(Note -- This article originally ran a year ago under the headline "Pray For the Religious Exemption." Now California is just days away from possibly denying it to the state's families.) A couple of recent court cases have me convinced that the religious exemption from childhood immunizations is in big trouble.
The first case is one I somehow missed when it was decided last month. It’s a bit convoluted, but the gist is that three New York parents said their unvaccinated children were denied their rights by being kept out of school because another child had a vaccine-preventable disease. The judge said no.
To tell you the truth, I am not terribly concerned about that. Most parents I know who forego vaccines say that a better solution to disease control is informal quarantine – keep your kid home when they’re sick, or if you don’t want them to catch a disease they’re not vaccinated against.
But the scary part – especially in a state with no philosophical exemption and a nasty habit of trying to make parents prove the sincerity of their religious convictions -- was this comment in the federal judge’s ruling. “The Supreme Court,” he wrote, has “strongly suggested that religious objectors are not constitutionally exempt from vaccinations.”
I couldn’t find a link to the judge’s ruling, but according to the Times, he was pointing to Jacobson v. Massachusetts, which in 1905 (!) found that if Mr. Jacobson wanted to skip being vaccinated during a smallpox epidemic, he had to pay a $5 fine. More broadly, “Jacobson” has been cited as proof that the state’s police powers trump personal choice when it comes to a battle over vaccine mandates.
I don’t see it. He objected, he said, because both he and one of his children had bad reactions to earlier vaccinations. And all he had to do was pay five measly bucks, which even accounting for inflation is not much. How that undercuts religion as a basis for declining vaccination – especially absent a raging, deadly epidemic – is beyond me.
But just as I was digesting this, along came this week’s Hobby Lobby ruling from the Supreme Court itself, which said closely held companies whose owners are opposed to contraception don’t have to pay for insurance coverage. Regardless of what one thinks of that ruling, logic dictates that such firms might now be able to decline to cover other medical interventions to which they have the same objections – to wit, vaccination. To me, that case seems stronger than it does for contraception. After all, a personal religious basis for opting out of vaccination is already established in 48 states, excepting only Mississippi and West Virginia.
Nothing doing. On the contrary, the opinion emphasized, “Our decision should not be understood to hold that an insurance-coverage mandate must necessarily fall if it conflicts with an employer’s religious beliefs. Other coverage requirements, such as immunizations, may be supported by different interests (for example, the need to combat the spread of infectious diseases) and may involve different arguments about the least restrictive means of providing them.”
In her epic dissent, Justice Ginsburg also raised the specter of owners who opposed vaccines on religious grounds, and pointed to the federal court ruling from just a couple of weeks ago. That suggests that while she disagrees with the majority on contraception, she too thinks vaccination is too sacred to subordinate to religious beliefs.
Now, this does sound like a court that could find a way to overturn the religious exemption to childhood vaccination. And if the religious exemption goes, I’m not holding out much hope for the philosophical exemption. I can just hear Justice Scalia railing about some crunchy-granola hippie mother attempting to claim the mantle of Socrates with her so-called “philosophy," and Ginsburg talking about keeping grandkids safe from polio.
Speaking of Scalia, remember the court’s ruling a couple of years ago in Bruesewitz, confining all compensation claims for vaccine injury to the so-called vaccine “court” – ruled by the same federal agency that enforces the vaccine mandates?
Scalia wrote the majority opinion, which fawned all over vaccines as if they were ambrosia rather than a consumer product manufactured by a pretty sketchy crowd (big pharma). Like Ginsburg championing vaccines in the Hobby Lobby case, liberal Justice Breyer concurred in Bruesewitz, falling all over the federal government as the arbiter of all things healthy:
“I would give significant weight to the views of HHS. The law charges HHS with responsibility for overseeing vaccine production and safety. It is ‘likely to have a thorough understanding’ of the complicated and technical subject matter of immunization policy, and it is comparatively more ‘qualified to comprehend the likely impact of state requirements.’ HHS’s position is particularly persuasive here because expert public health organizations support its views and the matter concerns a medical and scientific question of great importance: how best to save the lives of children.”
No matter what their politics, it seems, the best and the brightest agree on one thing – they, not parents, know best how to save the lives of children. That’s how we got into this mess.
I can’t help noting that one of the companies that brought suit along with Hobby Lobby, the Conestoga Wood Specialties Corporation, is owned by Mennonites. I bet they’re not crazy about vaccinations, either. And I can’t help wondering what their autism rate is.
Dan Olmsted is Editor of Age of Autism.