

, Support Mary’s Rights, http://www.supportmarysrights.com/letter-to-

the-public.html (last visited Aug. 1, 2014).

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doubting her sincerity, it is fairly clear that her reasons for not wanting to

vaccinate Mary are that she believes vaccines have harmed and will harm

Mary. That is what the court examining the issue concluded.

131

Dina Check provided the following explanation of the religious

aspect of her decision:

I am requesting this religious exemption because it is my strong belief

that all vaccines are made with toxic chemicals that are injected into

the bloodstream by vaccination. According to the FDA all vaccines are

made with foreign proteins (viruses & bacteria’s), and some vaccines

are even made with genetically engineered viral and bacterial

materials. . . . I believe that man is made in God’s image and the

injection of toxic chemicals and foreign proteins into the bloodstream

is a violation of God’s directive to keep the body, (which is to be

treated as a temple), holy and free from impurities . . .

132

This reflects common arguments made by anti-vaccination activists

and is, as is common among such groups, inaccurate in several ways:

vaccines are not injected into the blood stream, the substances in them

are found in nature, and the amounts of ingredients are too small to be

toxic.

133

On how she developed her views on vaccination, Dina explained:

Q: When did you adopt your religious views on vaccination?

A: When my daughter was an infant.

Q: Was there something that occurred that prompted—

A: Well, first of all, dealing with her situation, I—it did. I should say,

yes. Because dealing with her as a child, having her be so delicate to

everything that we did or g[ave] her as far as formula, food, anything

she would have a reaction to . . . . After she had her first shot, she had

chronic diarrhea, vomiting, screaming uncontrollably . . . . I was sick. I

knew I—I had a very bad feeling then, but I was not sure. I then would

go and reach for God and ask [H]im for the answers and what am I

doing, am I doing the proper thing. I was reaching for [H]is guidance.

134

The court quoted Dina as saying:

Plaintiff testified that she believes vaccinations pose a threat to her

daughter’s physical safety, saying that any immunization “could hurt

my daughter. It could kill her. It could put her in anaphylactic shock. It

could cause any number of things.” She also doubts that vaccines are

effective . . . .

135

Unsurprisingly, the court rejected Dina’s claim that her opposition to

vaccines was based on her religious beliefs. The court concluded that:

131

. Check

ex rel.

MC v. New York City Dep’t of Educ., No. 13-cv-791, 2013 WL 2181045, at *11

(E.D.N.Y. May 20, 2013).

132

Id.

at *6.

133

. Paul A. Offit & Rita K. Jew,

Addressing Parents’ Concerns: Do Vaccines Contain Harmful

Preservatives, Adjuvants, Additives or Residuals?

, 112 Pediatrics 1394, 1399 (2003).

134

. Check

ex rel.

MC, 2013 WL 2181045, at *7.

135

Id.

at *8 (citations omitted).

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[I]n light of Plaintiff’s medical concerns, her refusal to vaccinate her

child is based on her belief that vaccines can, and indeed have, caused

harm to her child. As succinctly stated in the R & R, “Plaintiff’s resolve

to protect her child does not constitute a religious belief.”

136

Furthermore, the court stated that:

[I]n light of Plaintiff’s extensive testimony emphasizing the malignant

effects that she believes past vaccinations have had on her daughter,

the harmful composition of the vaccinations, and her belief that further

vaccinations would physically endanger her daughter, the court

concludes only that Plaintiff’s aversion to immunization is here based

on her conviction that vaccines pose a severe medical risk to her child’s

welfare. The court in no way means to diminish or minimize Plaintiff’s

fear of immunization. That fear, however, is not a proper basis for a

religious exemption.

137

I do not know whether Dina has a valid medical claim, and it is not

relevant for the purpose of this analysis. The court was correct to say that

Dina’s reasons for not wanting to vaccinate were primarily health

concerns, not religious reasons. Her deep religious convictions may

strengthen her resolve to get her unvaccinated daughter into public

schools, but they are not at the heart of her opposition to vaccination.

Farina v. Board of Education

138

Mr. and Mrs. Farina submitted

forms obtained from the Internet to support their request for a religious

exemption. Here, too, the court highlighted that the main issue was not

religion: “Mrs. Farina’s repeated statements that her older son, who had

been immunized before the age of eight months, ‘regressed in speech and

behavior’ during the summer of 1997 raises the likelihood that the

Farinas’ concerns are for their child’s physical rather than his spiritual

health.”

139

While there may be small pockets of people who oppose vaccination

on religious grounds, sources examining the reasons for not vaccinating

suggest that the more common reasons given are not religious, but

generally ill-founded safety concerns.

B. Major Religions That Support Vaccinations

While courts in the United States interpret religion broadly,

focusing not on organized religion but on the existence of a personal

religious belief, the positions of organized religion can be instructive in

assessing the credibility of claims of religious objections. Simply put, if a

person’s religion does not object to—or even supports—vaccination, her

claim to a religious objection can be regarded somewhat suspiciously.

This Subpart demonstrates that some small, radical sects aside, no major

136

. Id.

at *2.

137

. Id.

at *3.

138

. 116 F. Supp. 2d 503 (S.D.N.Y. 2000).

139

. Id.

at 510–11.

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religion actually prohibits vaccines, and several religions actively

recommend, and according to some, require that parents vaccinate their

children against preventable diseases. Where religious scholars speak

against vaccines, it is often based on safety concerns, not religion. Where

scholars object on religious grounds, they do not prohibit vaccination,

but merely offer permission to avoid it.

140

1. Judaism

Starting with my own religion, while there is no one authoritative

voice in Judaism, all scholarly opinions I reviewed concluded that

Judaism either strongly recommends vaccines or, in the extreme case,

requires them. According to Rabbi Yitzchak Breitowitz from Yeshivas

Ohr Somayach, two religious principles explain Judaism’s approach to

vaccination.

141

First, a Jew is prohibited from placing her health or life in

unreasonable danger, because her life is not her own, it belongs to

God.

142

Second, a Jew is required not to expose others to danger, and in

fact, to take positive steps to rescue others from peril.

143

From these

principles, the Rabbi points to two possible approaches. According to

Rabbi Shlomo Zalman Auerbach, as long as there is a ninety percent or

higher compliance with vaccination—providing herd immunity

protection to the unvaccinated child and the larger community—parents

would not have a halachic obligation

144

to vaccinate, although vaccinating

is highly desirable and recommended (Rabbi Auerbach might support

excluding unvaccinated children from school because of the risk they

pose to others).

145

According to Rabbi Yosef Shalom Elyashiv, on the

other hand, as long as society supports vaccinating, not vaccinating is

negligent, even if the risk of an outbreak is small.

146

Rabbi Breitowtiz

quotes Rabbi Tatz:

“[F]ailure to immunize would amount to negligence . . . refusing

childhood immunizations on the basis of unsubstantiated fears of

vaccine side-effects is irresponsible . . . the danger of precipitating

epidemics of measles, poliomyelitis and other diseases with potentially

devastating complications is far more real than the dangers attributed

to vaccines on the basis of anecdotal claims. Until objective evidence to

140

See

Grabenstein,

supra

note 126, at 2014.

141

. Rabbi Yitzchak Breitowitz,

Vaccinations and Halacha

, Ohr Somayach (Aug. 24, 2013),

http://ohr.edu/5503.

142

. Id.

143

. Id.

144

. Halacha is a set of Jewish rules and practices.

See What is Halakha?

, JewFaq,

http://www.jewfaq.org/halakhah.htm (last visited Aug. 1, 2014).

145

. Id.

146

. Id.

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the contrary accrues, the halachically correct approach is to do what is

normal.”

147

Echoing this view, several Jewish scholars weighed in on the

question of whether immunizations of children who will attend school

are obligatory.

148

These scholars concluded that a requirement was

justified, and that immunizations are appropriate. Rabbi Milgram, citing

responses to the question of whether schools have the right to refuse

admission to unvaccinated children, stated that Jewish scholars generally

agree that schools have such a right. This conclusion is rooted, according

to the scholars Milgram cites, in the law of the land (state requirements)

and the Jewish principle of “pikvach nefesh,” the mitzvah (good deed) of

saving as many lives as possible. He explains:

Judaism, across the board, within every denomination, aspires to life

for those born into this world. In Deuteronomy (Devarim) 4:15 we

learn: V’nishmartem m’ode l’nafshoteikhem, “Greatly guard your

souls,” which has long been read in Jewish bioethics as a duty to

protect ourselves from disease. Reb Nachman of Breslov, who died in

1810 of tuberculosis long before treatment and a vaccine had been

identified in the second half of the twentieth century, wrote: “One

must be very very careful about the health of children . . . One must

inoculate every baby against smallpox before one-fourth (3 months) of

the year, because if not, it is like spilling blood (murder).”

149

Rabbi Elliot Kaplowitz said:

The overwhelming consensus in the medical community is that

immunization is a necessary and simple step to prevent the spread of

disease. Certainly if one takes the approach that there is a positive

commandment to proactively safeguard one’s health, it seems to me

that immunization is a necessary measure. In the context of this debate

one also hears the argument that it is selfish to not immunize because

of the potential threat this poses to others. An analogy may be built to

discussions in the Talmud of one who places a hazardous item in the

public thoroughfare. Such a person is negligent for any damages

caused.

As a final thought, there are those who undoubtedly will refuse to

immunize their children. I am reminded of the Gemara’s discussion of

the verse from Psalms 116:6 The Lord protects the foolish/simple.

150

Rabbi Noam Raucher, from the Conservative Jewish movement, says:

The Jewish view regarding immunizations for children at either Jewish

day or parochial schools is one of obligation on the part of the parent

to do so. The Jewish tradition considers fulfilling this obligation under

147

. Id.

(quoting Akiva Tatz, Dangerous Disease and Dangerous Therapy 48 (2013)).

148

. Rabbi Dr. Goldie Milgram et al.,

Regarding Immunizations for Children Who Will Be

Attending Day (Jewish or Parochial) Schools: What is the Jewish View on Whether This is Obligatory

or Optional? What Jewish Values or Ethics are Involved in This Question?

, Jewish Values Online,

http://www.jewishvaluesonline.org/566 (last visited Aug. 1, 2014).

149

. Id.

(citation omitted)

150

. Id.

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and number of precepts which pertain to: The health and safety of the

child, the health and safety of the community at large, the need for

preventative health care and abiding by the law of the land. (All

extensively addressed in Rabbi Joseph Prouser’s

teshuvah

, Jewish legal

ruling, on this matter for the Conservative movement’s Committee on

Jewish Law and Standards).

151

Rabbi Mark Washofsky provides the perspective of the Reform Jewish

movement:

In 1999, the [Responsa Committee of the Central Conference of

American Rabbis (CCAR), the association of Reform Rabbis] was

asked about a congregation’s policy to require certain immunizations

before children would be allowed to attend the congregational school.

Some parents, who regarded immunization as excessively risky, refused

to have their children immunized and challenged the policy. The

congregation wanted to know whether its policy was “correct and

justifiable according to Jewish tradition.”

In its responsum (opinion; teshuvah), the committee answered “yes.”

In arguing for its conclusion, the responsum makes several points.

First, Jewish law defines the practice of medicine as a mitzvah, an act

that enables us to fulfill the obligation of pikuach nefesh (the

preservation of human life), which our tradition regards as perhaps the

greatest mitzvah of all. Second, immunization has become accepted the

world over as an integral and vital element in the practice of medicine.

As with any other medical procedure, there are indeed risks involved

with immunization. But the responsum found that: a) these risks are far

outweighed by the benefits that immunization provides; b) the

scientific community has established effective programs to supervise

vaccine safety; and c) by refusing to immunize their children, parents

endanger not only the health of those children but of other members of

the community who remain susceptible to the disease even after they

have been immunized. For all these reasons, the responsum concluded

that a congregation or school is well within its rights to adopt a

compulsory immunization policy.

152

Even the presence of pork gelatin in some vaccines did not lead

scholars to conclude otherwise. In response to an inquiry from Public

Health England, Rabbi Abraham Adler from the Kashrus and Medicines

Information Service said, “It should be noted that according to Jewish

laws, there is no problem with porcine or other animal derived

ingredients in non-oral products. This includes vaccines, including those

administered via the nose, injections, suppositories, creams and

ointments.”

153

151

. Id.

152

. Id.

153

. Vaccines and Gelatin: PHE Response

, Gov.uk, https://www.gov.uk/government/news/vaccines-and-

gelatine-phe-response (last visited Aug. 1, 2014);

see Religious Approval for Porcine-Containing Vaccines

Inst. for Vaccine Safety (July 21, 2003),

http://www.vaccinesafety.edu/Porcine-vaccineapproval.htm (last

visited Aug. 1, 2014); Kashrut Authority of Australia & NZ, Facebook (last visited Aug. 1, 2014),

https://www.facebook.com/groups/221124927937142/permalink/516889978360634/

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When a specific Rabbi voiced opposition to vaccination,

154

he based

his opinion not on halachic principles, but on safety concerns based on

his acceptance of anti-vaccine claims, including the debunked claim that

vaccines cause autism.

155

I have found no halachic analysis opposed to

vaccines.

2. Islam

Some fundamentalist Muslim organizations in some regions have

denounced vaccination efforts as American plots to sterilize Muslim

populations and as efforts to avert the will of Allah.

156

Other Muslim

organizations that oppose vaccines, alleging that they disrupt the order of

Allah’s creation in that they are money-making plots for drug companies

of doubtful benefit (a general anti-vaccine theory in some Muslim

communities).

157

However, other Islamic sources have indicated that

immunizations are consistent with Islamic principles.

For example, in one fatwa—a religious opinion on a matter of

Islamic Law by an Islamic scholar—Shayh Bin Baaz said:

[T]he Prophet (peace and blessings of Allaah be upon him) said,

according to the saheeh hadeeth, “Whoever eats seven dates of

Madeenah in the morning will not be harmed by witchcraft or poison.”

This is a kind of warding off a problem before it happens. So if there is

the fear of sickness and a person is vaccinated against an infection that

is present in the land or elsewhere, there is nothing wrong with that,

because it is a kind of protection.

158

Similarly, a fatwa by the Islamic Fiqh Academy stated that:

Prevention of disease through vaccination is not a negation of trust in

Allah . . . . Indeed, real trust in Allah cannot be achieved except by

embracing the apparent causes which Allah has designed, by destiny or

?comment_id=524087324307566&offset=0&total_comments=123 (discussing an Australian point of view by

Rabbi Gutnick).

154

. Rabbi William Handler,

The Measles Scare and CDC Politics

, Jewish Press (July 10, 2013),

http://www.jewishpress.com/indepth/the-measles-scare-and-cdc-politics/2013/07/10.

155

. Id.

For an analysis of the problematic nature of that claim, see generally Stanley Plotkin et al.,

Vaccines and Autism: A Tale of Shifting Hypotheses

, 48 Clinical Infectious Diseases 456 (2009).

156

. Maryam Yahya,

Polio Vaccines—Difficult to Swallow, The Story of a Controversy in

Northern Nigeria

9–10 (Inst. Dev. Studies, Working Paper No. 261, 2006),

available at

http://www.ids.ac.uk/files/Wp261.pdf; Haider J. Warraich,

Religious Opposition to Polio Vaccination

15 Emerging Infectious Diseases 978, 978 (2009).

157

. Dr. Aisha Hamdan,

Immunizations—Harmful to Your Child or Not?

, Mission Islam,

http://www.missionislam.com/health/immunizationhurtornot.htm (last visited Aug. 1, 2014);

Farrakhan

Suspicious of H1N1 Vaccine

, United Press Int’l (Oct. 19, 2009, 11:56 PM),

http://www.upi.com/Top_News/US/2009/10/19/Farrakhan-suspicious-of-H1N1-vaccine/UPI-

63931256011008.

158

. Shayh Bin Baaz,

Ruling on Giving Treatment Before Sickness Occurs

, Islamic Articles,

http://islamicarticles.wordpress.com/medicine (last visited Aug. 1, 2014).

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by law, as requirements to produce effects. Thus, not giving vaccination

could be a prohibition if it causes harm.

159

And Dr. Hatem Al-Hajj, Dean of Shari’ah Academy of America, said:

As for the use of vaccines in general, the late Mufti of Saudi Arabia

Sheikh Abdul-Aziz Ibn Baz said, “There is nothing wrong with giving

medicine to ward off a feared disease, because the Prophet (peace and

blessings be upon him) said, ‘Whoever eats seven dates of Medina in

the morning will not be harmed by witchcraft or poison’” (Al-

Bukhari).

In fact, the Islamic Fiqh Academy of the Organization of the Islamic

Conference (OIC) considered vaccines important enough for public

safety that they did not require the patient’s permission for vaccination

(especially in such cases as epidemics). OIC decision no. 67 (7/5)

stipulated, “A guardian is entitled to obligate patients to have medical

treatment in some cases, such as if they suffer an infectious disease or

in the case of preventive vaccination.”

160

Most recently, a group of Muslim scholars from several Islamic states

held a conference on how to protect Islamic children from the poliovirus,

and concluded that Muslim parents are religiously obligated to vaccinate

their children.

161

Like Jewish scholars, Muslim scholars also addressed the issue of

pork gelatin in some vaccines, concluding that it does not preclude

vaccination. In 1995, the Islamic Organization for Medical Sciences

convened a seminar in Kuwait on the topic of “The Judicially Prohibited

and Impure Substances in Foodstuff and Drugs.” The World Health

Organization reported that:

The seminar issued a number of recommendations . . . stipulating, inter

alia, that: “Transformation which means the conversion of a substance

into another substance, different in characteristics, changes substances

that are judicially impure . . . into pure substances, and changes

substances that are prohibited into lawful and permissible

substances.”

162

Consequently, the scholars determined that the transformation of

pork products into gelatin alters them sufficiently to make it permissible

for observant Muslims to receive vaccines containing pork gelatin and to

159

. Statement from the International Islamic Fiqh Academy to Encourage Vaccination Against Polio

Commc’n Initiative (Sept. 30, 2009 10:30 AM), http://www.comminit.com/?q=polio/node/303223.

160

. Doubts About Vaccination

, OnIslam.net (Feb. 20, 2011), http://www.onislam.net/english/ask-

the-scholar/fiqh/451044-vaccines-and-the-dangerous-ingredients-therein.html (emphasis in original).

161

. Tahir Khan,

Polio Eradication: Muslim Scholars Deny Polio Vaccine Rumours

, Express

Tribune (Mar. 10, 2013), http://tribune.com.pk/story/518534/polio-eradication-muslim-scholars-deny-

polio-vaccine-rumours.

162

. Letter from Dr. Hussein A. Gezairy, Regional Director, Reg’l Office of the World Health

Org. for the E. Mediterranean, to Dr. Zaffron, et al. (July 17, 2001),

available at

http://www.immunize.org/concerns/porcine.pdf.

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take medicine packaged in gelatin capsules.

163

Dr. Hatem Al-Hajj also

said:

As for impure additives, if any, they are too insignificant to be

considered, and they are often processed into completely different

substance. The ruling adopted by majority of contemporary Muslim

scholars, and supported by a decision of the Islamic Fiqh Academy, is

to avoid impurities such as gelatin in medicines unless there is no

alternative to a particular impurity-containing medicine, in which case

it may be consumed (that does not include unconsumed wine

specifically).

164

3. Christianity

Because it is impossible to cover all sub-divisions of Christianity,

this Subpart only addresses the larger groups.

a. Catholics

The focus of the discussion in Catholic sources is on whether it is

permissible for parents to vaccinate children with vaccines for which the

viruses were grown using cell lines derived from abortions. Responding

to these concerns, the Catholic Church made a strong statement in

support of vaccination as protecting the public health, children, and

others. The Pontifical Academy for Life discussed the question in 2005,

and issued a thorough document concluding that if an alternative product

was accessible and just as effective, parents should use that product. But

the group also concluded that where no such alternative exists, parents

should use the vaccines derived from the cell line to prevent harm to

their own children and others, especially pregnant women.

165

In fact, the

opinion explained the moral obligation parents have to vaccinate against

rubella:

This is particularly true in the case of vaccination against German

measles, because of the danger of Congenital Rubella Syndrome. This

could occur, causing grave congenital malformations in the foetus,

when a pregnant woman enters into contact, even if it is brief, with

children who have not been immunized and are carriers of the virus. In

this case, the parents who did not accept the vaccination of their own

children become responsible for the malformations in question, and for

the subsequent abortion of foetuses, when they have been discovered

to be malformed.

166

163

Id.

164

. Doubts About Vaccination

supra

note 160.

165

. Pontifical Academy for Life,

Moral Reflections On Vaccines Prepared From Cells Derived

from Aborted Human Fetuses

, 6 Nat’l Cath. Bioethics Q. 541 (2006);

see

Rev. Tadeusz Pacholczyk,

The Morality of Vaccinating Our Children

, Nat’l Cath. Bioethics Ctr. (Aug. 1, 2005),

http://www.ncbcenter.org/page.aspx?pid=251.

166

. Pontifical Academy for Life,

supra

note 165, at n.15.

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In other words, if a family decided not to vaccinate and a child

infected a pregnant woman with rubella, the parents who chose not to

vaccinate are responsible for harm to the fetus.

b. Methodists

The United Methodist Church has expressed its opposition to

vaccines containing mercury, and urged removal of the preservative

thimerosal from vaccines.

167

In spite of this concern, however, the United

Methodist Church did not recommend avoiding vaccines, instead

recommending: “[U]ntil mercury is banned from medicine, the medical

missions, hospitals, clinics and ministries of The United Methodist

Church strongly encourage use of mercury-free vaccines over mercury-

containing ones.”

168

Even while advocating for a change, and expressing

concern about the contents of some vaccines, the church is not

recommending avoidance of vaccines.

As a side note, vaccines have not contained thimerosal since 2001,

with the exception of multi-dose flu vaccines, and even so, it has never

been connected to harm.

169

c. Lutherans

The Evangelical Lutheran Church in America has expressed its

support of vaccination at different times in several different contexts. For

example, in a position paper on death in 1982, the church said:

Today it is commonplace to speak of the triumphs of modern

medicine—achievements such as open heart surgery and organ

transplants, dialysis machines that substitute for the kidneys,

pacemakers that regulate the beating of the heart, and vaccines that

have made once-dreaded diseases almost forgotten words. Each of

these discoveries has saved countless lives and relieved much

suffering.

170

The church engages in numerous efforts to provide vaccines to those

who need them, demonstrating in action its support of immunization. For

example, the Church’s Website gives members the option of donating

specifically to provide vaccines. The Church points out that it “is

estimated that more than 5,000 children and adults die each day from

diseases that could be prevented by vaccinations. Immunizing a child

against preventable diseases like polio, tetanus, diphtheria, pertussis and

167

Protecting Children from Mercury-Containing Drugs

, United Methodist Church,

http://www.umc.org/what-we-believe/protecting-children-from-mercury-containing-drugs (last visited

Aug. 1, 2014).

168

Id.

169

Vaccines and Thimerosal

, Children’s Hosp. Phila., http://www.chop.edu/service/vaccine-

education-center/vaccine-safety/vaccine-ingredients/thimerosal.html (last visited Aug. 1, 2014).

170

. Lutheran Church in Am., Death and Dying 1 (1982),

available at

http://download.elca.org/ELCA%20Resource%20Repository/Death_and_DyingLCA82.pdf.

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measles will help him or her live a long, healthy life.”

171

A quick Google

search reveals that a large number of Lutheran schools require

vaccinations,

172

and that several Lutheran churches offer low-cost

vaccination clinics.

173

d. Church of Jesus Christ of Latter Day Saints (Mormons)

Since at least 1978, the Church of Jesus Christ of Latter Day Saints

(“LDS”) has been adamantly pro-vaccine, as indicated by this statement

from the First Presidency: “We urge members of The Church of Jesus

Christ of Latter-day Saints to protect their own children through

immunization. Then they may wish to join other public-spirited citizens

in efforts to eradicate ignorance and apathy that have caused the

disturbingly low levels of childhood immunization.”

174

Recently, LDS has

made immunization an official initiative, joining other humanitarian

initiatives, such as clean water and food production, as a focus for LDS

volunteer efforts.

175

e. Episcopalians

The Episcopalian church has expressed its support of vaccination

efforts in Africa. Among other things, Katharine Jefferts Schori, the

Presiding Bishop of the Episcopal Church of the United States, said:

Polio is a terrible disease, that’s been eradicated from most parts of the

world. People, especially children, still get the disease in Pakistan,

Afghanistan, and Nigeria—and almost nowhere else. The campaign to

end polio has been working very hard to vaccinate children and wipe

out the virus, and it could probably be accomplished within five years.

Only a few hundred children are infected and paralyzed each year, but

eliminating the disease means vaccinating large populations so no one

can pass on the virus. Those nations where polio still survives have

large groups of people who are very suspicious of the vaccine

campaigns. A number of health workers have been murdered because

of those suspicions—that the vaccine actually has HIV in it, or some

171

. Vaccinations for a Child

, Evangelical Lutheran Church in Am.,

https://community.elca.org/GoodGifts-Health-care?&nccsm=21&__nccspID=1059 (last visited Aug. 1, 2014).

172

Immunizations

, Pac. Lutheran Univ., http://www.plu.edu/health-center/new-students/

immunizations/home.php (last visited Aug. 1, 2014).

173

See, e.g.

Flu Vaccine FAQ

, Rochester Cent. Lutheran Sch., http://www.rcls.net/wpweb/flu-

vaccine-faq (last visited Aug. 1, 2014);

Concordia to Offer Flu Vaccine Clinic at Oktoberfest

Concordia Lutheran Ministries, http://www.concordialm.org/news/press-room/2-uncategorised/98-

clinic-at-oktoberfest (last visited Aug. 1, 2014);

Blood Drive and Flu Shot Clinic

Lord of Life

Church, http://www.lolchurch.net/blood-drive-and-flu-shot-clinic (last visited Aug. 1, 2014).

174

. Immunize Children, Leaders Urge

, Church of Jesus Christ of Latter-Day Saints,

http://www.lds.org/liahona/1978/07/immunize-children-leaders-urge?lang=eng (last visited Aug. 1, 2014).

175

. Heather Whittle Wrigley,

Church Makes Immunizations an Official Initiative, Provides Social

Mobilization

Church of Jesus Christ of Latter-Day Saints (June 13, 2012),

http://www.lds.org/church/news/church-makes-immunizations-an-official-initiative-provides-social-

mobilization (last visited Aug. 1, 2014).

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kind of poison or contraceptive, or that American spies are using the

campaign for other purposes. There aren’t enough security forces to

protect all the health workers, but brave people keep signing up to help

because they believe so fervently in the possibility of healing. That’s

mission—offering yourself as a living sacrifice.

176

Schori also asserted:

In some parts of the world, those who vaccinate children or educate

girls or liberate the poor are offering their very lives out of this

audacious and holy hope. In all those labors we believe that God has

given us what is necessary. We believe this underlies efforts toward

self-sustainability.

177

f. Presbyterians

A request for information to the Presbyterian Church led to the

following email response:

We appreciate your inquiry as to formal statements of our General

Assembly on the subject of vaccination of children or adults in relation

to our faith stance. You are correct in understanding our position in

general to support scientific medicine at every point, without denying

the holistic reality of our embodied selves. Susan Stack and Bonnie

Hoff have both gone through our past social policies and found one

recent instance where vaccination campaigns are endorsed (probably

with the assumption that these campaigns are needed overseas).

My own quick look at sources not online shows missionary nurses in

New Mexico in 1928 putting an emphasis on vaccination (p. 161, 1928

Report of the Board of National Missions). A 1937 report supportive

of the US Public Health Service went so far as to affirm their work in

preventing venereal diseases among old and young: “We urge the

fullest cooperation with national, state, and local agencies in the

promotion of social hygiene activities.”

Thus, while voluntary language and encouragement may be used at

various points in our social witness policies, the presumption would be

in favor of public resources being used for the highest possible levels of

public health and safety.

Please let us know if there are other concerns. We have fairly extensive

health policies and continue some health work, mainly overseas.

178

C. Even Sects Opposed to Modern Medicine Do Not Prohibit

Vaccines

Supporters of religious exemptions often suggest that they are

especially important for small, potentially persecuted minorities like

176

. Katharine Jefferts Schori,

St. Peter’s—Confirmation/Eucharist

, Episcopal Church (July 23,

2013), http://www.episcopalchurch.org/page/st-peters-confirmationeucharist.

177

. Katharine Jefferts Schori,

Day of Ascension—Global Episcopal Mission Network

, Episcopal Church

(May 9, 2013), http://www.episcopalchurch.org/page/day-ascension-global-episcopal-mission-network.

178

. Email from Rev. Christian T. Iosso, Ph.D., Coordinator at the Advisory Committee on Social

Witness Policy, to David Coolidge (Nov. 1, 2013) (on file with author).

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Jehovah’s Witnesses and Christian Scientists. Examination of these

groups’ positions on vaccines led to a surprising conclusion: neither

group prohibits vaccination.

1. Jehovah’s Witnesses

Early Jehovah’s Witnesses were strongly against vaccination, based

on a Biblical prohibition of the eating of blood.

179

However, in response

to a 1961 question regarding vaccination and the eating of blood, the

Watchtower responded that the entire medical practice involving the use

of blood is objectionable:

[H]owever, vaccination is a virtually unavoidable practice in many

segments of modern society, and the Christian may find some comfort

under the circumstances in the fact that this use is not in actuality a

feeding or nourishing process, which was specifically forbidden when

that man was not to eat blood, but it is a contamination of the human

system. So, as was stated in The Watchtower of September 15, 1958,

page 575, “It would therefore be a matter of individual judgment

whether one accepted such types of medication or not.” That is still the

Society’s viewpoint on the matter.

180

This position appears to be consistent with current Jehovah’s

Witness position that prohibits blood transfusions, but accepts that the

majority of medical procedures do not conflict with the Bible.

181

Therefore, personal choice is involved and “one Witness might decide to

accept a particular . . . treatment, while another Witness might reject that

same treatment.”

182

2. Christian Scientists

Of all religions, Christian Scientists can probably make the strongest

claim that they oppose vaccines. However, a believer would not be put in

a position of choosing between obeying the law and their faith if the

religious exemptions did not exist. While Christian Scientists believe in

the healing power of prayer rather than modern medicine,

183

Mary Baker

Eddy, the founder of Christian Science, said, on the topic of vaccination,

that “rather than quarrel over vaccination, [she] recommend[s], if the law

179

. The Golden Age

, Jehovah’s Witnesses (Jan. 3, 1923) 214;

The Sacredness of Human Blood

Golden Age, Jan. 3, 1923, at

293, 293 (“Vaccination is a direct violation of the everlasting

covenant that God made with Noah after the flood.”).

180

. The Watchtower

(Nov. 1, 1961) 670.

181

. Do Jehovah’s Witnesses Accept Medical Treatment?

, Jehovah’s Witnesses,

http://www.jw.org/en/jehovahs-witnesses/faq/jehovahs-witnesses-medical-treatment (last visited Aug. 1, 2014).

182

. Id.

183

. Science and Health

, Christian Science, http://christianscience.com/read-online/science-and-

health/(chapter)/chapter-i-prayer#anchor.1.1 (last visited Aug. 1, 2014).

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demand, that an individual submit to this process, that he obey the law,

and then appeal to the gospel to save him from bad physical results.”

184

Based Eddy’s reasoning, among other things, one Christian Scientist

who was told to get vaccinated before his military travels agreed to the

vaccines. In explaining his decision, he stated:

First, I reasoned that the work I was to undertake as a chaplain would

be a blessing for the troops involved in the training exercise. Then, I

checked what Mary Baker Eddy had written about one form of

inoculation—in this case, vaccination . . . .

. . .

Finally, I reasoned that the military personnel who had established

these rules were trying to take care of others out of honest concern for

their protection—and I respected their stance. This was their way of

loving their neighbor. So I took the inoculations the afternoon we left,

without in any way surrendering my standpoint that God was the

greater protective power. I’m grateful to say I didn’t have any of the

side-effects I was told I might suffer.

185

D. People Say That It is Not About Religion

In numerous statements on anti-vaccination websites, people openly

say that this is not about religion. Extensive advice is provided on such

Websites to help parents obtain religious exemptions. This Subpart

focuses on people who openly state that they lie about religion. This

Subpart does not focus drafts of requests for religious exemption;

186

advice on specific religious claims parents can make and how to word

them;

187

warnings not to go into too much detail about your religious

184

. Mary Baker Eddy, The First Church of Christ, Scientist, and Miscellany 219–20 (1917);

Christian Science Sentinel, http://sentinel.christianscience.com/concordapi/

view?q=quarrel+vaccination&book=tfccs.main.pw.my&verbatim=1 (last visited Aug. 1, 2014).

185

. Ryder Stevens,

Worldwide Immunity Through Prayer

, Christian Science Sentinel (May 26,

2003), http://sentinel.christianscience.com/shared/view/1l9mvxk1tvc?s=t (citation omitted).

186

. Hints for Religious Exemptions to Immunizations

, VaccineInfo.net (Apr. 5, 2008),

http://www.vaccineinfo.net/exemptions/relexemptlet.shtml;

Sample Religious Exemption Letter and

Supporting Documentation

, Planet Infowars, http://planet.infowars.com/health/vaccine-exemption-

example-letter-2 (last visited Aug. 1, 2014).

187

. FAQ: Religious Exemption

, K.N.O.W. Vaccines, http://www.know-vaccines.org/?page_id=28

(last visited Aug. 1, 2014) (“Vaccines are made with toxic chemicals that are injected into the

bloodstream by vaccination. All vaccines are made with foreign proteins (viruses and bacteria), and

some vaccines are made with genetically engineered viral and bacterial materials. A conflict arises if

you believe that man is made in God’s image and the injection of toxic chemicals and foreign proteins

into the bloodstream is a violation of God’s directive to keep the body/temple holy and free from

impurities. A conflict arises if you accept God’s warning not to mix the blood of man with the blood of

animals. Many vaccines are produced in animal tissues. A conflict arises if your religious convictions

are predicated on the belief that all life is sacred. God’s commandment ‘Thou Shall Not Kill’ applies to

the practice of abortion.”);

Letter for Religious Exemption to Mandatory Vaccination

, Goldrust.net,

http://www.goldrust.net/religion.htm (last visited Aug. 1, 2014) (citing various religious scripture

references to use in letters);

Religious Conviction

, K.N.O.W. Vaccines, http://www.know-

vaccines.org/?page_id=247 (last visited Aug. 1, 2014) (citing various religious scripture references to

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beliefs;

188

and so on. The names of the individuals quoted below have

been hidden to preserve their identities.

189

1. Real Concern: Safety

Some comments indicate that the real concern is safety, with the

religious argument being used as a way to evade the obligation to

vaccinate.

190

For example, one comment states:

“My sister is living in NM and needs to get a vaccine waiver for her 2

children. Her son has some shots but due to his backtracking after a

series of vaccines she is not wanting to do anymore [sic] at this time.

She needs to get him enrolled in school but they only accept medical or

religious exemptions. She has to right [sic] the reason for her ‘religious

beliefs’ against the kids being vaccinated and then it has to be

approved. What is the best wording for her to use for this?”—

Anonymous

191

The real reason is clearly not religious. Similarly, another poster

explains:

I claim a religious exemption even though I selectively vaccinate and

I’ve given more vaccines to my older children than younger. I DO

NOT EXPLAIN IT. I simply state that I’m taking a religious

exemption.

IF I were questioned on it…I would say that I believe my religion

commands me to make decisions in the best interests of my child, and

as I have researched vaccines, I have decided that certain vaccines are

not in my child’s best interest.

use in letters); Sarah_bara84, Comment to

Letter Requesting Religious Exemption for Forced Flu

Vax . . . What Do You Think?

, BabyCenter (Aug. 12, 2012), http://community.babycenter.com/

post/a35633233/letter_requesting_religious_exemption_for_forced_flu_vax...what_do_you_think (“As

a practicing Christian, I believe that my body is a gift from God and a temple of the Holy Spirit (see I

Corinthians 6:19,20), and that it must not be polluted (see 2 Corinthians 7:1).”);

Religious Convictions

Vaccination Liberation, http://www.vaclib.org/news/religion.htm (last visited Aug. 1, 2014) (citing

various religious scripture references to use in letters).

188

. See FAQ Religious

Exemption, K.N.O.W. Vaccines, http://www.know-vaccines.org/

?page_id=28 (last visited Aug. 1, 2014) (“When requesting a religious exemption, it is NOT necessary

to provide any administrative evidence that proves your religious beliefs. Any agent acting on behalf

of the state in compliance with vaccine mandates may not ask for religious documentation, letters from

religious leaders, or church membership. It is also not necessary to discuss any other particulars

regarding your beliefs or your child’s health history.”);

see also

Religious Exemption in New Jersey

Vaccination Liberation (Aug. 13, 2003), http://www.vaclib.org/chapter/exemptnj.htm (“In June of

this year one family in Senator Martin’s District 26 used my religious exemption letter and the Health

Department rejected it because it was ‘too long.’”); Twoplussixis8, Comment to

Immunization

Exemption Letter

, Mothering (May 2, 2008), http://www.mothering.com/community/t/890537/

immunization-exemption-letter.

189

. This was done pursuant to the IRB exemption determination.

See supra

note 6.

190

. See supra

Part II.A (discussing the case of Mary Check).

191

See infra

Appendix A, Figure 2.

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My advice is to say as little as possible. Do not put more “out there” to

be challenged than you need to.

192

She wants to refuse vaccines based on her “research,” and hopes to use

the religious exemption, although her main concern is not based religion.

The parent who posted the following comment is clearly focused on

her child’s safety rather than having real religious motivation:

From a fan:

“Should I be concerned that when my child enters school the religious

exemption may no longer ‘be allowed’?? I have a 13 month old and the

more research I do, the more and more certain I become that I do not

want to vaccinate. Should I go ahead and complete the steps for

religious exemption?? My thoughts are if they ever do make it

MANDATORY I would be grandfathered in. We live in Virginia.

Thanks for your guidance.”

193

2. People Using a Religion They Do Not Believe In or Supporting

a Fake Religion

In other cases, parents explain that they will assert that they follow a

religion that is not their own, or even create a fake religion, to obtain an

exemption. For example:

I am sure there will be exemptions allowed: Medical and Religious for

sure! There has to be!!!! Note [sic] hard to find Bible verses to prohibit

immunizations. Check out the verses that Christian Scientist use. I am

not a CS but I used these verses to qualify for religious exemption for

my 3 sons ..... grade school thru [sic] college. No problem!!!!

If not ..... expect to see a spike in adverse reactions.

194

Similarly, one non-Catholic parent used a Catholic organization to obtain

her exemption: “I am one of the administrators for the page here in

Michigan and obtained a religious exemption within my Catholic

organization. I am not Catholic but they accepted it.”

195

The parent who posted the following, no longer a practicing

Christian Scientist, attended Church on a few occasions just to get the

exemption:

I don’t know much about NJ but I grew up Christian Scientist (not to

be confused with Scientology!!!) and therefore was exempt from

receiving all of my shots as a child & into adulthood. You may have to

go to church a few times but if you get a letter that exempts your child

from receiving vac’s [sic] due to religious views, then it’s worth it. I’ll

admit, I no longer attend this church, however, I’ve had to make a few

appearances so that when it comes time to put my LO in daycare (she’s

almost 5 months) I’ll be prepared. So my suggestion is to find a

192

See infra

Appendix A, Figure 3.

193

See infra

Appendix A, Figure 4.

194

See infra

Appendix A, Figure 5.

195

See infra

Appendix A, Figure 6.

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Christian Science church… It’s 1/2 Christian and 1/2 mind over matter

applied science of the mind. No brainer. GL!

196

Finally, this parent encouraged others to join a church—for a donation—

for the sole purpose of obtaining the religious exemption, no sincerity

needed:

[P]ossible solution for religious exemption people—join the

Alphabiotic alignment unification church and be exempt. [J]ust find a

local alphabiotist office and join for minimal donation and you are in.

[A]lso one question—do parents need to go for exemption to md every

year or just once for the kids’ life? every year will suck and drive md’s

[sic] crazy. [O]nce is not so bad.

197

3. Clear Lies

Several people openly admit that they lie and discuss the morality of

it. This parent, for example, uses a religious exemption in spite of being

an atheist:

I filed a religious exemption in VA and no one batted an eye or

questioned my beliefs. I’m actually an atheist but it’s the only

exemption option, aside from medical in VA. Once I was asked by a

nurse at the dr.’s office about my religion but just told her that I

believe religion is a personal thing and I don’t like to discuss it.

198

This parent also admits to using the religious exemption even though she

is an atheist:

Comment 1: Its not there [sic] business what your religion. Twll [sic]

them to take tge [sic] exemption or hear from your lawyer. I use one

for daycare in nj right now.

Comment 2: Religion = whatever I say it means. That’s the beauty of it.

Comment 3: If you whole heartedly believe that vaccines are a danger,

that is a religiously held belief  I am also an atheist and claim

religious exemptions.

199

Another parent openly stated that she lied on her religious exemption. In

response to this claim, one group stated, “Be careful what you put here.

This is a public site.” In response, the original poster said, “[M]y kids are

adults now. So I don’t have to lie.”

200

One parent openly admitted, “I use a religious exemption in Iowa

and my older children are fully vaccinated. No problems at all :) and I’m

not even religious…if any one asks ill [sic] tell them I worship at the

house of my own family.”

201

In response, another poster said, “[Y]ou can

use philosophical. [M]y daughter had her vaccines until she was 2 and i

196

See infra

Appendix A, Figure 7.

197

See infra

Appendix A, Figure 8.

198

See infra

Appendix A, Figure 9.

199

See infra

Appendix A, Figure 10.

200

See infra

Appendix A, Figure 11.

201

See infra

Appendix A, Figure 12.

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use that exemption, and im in ohio [sic]. [J]ust write a note saying u [sic]

are not vaccinating and are using that exemption and turn in the shot

record.”

202

Other parents advised a parent who openly stated that she was an

atheist that she could, nonetheless, obtain the religious exemption. The

initial poster asked, “Anyone else here in New Jersey that don’t

vaccinate [sic] and their kids are in public school? I’m trying to look for a

way around this vaccinating thing. We currently have a medical and

religious exemption. Being an atheist I don’t think that the religious

exemption is going to work.” In response, others responded, “You don’t

have to disclose a religion,” “Oh, it will work ,” and:

Yeah, you don’t disclose what religion and it’s illegal for anyone to

even ask you. My husband is Jewish and I’m an agnostic heathen, but if

we ever choose not to home school (we do live in NJ, but are home

schooling for now) we’ll be using the religious exemption. In all

honesty I would fake a religion if I had to, just to keep away the

vaccines.

203

Openly admitting she is not religious, this parent asked what she

should say—though it would be untrue—to obtain a religious exemption:

My daughter was fully vaxed til nine months old and we are now

stopping all vax at one year. I plan to homeschool her but you never

know what will happen. [ ] does not allow philosophical exemption. We

are not religious at all but obviously that would be the one we would

use. What would we say, what is the actual reason why it conflicts

religiously? Thanks!

204

Finally, this parent claims to be unrepentant about her decision to

lie to obtain a religious exemption, blaming her state for not having a

philosophical exemption, “I know others that are made that certain ppl

[sic] like me are lying about our religion. Im [sic] an atheist but I use a

religious waiver for my kid. I fully think there should be philosophical

exemptions in every state.”

205

In short, these parents openly admit to lying to obtain the religious

exemption. Consider that these are only those who are willing to admit

their lies on an open forum on the Internet.

III. What Are the Options?

As discussed, the religious exemption offered in several states is

vulnerable to abuse, and is indeed abused. Part of what makes it

vulnerable to abuse is our jurisprudence, as set out in Part I. I agree with

much of this jurisprudence: there are real dangers in allowing states to

202

Id.

203

See infra

Appendix A, Figure 13.

204

See infra

Appendix A, Figure 14.

205

See infra

Appendix A, Figure 15.

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police religion (as will be clear from the first option I propose). Courts’

hesitance to allow the executive to monitor religion is understandable,

and potentially justified. But this may lead to an increase in insincere

religious exemptions. This is problematic for two reasons. First, as the

rates of exemptions rise, herd immunity is eroded and the chances of an

outbreak increase.

206

Second, by making the exemption contingent on

religious beliefs, states that do not have a philosophical exemption are

pushing those who have non-religious reasons to lie.

These two problems can be handled in one of three ways. First,

states could keep the religious exemption but make it difficult to obtain

and provide agencies with strong tools to police the exemption. Second,

states could remove all exemptions except medical ones. Third, states

could provide a personal choice exemption that is difficult to attain. The

first option is problematic, but the latter two each has its own balance of

costs and benefits, and the choice between them is not an easy one.

Although state legislators ultimately decide which policy to enact, the

second and third options also leave room for judicial involvement.

A. Tightening Religious Exemptions

New York has an exemption that requires the applicant to

demonstrate—with potential judicial supervision—that her opposition to

vaccines is both religious in nature and sincere.

207

One potential solution

is to model other states’ exemptions on New York, both in terms of the

statutory language and in terms of the state’s enforcement policy.

Nothing would completely prevent people from getting a religious

exemption with false pretenses (or lying in other ways), but adopting a

law similar to New York’s law could reduce the extent of misuse.

There are a number of problems with this approach, however. First,

as Alicia Novak points out, inquiry by the state into the sincerity of a

religious belief may be unconstitutional.

208

Novak points out that

evaluating sincerity requires high levels of entanglement with the

individual’s beliefs, and may therefore violate the

Lemon

test.

209

Note that no court has actually struck down an exemption that

required a showing of sincerity. But it is extremely problematic to allow

the state to police and evaluate religious beliefs. While I do not doubt the

good faith of health department officials (although many of the anti-

206

. Alison Buttenheim et al.,

Exposure of California Kindergartners to Students With Personal

Belief Exemptions From Mandated School Entry Vaccinations

, 102 Am. J. Pub. Health e59, e59–e60

(2012); Imdad et al.,

supra

note 31, at 40; Omer et al.,

Geographic Clustering

supra

note 31, at 1389;

Amy Parker Fiebelkorn et al.,

Measles in the United States During the Postelimination Era

202 J. Infectious Diseases 1520, 1525 (2010).

207

. Berg v. Glen Cove City Sch. Dist., 853 F. Supp. 651, 655 (E.D.N.Y. 1994).

208

. Novak,

supra

note 57, at 1114–15.

209

Id.

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vaccine activists do), it is easy—even with the best intent—to misuse such

power, especially if the decisionmaker does not share the values of the

exemption-seeking parent, which is almost always the case. Novak writes:

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. This excessive entanglement therefore

does not satisfy the third prong of the

Lemon

test.

210

In addition, any religious exemption invites people whose reasons

for not vaccinating are not religious to lie to try to fit into the exemption,

using one of the tried and true tactics mentioned in Part II—for example,

joining a church for the purpose of obtaining an exemption or

misrepresenting the real reason for opposing vaccination.

211

Even in New

York, effective supervision varies among schools, with private schools

occasionally having very lax oversight of exemptors’ reasons.

212

There is

substantial likelihood that the end result of this approach is to privilege

those who have the money, time, and sophistication to consult a lawyer

before applying for an exemption. It also probably privileges the better

or more sophisticated liars among those requesting exemptions. A policy

that incentivizes people to lie, and rewards them for lying well—or places

them in a bind if they do not—seems problematic. Not that it does not

happen in a variety of contexts in our country, but when alternatives

exist, it is probably not the best choice. Thus, I would not recommend

tightening the religious exemption.

210

. Id.

at 1114 (quoting Sherr v. Northport-East Northport Union Free Sch. Dist., 672 F. Supp.

81, 94 (E.D.N.Y. 1987)).

211

. In several places, attorney Alan Phillips, who specializes in vaccine-related issues, including in

helping people obtain exemptions, mentions that “the law in this area is not consistent with most

people’s common sense approach to the task. In my experience, most people who write a statement of

religious beliefs opposed to immunizations on their own end up falling into one or more legal pitfalls

that can cost them the exemption.” Phillips,

supra

note 120, at 104. Perhaps unfairly, I interpret this

to mean: since, for many of you, the real reasons for not wanting to vaccinate are not based on

religious beliefs, but safety concerns, you may write something that reflects your true reasoning and

not get a religious exemption.

212

. Clint Rainey,

Immune to Logic: Some New York City Private Schools Have Dismal

Vaccination Rates

Daily Intelligencer (Mar. 30, 2014, 9:07 PM), http://nymag.com/daily/

intelligencer/2014/03/some-nyc-schools-show-dismal-vaccination-rates.html.

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B. Only Provide a Medical Exemption

Another way to address the problem would be for a state to abolish

all exemptions other than a medical exemption. In other words, the only

way a child may be sent to school without the required immunizations

would be if that child had a medical reason—acknowledged by the

state—not to get the vaccine. This option places the strongest limitation

on parental autonomy, but may minimize the number of exempt

children, reduce the chances of outbreaks, and protect the largest

possible number of children against disease.

Dr. Paul Offit

213

of the Children’s Hospital of Philadelphia is

perhaps the most eloquent proponent of this approach. Offit sees

religious exemptions as a wrong against, first and foremost, the

unvaccinated children themselves, although also to those the

unvaccinated children may infect. Describing an outbreak of measles in

Philadelphia in 1991 that centered around two non-vaccinating churches,

Offit criticizes the decision not to vaccinate and its cost in lives:

The nine who died were all children. Church members had made a

decision for their own children as well as those with whom their

children had come in contact.

214

. . .

Children whose parents hold certain religious beliefs shouldn’t be

afforded less protection than other children. That the commonwealth

has allowed children to die from measles, bacterial pneumonia, or

leukemia in the name of religion is inexplicable. That it continues to

allow such abuse in the face of recent deaths is unconscionable.

Pennsylvania should repeal its religious exemptions for medical

neglect. Otherwise, children will continue to suffer and die

needlessly.

215

This is a powerful argument. Most of us no longer see the harms of

vaccine-preventable diseases. Offit does. As an Infectious Diseases

Specialist, he often sees children suffering from diseases, including

vaccine-preventable diseases. On occasion, he sees them die because

their parents did not vaccinate them. It is not surprising that he sees the

cost of non-vaccination as too high. Offit believes that every harm or

death that can be prevented should be prevented. Since serious harms

from vaccines are an order of magnitude less frequent than those

stemming from the diseases themselves, and actually very rare indeed,

216

vaccinating is the best way to prevent harms to the children.

213

Paul Offit

, Paul-Offit.com, http://paul-offit.com (last visited Aug. 1, 2014);

About Paul Offit

Paul-Offit.com, http://paul-offit.com/about (last visited Aug. 1, 2014).

214

. Paul A. Offit,

End Religious Exemption

, Philly.com (May 10, 2013),

http://articles.philly.com/2013-05-10/news/39144680_1_child-abuse-neglect-first-century-gospel.

215

. Id.

Offit was talking about religious exemptions more broadly than vaccination.

216

See

supra

note 18 and accompanying text.

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Providing only medical exemptions may minimize the number of

exemptions overall, offering maximum protection to children and

helping to prevent outbreaks. This comes with costs, though. The first

cost is a loss of parental control. United States courts have long

recognized the special role of parents as guardians and trustees of their

children.

217

This is not just an acknowledgement of the parent’s

authority, and not just a matter of rights. General policies are designed at

the population level. A specific child might have special needs. In the

normal state of affairs, a parent would know their child’s situation best

and would passionately advocate for that child’s interest. The best way to

protect the child, usually, is to give the parent the autonomy to manage

the child.

Since the parent also has the responsibility of raising, educating and

disciplining the child, it is even more important for the parent to have the

authority and ability to make basic decisions for the child. Especially

when there is more than one right way to handle the child’s affairs, we

want to respect the parents’ choices.

218

On one hand, one could argue that this is not as strong an argument

when applied to vaccines. As a general matter, for the vast majority of

children—absent very specific medical issues—the risks of vaccinating

are lower than the risks of not vaccinating, and the appropriate decision

is to vaccinate. If rates of vaccination are high enough to offer herd

immunity, that may not be true: a child may be able to hide in the herd

and have very low chances of getting a disease even if unvaccinated, so

the benefits become slight.

219

The problem is that this argument only

holds up if only a small number of families do not vaccinate, since, as the

number of unvaccinated children increases, the protection of herd

immunity is undermined. Additionally, limiting exemptions to this extent

may generate resistance, or may cause parents with very strong

opposition to vaccines to lie, or act in other harmful ways.

Are the courts likely to abolish religious exemptions without

legislative instructions? Parental rights do get substantial legal protection

in our system. For example, courts have, in the past, upheld parental

rights to remove children from mandatory schooling at a certain age, as

previously discussed.

220

In one case, the Arizona Court of Appeals

allowed a mother to exempt a nine-month-old from immunization on

religious grounds even after the mother was found unfit to have custody

217

. Robert H. Mnookin & D. Kelly Weisberg, Child, Family, and State: Problems and

Materials on Children and the Law

131 (6th ed. 2009).

218

. See

Pierce v. Society of Sisters, 268 U.S. 510, 534–35 (1925); Meyer v. Nebraska, 262 U.S. 390,

399 (1923).

219

. Diekema,

supra

note 13, at 92–93; Susan van den Hof et al.,

Measles Epidemic in the

Netherlands, 1999–2000

, 186 J. Infectious Diseases 1483, 1483–86 (2002).

220

. Wisconsin v. Yoder, 406 U.S. 205, 207 (1972).

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of the infant, upholding the balance the legislature set between parental

rights and the child’s, and the public health (over a powerful dissent).

221

In the only case in which a court found that a parent’s failure to vaccinate

a child constituted medical neglect—In re

Christine M.

222

—the context,

during a measles outbreak, was unique. Further, the court declined to

order that the child be vaccinated because by the time the case arrived

before it, the outbreak had ended.

223

In other words, the court required

the danger to be very immediate to order vaccination.

That would be a difficult case to make today: thanks to the success

of our vaccination programs, many of the diseases are rare, so the

chances of contracting them are low and the harm may not seem

immediate.

224

While all of the diseases we vaccinate against can kill, some

kill only rarely (like chicken pox). This reality is part of the reason the

Diana H. v. Rubin

court declined to order the immunization of the child

over the objection of the mother, even though the mother was found

unfit. The court held that there was no evidence that leaving the child

unimmunized was an “imminent” danger to her health.

225

Similarly, while Novak suggests that some religious exemptions may

violate equal protection, that position has not been upheld so far. Even

Novak acknowledges that, at least, form exemptions would not fail the

Lemon

test.

226

An argument can be made, under the

Lemon

test, that a

religious exemption has no secular purpose. But there is at least one such

purpose: allowing children to attend schools even if their parents object

to immunizations. It is possible, but unlikely, that courts will strike down

religious and philosophical exemptions and only leave medical

exemptions.

227

The legislature, however, may do so, but the question is whether

legislatures will. Legislators may hesitate to step on parental rights or to

infringe on religious freedoms, whether from a mistaken belief that such

interference would be unconstitutional or from a genuine respect for

such beliefs. And they may fear the political battle that abolishing

exemptions would inevitably cause. But even legislators sympathetic to

the rights of religious minorities may reconsider if the exemption is

broadly abused—especially if the number of outbreaks increases.

221

. Diana H. v. Rubin, 171 P.3d 200, 205–206 (Ariz. Ct. App. 2007).

But cf.

Dep’t of Human

Servs. v. S.M., 300 P.3d 1254, 1261–62 (Or. Ct. App. 2013).

222

In re

Christine M., 595 N.Y.S.2d 606, 617–19 (N.Y. Fam. Ct. 1992).

223

. Id.

at 618.

224

Ctrs. for Disease Control & Prevention,

Notifiable Diseases and Mortality Tables

62 Morbidity & Mortality Wkly. Rep. ND-719, ND-719 tbl.1 (Jan. 3, 2014).

225

Diana H.

, 171 P.3d at 208.

226

. Novak,

supra

note 57, at 1115.

227

. It was done in Mississippi, but that was over thirty years ago. Brown v. Stone, 378 So.2d 218,

221–23 (Miss. 1979)

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C. Personal Belief Exemption Only

Another alternative is to remove the religious exemption and only

have a “personal choice” exemption. At least seventeen states currently

offer a philosophical exemption or a personal belief exemption.

228

The

terminology, however, is troubling. “Philosophical” seems wrong, and

while there is an element of belief in choosing not to get a vaccine—

usually belief in misinformation or conspiracy theories—personal belief

seems to suggest something quasi-religious. The language, instead,

should focus on the fact that it is a “personal choice” exemption. A

personal choice exemption has the benefit of allowing the state to admit

that some of its citizens are opting out of the immunization requirement

for whatever reason they choose, be it based on religion, fear, or not

wanting to be bothered to take the child to the doctor’s office. In other

words, people do not have to lie about their reasons: they do not have to

give such reasons.

One concern when a state adopts a personal choice exemption is

that people will use the exemption for convenience only.

229

Getting a

child vaccinated requires some effort—at the very least, the patient needs

to go to a doctor’s office, potentially causing the parent to miss work or

at least spend time that could be used elsewhere. And watching a child

injected with a vaccine—something most children do not appreciate—is

not fun. In some jurisdictions, all a personal belief exemption requires is

a signature on a form or letter explaining the objection—much easier

than going to a doctor.

230

A similar concern is that parents will decide not

to vaccinate due to concerns raised by friends or because it is the norm in

their social circle,

231

without giving the matter sufficient thought or

considering the risks. At least one commentator pointed out that the

choice not to vaccinate should require at least as much effort as the

choice to vaccinate to avoid such problems.

232

There are good reasons to prefer a personal choice exemption to a

religious one, and possibly even over the provision of only a medical

exemption. Some people sincerely see vaccines as toxic.

233

Faced with a

228

. Lu,

supra

note 45, at 886.

229

. Silverman,

supra

note 80, at 285; Calandrillo,

supra

note 7, at 360.

230

. Calandrillo,

supra

note 7, at 357.

See, e.g.

, Ariz. Rev. Stat. Ann. § 15-873 (2014) (West); Me.

Rev. Stat. tit. 20-A, § 6355 (2014).

231

. For research highlighting the importance of social networks on the decision to vaccinate, see

generally Emily K. Brunson,

The Impact of Social Networks on Parents’ Vaccination Decisions

131 Pediatrics 1397 (2013).

232

. Silverman,

supra

note 80, at 294.

233

Christina England,

This Study Reveals Children Are Being Vaccinated With Toxic Levels of

Aluminum Causing Neurological Damage and Autism

, VacTruth (Jan. 28, 2014),

http://vactruth.com/2014/01/28/toxic-levels-of-aluminum; Dan Olmsted & Mark Blaxill,

The Age of

Polio: How an Old Virus and New Toxins Triggered a Man-Made Epidemic—Part 1, The Wrong

Narrative

, Age of Autism (Sep. 19, 2011, 5:45 AM), http://www.ageofautism.com/2011/09/the-age-of-

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medical exemption alone, people who hold such beliefs may face the

choice between homeschooling, falsifying medical documents, lying in

some other way, or vaccinating their children with what they believe are

toxins. It seems problematic to adopt a policy that may encourage people

to lie, in terms of falsifying records. The counter to this, of course, is that

altering the law to fit irrational beliefs, unsupported by the evidence is

also problematic. However, forcing people to do something that they

think will poison their children—however irrationally—is almost bound

to be counterproductive and lead to other problems.

In addition, coercion can generate resistance.

234

A system of school

immunization requirements with no safety valve can be politically

unappealing, difficult to put into effect, and vulnerable to political

attack—even among those who are not anti-vaccine. Having a way to opt

out of the requirement could help mitigate that resistance—yes, it is still

an obligation, but those who truly do not want to comply have choices.

Finally, homeschooling may present its own challenges.

Homeschooling means a child’s education is dependent on the parent’s

ability to educate that child. This may have a disproportionate negative

effect on children whose parents are not as well suited to the task. The

fact that a parent chose not to protect the child against preventable

diseases is not a good reason to deprive that child of state-sponsored

public education. Allowing an exemption, even one that is difficult to

obtain, still respects parental autonomy: parents have the choice to

exempt their children from vaccines, even if they have to meet certain

criteria to do so.

The risk, of course, is that allowing parents to request an exemption

for any reason could increase the rates of exemptions (which have been

rising)

235

and lead to more outbreaks. Some parents may take the

exemption because of anti-vaccine views, others because of convenience,

as discussed. If the process of getting an exemption is easier than

immunization, we might have a problem.

236

Legislatures in several states have proposed laws that would make

personal choice exemptions more difficult to obtain while still leaving

them intact. Ross Silverman, for example, proposed what he refers to as

“informed refusal.”

237

Silverman’s proposal was enacted into law by

polio-how-an-old-virus-and-new-toxins-triggered-a-man-made-epidemic.html; Jake Crosby,

Discovering I Was Toxic

, Age of Autism (Jan. 14, 2009, 5:45 AM),

http://www.ageofautism.com/2009/01/discovering-i-was-toxic.html.

234

. Frank P. Grad, Pub. Health Law Manual 72–73 (2005).

See generally

Jason L. Schwartz,

Commentary,

Unintended Consequences: The Primacy of Public Trust in Vaccination

, 107 Mich. L.

Rev. First Impressions 100 (2009).

235

. Blank et al.,

supra

note 32, at 1282–90.

236

. Silverman,

supra

note 80, at 293.

237

Id.

at 285.

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several states, including Washington,

238

California,

239

and Oregon.

240

“Informed refusal” requires that, “[p]rior to receiving an exemption,

applicants [ ] meet with a health professional . . . to discuss the relative

risks and benefits of immunization and exemption. This interaction

would need to be memorialized on a standardized form.”

241

Again, the requirement in states that have adopted Silverman’s

proposal is pretty minimal. All they require is a signature by a health

provider confirming that the exemptor had the benefits and risks of

vaccines explained to her (in Washington, the exemptor can instead

watch a video). And still, the anti-vaccine organizations fought these

statutes tooth and nail.

242

Offit suggested a somewhat more intense educational

requirement—”attending educational classes that teach the public what

the safety profiles of different vaccines are, before they are allowed to

opt out of vaccination.”

243

A somewhat rigorous educational requirement

seems appropriate, potentially with a short quiz at the end. Such quizzes

are used for verifying informed consent in some clinical trials, and may

be useful here to assure internalization of the facts.

In both cases, the hope is that some kind of informed consent

requirement would eliminate exemptions of convenience and ensure that

parents have complete information about the risk they would be taking

before choosing not to vaccinate a child.

Silverman also suggests that the exemption should be renewed—

maybe not annually, but occasionally.

244

An annual requirement is not

unheard of, though it is not common: Arkansas requires parents using a

religious exemption to go through the application process annually.

Arkansas’ process requires a notarized statement requesting the

religious/philosophical exemption; completion of an educational

component; an informed consent that includes a signed statement of

refusal to vaccinate; and a signed statement of understanding that the

department may remove the child from school during outbreaks.

245

Making the exemption process demanding will involve a political

battle; but then, so would eliminating all but non-medical exemptions.

For this reason, it seems to me the best option.

238

. Wash. Rev. Code Ann. §§ 28A.210.080–210.090 (West 2014).

239

. Cal. Health & Safety Code § 120325

et seq.

(West 2014).

240

. Or. Rev. Stat. § 433.267 (2014).

241

Silverman,

supra

note 80, at 285.

242

. As mentioned previously, Governor Jerry Brown, from California, instructed the California

Health Department to add an exemption for religious reasons.

See

Reiss,

supra

note 46.

243

. Priya Shetty,

Experts Concerned About Vaccination Backlash

, 375 Lancet 970, 971 (2010).

244

. Silverman,

supra

note 80, at 294.

245

. Ark. Code Ann. § 6-60-504(b) (2014).

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Conclusion

In 2008, after many years of low numbers of measles infections, the

United States saw 140 cases of measles.

246

Of the 131 cases reported

through July, ninety-one percent of the victims were unvaccinated or had

an unknown vaccination status.

247

In 2011, the United States saw 222

cases of measles. Eighty-six percent of those sick were unvaccinated or

had an unknown vaccination status.

248

Between January 1 and August 24,

2013, the United States saw 159 cases of measles: eighty-two percent of

those infected were unvaccinated or of unknown vaccination status.

249

This is in spite of the fact that MMR coverage stands at over ninety-four

percent.

250

While a far cry from the many cases a year pre-vaccine,

251

it is

a change, and not for the better.

As immunization rates drop, diseases may come back. Measles is an

extremely contagious disease—it comes back among the first, and targets

first and foremost the unvaccinated. Whooping cough has also made a

reappearance. While its return is, at least in part, because of a vaccine

that is less effective than scientists expected, outbreaks of whooping

cough are more prevalent in communities with low vaccination rates.

252

HiB outbreaks were also seen, again, primarily in the unvaccinated.

253

As outbreaks reappear, states may seek to increase vaccination

rates. School immunization mandates are an extremely effective tool to

achieve that goal,

254

and it is natural for states to reconsider their

exemption policies if they lead to outbreaks. This may explain a recent

study that examined legislative bills related to vaccine exemptions

proposed by states between 2009 and 2012. The study found that while

most bills (thirty-one out of thirty-six) aimed to expand exemptions and

only five aimed to restrict them, none of the bills proposing to expand

exemptions passed, while three out of five proposing restrictions were

enacted into law.

255

This suggests that states may already be moving in

246

Ctrs. for Disease Control & Prevention,

Measles—United States, January 1–August 24, 2013

62 Morbidity & Mortality Wkly. Rep. 741, 741 (2013) [hereinafter

Measles, January 1–August 24].

247

Ctrs. for Disease Control & Prevention,

Update: Measles—United States, January–July

2008

, 57 Morbidity & Mortality Wkly. Rep. 893, 893 (2008).

248

CDC,

Measles 2011

supra

note 97.

249

. Measles, January 1–August 24

supra

note 246.

250

Ctrs. for Disease Control & Prevention,

Vaccination Coverage Among Children in

Kindergarten—United States, 2011–12 School Year

, 61 Morbidity & Mortality Wkly. Rep. 647,

647

(2012).

251

See generally

Roush & Murphy,

supra

note 8.

252

. Blank et al.,

supra

note 32, at 1282.

See generally

Lara K. Misegades et al.,

Association of

Childhood Pertussis with Receipt of 5 doses of Pertussis Vaccine by Time Since Last Vaccine Dose,

California, 2010

, 308 JAMA 2126 (2012); Omer et al.,

Geographic Clustering

supra

note 31, at 1389–96.

253

. Offit, Deadly Choices,

supra

note 11, at xi–xii.

254

. Orenstein & Hinman,

supra

note 14, at s23.

255

. Omer et al.,

Legislative Challenges

supra

note 37, at 621.

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the direction of limiting the ability of parents to opt out of vaccinating

their children.

The religious exemption, as it currently stands, is easily and often

abused. It does not sufficiently protect children against their parents’

decision not to vaccinate them, and it does not sufficiently protect

communities against outbreaks. Reconsidering its existence is an

appropriate step for states seeking to improve immunization rates to

take. Replacing it with an appropriately narrow personal choice

exemption is one option; leaving only medical exemptions is another,

though it is more problematic.

Abolishing the religious exemption will not be easy. It will involve a

political battle. But leaving things as they are carries substantial risks.

Many states, seeing an increase in preventable diseases, with their

attendant suffering, harms, deaths, and costs, may wish to take that step.

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Appendix A: Screenshots of Facebook Comments

Figure 1

Figure 2

Figure 3

Figure 4

Figure 5

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Figure 6

Figure 7

Figure 8

Figure 9

Figure 10

Figure 11

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August 2014]

EXEMPTIONS FROM IMMUNIZATION

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Figure 12

Figure 13

Figure 14

Figure 15

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HASTINGS LAW JOURNAL

[Vol. 65:1551

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