COVID-19, Childhood Vaccines, and Religious Freedom:
A Looming Issue
Charles J. Russo & Paul T. Babie
Amid efforts to reduce, if not eliminate, the spread of COVID-19, researchers are working on a vaccine to prevent future infections1See, e.g., Beth Burger & Max Filby, Ohio Institutions Among Those Working Hard to Create Vaccine and Treatments for Coronavirus, The Columbus Dispatch (Apr. 23, 2020), https://www.dispatch.com/news/20200423/ohio-institutions-among-those-working-hard-to-create-vaccine-and-treatments-for-coronavirus. At the same time, given the fears of some parents that states are overriding their rights to opt out of having their children vaccinated, a looming COVID vaccination issue between the competing interests of public health and parental religious freedom to direct the upbringing of their young could soon be played out.2 SeeKelsey Schlotthauer, The World Awaits a COVID-19 Vaccine, But Parents Shouldn’t Wait on Children’s Routine Vaccination Visits, CDC Warns, Tulsa World (May 23, 2020), https://www.tulsaworld.com/news/local/the-world-awaits-a-covid-19-vaccine-but-parents-shouldnt-wait-on-childrens-routine-vaccination/article_1afe989e-09e1-5bde-b704-97d9b9bbb44b.html. We briefly reflect on how these potentially conflicting rights can best be balanced for the common good, drawing on both the American and Australian experience.
Now widely, but not universally, accepted, the United States Supreme Court initially entered the fray over vaccines more than a century ago, upholding mandatory inoculations for adults to protect the public welfare.3 Jacobson v. Commonwealth of Mass., 197 U.S. 11 (1905). The Justices later rejected a challenge to a Texas law requiring vaccinations for school children.4 Zucht v. King, 260 U.S. 174 (1922). The potential for a COVID-19 vaccination,5 See Jason Shafrin, 7 in 10 Americans Would be Likely to Get a Coronavirus Vaccine, Healthcare Economist (June 4, 2020), https://www.healthcare-economist.com/2020/06/04/7-in-10-americans-would-be-likely-to-get-a-coronavirus-vaccine/. coupled with the anti-vaccination movement,6 See, e.g., Todd Ackerman, Texas Anti-Vaxxers Say COVID-19 Contact Tracing is Government Surveillance, Houston Chronicle (June 5, 2020), https://www.houstonchronicle.com/news/houston-texas/texas/article/anti-vaxxer-group-coronavirus-contract-tracing-15317019.php; Kristin Lunz Trujillo & Matt Motta, Data Point: 23 Percent Say They Won’t Get a COVID-19 Vaccine: ‘Anti-vaxxer’ Sentiment Could Jeopardize Efforts to Build Immunity, Boston Globe (May 7, 2020), https://www.bostonglobe.com/2020/05/07/opinion/23-percent-say-they-wont-get-covid-19-vaccine/. But see Dani Fitzgerald, To Vax or Not to Vax: Pitt Scientist Discusses Importance of Vaccines, Ellwood City Ledger (May 29, 2020), https://www.ellwoodcityledger.com/news/20200529/to-vax-or-not-to-vax-pitt-scientist-discusses-importance-of-vaccines. increases the tension between public health and religious freedom. In the United States, for instance, “45 states and Washington D.C. . . . grant religious exemptions for people who have religious objections to immunizations.”7 States With Religious and Philosophical Exemptions From School Immunization Requirements, National Conference of State Legislatures (Jan. 3, 2020), https://www.ncsl.org/research/health/school-immunization-exemption-state-laws.aspx;see also Coronavirus and Maine Vote Make Case for Massachusetts Vaccine Law, Boston Globe (Mar. 5, 2020) https://www.bostonglobe.com/2020/03/05/opinion/coronavirus-maine-vote-make-case-mass-vaccine-law/ (calling for an action similar Maine’s, where voters rejected a proposal to repeal all non-medical exemptions, including those based on religion, because the number of parents seeking religious exemptions in Massachusetts is on the rise with some school systems reporting exemption rates as high as 20 to 25 percent). Another “15 states allow philosophical exemptions for those who object to immunizations because of personal, moral or other beliefs.”8 Id. States With Religious and Philosophical Exemptions From School Immunization Requirements, National Conference of State Legislatures (Jan. 3, 2020)./8 Moreover, American parents have had some success in litigation over religious exemptions for their children.9 For cases rejecting parental requests, seeW.B. ex rel. Baker v. Crossroads Acad. Cent. St., No. 4:19-CV-00682-HFS, 2020 WL 206718 (W.D. Mo. Jan. 10, 2020); Caviezel v. Great Neck Pub. Sch., 710 F. Supp.2d 414 (E.D.N.Y. 2010), aff’d 500 Fed.Appx. 16 (2d Cir. 2012), cert. denied, 569 U.S. 947 (2013); Phillips v. City of N.Y., 775 F.3d 538 (2d Cir. 2015), cert. denied, 136 S. Ct. 104 (2015). For cases upholding parental requests,see, Jones ex rel. v. State, Dep’t of Health, 18 P.3d 1189 (Wyo. 2001); Hadley v. Rush Henrietta Cent. Sch. Dist., 409 F. Supp. 2d 164 (W.D.N.Y. 2006).
In Australia, prior to January 1, 2016, a parent could claim a religious conscientious objection to vaccinations for children.10 Conscientious objections were available pursuant to the Family Assistance (Exemption from Immunisation Requirements) (FaHCSIA) Determination 2012 (Cth) s 5 (Austl.), pursuant to A New Tax System (Family Assistance) Act 1999 (Cth) s 7(1) (Austl.), repealed by Family Assistance (Meeting the Immunisation Requirements) Principles 2015 (Cth) (Austl.). The only religious exemptions remaining available in Australian law are those for medical professionals. SeeCrimes Act 1958 (Vic) (Austl.); see alsoAustralian Human Rights Commission, Submission to the Attorney-General’s Department on Draft Religious Freedom Bills (2019), https://humanrights.gov.au/our-work/legal/submission/religious-freedom-bills. However, on December 31, 2015, the federal government removed this option, with the result that today “only families who fully immunise their children, are on a recognised immunisation catch up schedule or have an approved medical exemption can receive family assistance payments linked to immunisation status such as childcare assistance and Family Tax Benefit Part A Supplement.” Prior to the adoption of this “no jab, no pay” policy, less than 2% of all Australian children were exempted based on parental religious conscientious objections.11 AIR – State and Territory Vaccine Objection (Conscientious Objection) Data (2017), https://www.health.gov.au/sites/default/files/data-state-territory-vaccine-objection-data-2012-2015.pdf. Still, the data can confirm that individuals remain who object to vaccinations on religious grounds, no matter the demonstrated public health benefit.
Vaccinations, whether in Australia or the U.S., are typically administered in a series to young children. Public health authorities thus suggest that children undergo inoculations before they reach the age of two in the U.S. and four in Australia in order to combat diseases like diphtheria–pertussis (whooping cough), tetanus, measles–mumps–rubella, polio, hepatitis B, influenza, and the chicken pox (varicella).12 James G. Hodge & Lawrence O. Gostin, School Vaccination Requirements: Historical, Social, and Legal Perspectives, 90 Ky L. J. 831 (2002) For national data, see National Center for Health Statistics: Immunization, Centers for Disease Control and Prevention, https://www.cdc.gov/nchs/fastats/immunize.htm (last reviewed Mar. 17, 2017); Vax View, Centers for Disease Control and Prevention, https://www.cdc.gov/vaccines/vaxview/index.html (last reviewed Oct. 6, 2016); Immunisation for Children, Australian Government Department of Health, https://www.health.gov.au/health-topics/immunisation/ immunisation-throughout-life/immunisation-for-children. Yet, almost a century after the Supreme Court first upheld mandatory student vaccinations as a condition of attending K–12 schools in the U.S.,13 Supra note 4. But see Brooke Crum, Drop in Waco, McLennan County Childhood Vaccination Brings New Concern as COVID-19 Threat Remains, Waco Tribune-Herald (June 6, 2020), https://www.wacotrib.com/news/local/drop-in-local-childhood-vaccination-brings-new-concern-as-covid-19-threat-remains/article_ca404b81-ce12-590c-94f9-a8e9fab6b118.html. legal controversies continue over religious objections even though no major religious denominations forbid their use.14 For earlier commentary on vaccinations, see, e.g.,Anthony Ciolli, Religious & Philosophical Exemptions to Mandatory School Vaccinations: Who Should Bear the Costs to Society? 74 Mo. L. Rev. 287 (2009); Hope Lu, Note, Giving Families Their Best Shot: A Law-Medicine Perspective on the Right to Religious Exemptions from Mandatory Vaccination, 63 Case W. Reserve L. Rev. 869 (2013); Marie Killmond, Why Is Vaccination Different?: A Comparative Analysis of Religious Exemptions, 117 Colum. L. Rev. 913 (2017).
Vaccine-related litigation typically concerns parental requests for exemptions from mandatory inoculation requirements due to their religious beliefs, which is in opposition to a vaccine’s prophylactic use to prevent the spread of infectious diseases. Such litigation is likely to occur once a vaccination is available to fight COVID-19. A very limited number of cases involve parental challenges that seek philosophical exemptions based on personal beliefs.15 For a case on the boundary of religion and philosophical beliefs, see Turner v. Liverpool Cent. Sch., 186 F.Supp.2d 187 (N.D.N.Y. 2002) (while educators questioned whether a mother’s sincerely held religious beliefs were based on a personal philosophy rather than a legitimate religion, the court was satisfied that she established the likelihood of success on the merits of her claim because her views appeared to be religious rather than merely philosophical).
When discussing schooling, it is important to recognize that “[t]he child is not the mere creature of the state; those who nurture him and direct his destiny have the right, coupled with the high duty, to recognize and prepare him for additional obligations,”16Pierce v. Society of Sisters of the Holy Name of Jesus and Mary, 268 U.S. 510, 535 (1925). See Elizabeth S. Scott & Clare Huntington, Conceptualizing Legal Childhood in the Twenty-First Century, Mich. L. Rev., forthcoming; Columbia Public Law Research Paper No. 14-633 (2019) <https://scholarship.law.columbia.edu/faculty_scholarship/2536>. though this is a perspective with which some modern critics disagree.17 See, e.g., Elizabeth Bartholet, Homeschooling: Parent Rights Absolutism vs. Child Rights to Education & Protection, 62 Ariz. L. Rev. 1, 3 (2020) (criticizing homeschooling families based on her undocumented fear that the children will be unable to contribute to a democratic society due to the “serious risk for ongoing abuse and neglect” they face. Bartholet later expanded her criticisms. See Erin O’Donnell, The Risks of Homeschooling, harvard Magazine (May-June 2020), https://www.harvardmagazine.com/2020/05/right-now-risks-homeschooling (standing Pierce, on its head, arguing that “[t]he issue is, do we think that parents should have 24/7, essentially authoritarian control over their children from ages zero to 18? I think that’s dangerous . . . . “I think it’s always dangerous to put powerful people in charge of the powerless, and to give the powerful ones total authority.)” Critical reaction was swift. See, e.g., M. McShane, Harvard’s Lazy Attack on Homeschooling, Forbes (Apr. 21, 2020), https://www.forbes.com/ sites/mikemcshane/2020/04/21/harvards-lazy-attack-on-homeschooling/#5ad63b2c2473; Corey DeAngelis, Harvard’s War on Homeschooling Continues, Washington Examiner (May 28, 2020), https://www.washingtonexaminer.com/opinion/harvards-war-on-homeschooling-continues. While there is limited judicial analysis of free exercise protection in the Australian Constitution,18 Pursuant to s 116, which provides “The Commonwealth shall not make any law for establishing any religion, or for imposing any religious observance, or for prohibiting the free exercise of any religion, and no religious test shall be required as a qualification for any office or public trust under the Commonwealth.” either generally in educational settings19 With the exception of the High Court decisions in Attorney-General (Vic); Ex Rel Black v Commonwealth (“DOGS case”) (1981) 146 CLR 559 (Austl.) and Williams v Commonwealth (No 2) (“School Chaplains case”) (2014) 252 CLR 416 (Austl.). or specifically to the “no jab, no pay” policy of the federal government, significant American jurisprudence assesses the applicability of the First Amendment guarantee in both settings. Thus, the American experience is instructive for those considering these issues in Australia. In Wisconsin v. Yoder,20 406 U.S. 205 (1972). for instance, the U.S. Supreme Court extended the rights of parents to raise their children in accord with their own religious beliefs.
In Yoder, parents who were Amish challenged Wisconsin’s compulsory attendance law because they wanted their children to be excused from formal public education beyond eighth grade. Instead, the parents sought to have their children educated in their home communities due to the potential impact that sending them to school would have had on their then almost 300-year old way of life. While reiterating that states could enact reasonable regulations over basic education, in balancing the competing interests, the Supreme Court afforded greater weight to the First Amendment right to religious freedom and the concerns of parents with respect to the upbringing of their children. The Justices ruled that insofar as the Amish way of life and religion were inseparable, ordering the children to attend public high schools may have destroyed both their and their family’s religious beliefs.
Following Yoder, few religious parents can meet the test for excusing their children from compulsory education requirements. In fact, courts consistently deny religion-based applications for exemptions to substantial or material parts of compulsory education requirements, such as sexuality education.21 For cases rejecting parental challenges to the inclusion of sexual material in public school curricula, see, e.g., Brown v. Hot, Sexy, and Safer Productions, 68 F.3d 525 (1st Cir.1995), cert. denied, 516 U.S. 1159 (1996); Fields v. Palmdale Sch. Dist., 427 F.3d 1197 (9th Cir. 2005), opinion amended on denial of reh’g, 447 F.3d 1187 (9th Cir. 2006), cert. denied, 549 U.S. 1089 (2006); C.N. v. Ridgewood Bd. of Educ., 430 F.3d 159 (3d Cir. 2005); Parker v. Hurley, 514 F.3d 87 (1st Cir. 2008), cert. denied, 515 U.S. 815 (2008). For a commentary on this issue, see Charles J. Russo & William E. Thro, Reflections on the Law and Curricular Values in American Schools, 87 Peabody J. of Educ. 402 (2012). The question that remains, though, regards where an acceptable boundary can be drawn when conflicts arise between educators and parents over vaccinations given that the Supreme Court has generally held that the right of parents to raise their children in accord with their personal and religious beliefs must yield when the health of children is at risk or when there is a recognized threat to public safety.”22 Caviezel, supranote 9, 701. F. Supp.2d 428.
Tensions over public safety thus emerge between educational and/or state officials and parents opposed to vaccinations. This is because vaccinations help to protect the common good, especially with a disease such as COVID-19. At this time, it is not readily apparent how easily this virus might be transmitted, which arguably weakens the claims of parents who are opposed to having their children inoculated. Accordingly, it is important to remember that “[w]hile freedom to believe is absolute, freedom to exercise one’s belief is not and must be considered in light of the general public welfare.”23 State v. Perricone, 181 A.2d 751 (N.J. 1962) (affirming an order of parental neglect for refusing to obtain a blood transfusion for a child).
Bearing in mind potential conflicts over a vaccination for COVID-19, there is need for a careful balancing of the competing individual interests in free exercise with the countervailing community interest in ensuring public health. This balancing matters because while individuals might claim governmental violations of fundamental rights, such as free exercise, not every such incursion is invalid. Rather, some restrictions, indeed, perhaps many, can be justifiable when pursued for legitimate governmental objectives taken in the public interest. Such “limitation and derogation standards” are in both international human rights instruments, such as the International Covenant on Civil and Political Rights, and in domestic documents, like the American and Australian Constitutions.
In 1985, the American Association for the International Commission of Jurists adopted the Siracusa Principles for use in applying international limitation and derogation principles, “seeking to identify: (a) their legitimate objectives; (b) the general principles of interpretation which govern their imposition and application; and (c) some of the main features of the grounds for limitation or derogation.” The identification of approaches to limitations provisions apply equally to domestic constitutional texts. Thus, the well-known footnote 4 of United States v. Carolene Products Company24 304 U.S. 144, 152 (1938). identified the three levels of review in assessing constitutional rights: rational basis, intermediate, and strict scrutiny. While each level of judicial review involves some form of balancing community and individual interests, the third, strict scrutiny, requires public officials to demonstrate that the restrictions they are imposing are as “narrowly tailored” as possible to achieve their ends by “least restrictive means” means possible.25 See, e.g., Johnson v. California, 543 U.S. 499, 505 (2005); Miller v. Johnson, 515 U.S. 900, 920 (1995). A similar approach arguably exists in Australian law in Adelaide Co of Jehovah’s Witnesses Inc v Commonwealth (1943) 67 CLR 116, 131–2 (Latham CJ). See also infra note 32 and accompanying text. This kind of balancing is necessary because without it, individual interests in free exercise can be subverted to the community will.
First Amendment jurisprudence in the U.S. provides guidance as to how the balancing might occur in a COVID-19 context. The primary question addresses the appropriate judicial standard under which courts should evaluate parental requests for religious conscientious exemptions: rational relations or compelling interest.26 Insofar as American courts infrequently apply intermediate scrutiny, this note examines the two commonly used standards. Under equal protection analysis, the general constitutional test for evaluating whether classifications are rationally related to legitimate governmental purposes, there is a rebuttable presumption that criteria adopted via legislative processes are constitutional. As such, it is difficult for plaintiffs to succeed if courts apply this test. See Hazelwood Sch. Dist. v. Kuhlmeier, 484 U.S. 260, 273 (1988). Conversely, when governmental actions allegedly infringe on fundamental rights including those mentioned explicitly in the Federal Constitution, such as freedom of religion or as the Supreme Court identifies, or disadvantage members of groups based on constitutionally “suspect” classifications such as race, the courts apply strict scrutiny, the most stringent form of analysis. Suspect classes are clearly defined groups needing extraordinary protection from the majoritarian political process because they have purposefully been subjected to unequal treatment or are relegated to positions of virtual political powerlessness. Under strict scrutiny analysis, consistent with Sherbert v. Verner, 374 U.S. 398 (1963) (finding that state officials violated the free exercise rights of an employee in denying her request for unemployment benefits after officials fired her for refusing to work on her Sabbath) the burden shifts to the government to demonstrate that classifications are drawn as narrowly as possible, meaning in the least restrictive manner, granting as much deference to religious practice as possible, and are based on compelling state interests. When courts apply strict scrutiny, they typically, but do not always, as in disputes over vaccinations, invalidate state actions. This inquiry, and the related concern about the sincerity of parental beliefs, raises equal protection concerns by creating two categories of parents: those seeking exemptions for their children based on religious beliefs and those who do not do so. Consequently, insofar as mandatory vaccination laws are based on the police power of the state and its rational relationship to the legitimate governmental concern of maintaining public welfare, absent legislative exemptions, there seems to be little basis on which to create separate categories of parents who wish to have their children exempt from facially neutral laws of general applicability.
When parents seek religious exemptions for their children, courts typically inquire into the sincerity of their beliefs rather than their membership in religious institutions. Such judicial inquiry raises an even more serious concern about the propriety of having civil courts evaluate the sincerity, or even value, of parental religious beliefs — a dangerous precedent to be sure.27 See, e.g., Tyler O’Neil, Hey Supreme Court, Government Can’t Decide ‘Which Beliefs Are Acceptable’, PJ Media (June 8, 2020), https://pjmedia.com/columns/tyler-o-neil/2020/06/08/hey-supreme-court-government-cant-decide-which-beliefs-are-acceptable-n501792; see also Charles J. Russo, Of Baby Jesus and the Easter Bunny: Does Christianity Still Have a Place in the Educational Marketplace of Ideas in the United States? 16 Educ. and L. J. 61 (2006) (criticizing Skoros v. City of New York, 437 F.3d 1 (2d Cir. 2006), cert. denied, 549 U.S. 1205 (2007) for allowing officials in public schools in New York City to display menorahs plus stars and crescents in December but not manger scenes based on the judicial belief that the former presented a primarily secular meaning and the latter was predominantly religious). Still, when legislatures enact laws exempting children from inoculations, the perplexing equal protection issues associated with the balancing of rights in light of the potential impact of having children who are not vaccinated attend schools on the public welfare must still be addressed.
American jurisprudence, regardless of whether one agrees with the outcome in any case, provides guidance as to what might assist in balancing the potential interface of free exercise with a COVID-19 vaccination. Yet, because practical matters remain, we offer the following proactive policy suggestions to perhaps avoid litigation.
First, in developing and/or revising policies, public health officials should address the necessity, safety, and timing of vaccinations for school children. In other words, because laws, whether at the state level in the U.S. or the federal level in Australia, typically require the inoculation of children before they reach specified ages, parents and educators may wish to work with professionals in public health agencies to ensure that the young are vaccinated.
Second, educational leaders should involve parent groups and other interested parties and agencies in their communities when developing and updating policies. Including various stakeholders in such dialogue should not only help to garner community support but should also help to ensure compliance with policies.
Third, educational leaders should carefully craft language dealing with religious exemptions. Put another way, while certainly recognizing parental rights to direct the upbringing and education of their children, policy makers must carefully consider the impact that granting even a small number of exemptions might have on the public health and welfare of their communities. Such a concern emerges because granting exemptions may lead to large numbers of people seeking to have their children excused with potentially dire consequences for the common good. Policy language should include information for parents explaining the ramifications of their choices, such as leaving their children susceptible to communicable diseases when they seek to opt out of mandatory vaccination schemes.
Fourth, educational leaders and policy makers should review and revise their vaccination policies periodically. Insofar as inoculations are ordinarily not a controversial topic in most school systems, it is probably sufficient to do so every three to five years rather than annually. Of course, if events like medical advances warrant more frequent review, then educators and their attorneys should prepare appropriately in order to be ready to act when researchers develop a vaccination to fight COVID-19.
But what if the conflict between individual interests in free exercise and community interests in preventing a public health crisis reaches the courts? While it is impossible to say what the outcome might be, an important demonstration of the need for a framework for use in assessing the competing interests presented by COVID-19 arose in Sydney, Australia, on the weekend of June 5-7, 2020. As Black Lives Matter protests in response to the murder of George Floyd raged across the globe, organizers sought an order exempting the event from the COVID-19 police directive prohibiting large public gatherings. The Supreme Court of New South Wales rejected the application, explaining:
A gathering of 5,000 people who are interested in this particular cause, at a time when the entire community is under direction not to gather in groups of more than ten, is an unreasonable proposition. The exercise of the fundamental right of assembly and of expression of political opinion by gathering in numbers is not taken away by the current Public Health Order; it is deferred. The public health threat that has been encountered by our community through the spread of this disease has asked a great deal of many people in many respects throughout the community. A great many people have lost their livelihoods for the time being as a result of the need to conform to these restrictions. Others have been unable to attend funeral services for loved ones. Many forms of public gathering have had to be restricted. The conduct of legal proceedings in open court, a most important aspect of the administration of justice in a free society, has had to be curtailed.28Commissioner of Police v Bassi  NSWSC 710 (Austl.) (Fagan J). An appeal was allowed, on other grounds, twenty minutes before the protest was to begin, rendering it legal. Raul Bassi v Commissioner of Police (NSW)  NSWCA 109 (Austl.) (Bathurst CJ, Bell P, Leeming JA). An application for an exemption order for a second march was denied in Commissioner of Police (NSW) v Supple  NSWSC 727 (Austl.) (Walton J).
When balanced against the public health risk posed by COVID-19, the court limited individual interests in assembly, association, and political communication for justifiable reasons. We may disagree with the outcome. Or we may agree. Either way, the outcome in this case is not what matters. What matters is that there be a framework for balancing to occur. Without it, the competing interests cannot be assessed. ♦
Charles J. Russo is Panzer Chair in Education & Director, Ph.D. Program in Educational Leadership, School of Education and Health Sciences, Research Professor of Law, School of Law, University of Dayton, USA. Russo is also an Adjunct Professor in the Law School of the Sydney campus of Notre Dame University of Australia.
Paul T. Babie is Adelaide Law School Professor of the Theory and Law of Property, Adelaide Law School, The University of Adelaide, Australia.