The question of the effectiveness or possible harm of compulsory vaccinations is of course a hot topic in Australia as it is in other parts of the developed world. My own view is that the evidence for the effectiveness and general safety of most standard childhood vaccinations is overwhelming. But how should the law respond when a parent claims that for religious reasons they do not want to vaccinate their children?

This was the issue that was considered recently in a decision of the Second Circuit of the US Court of Appeals in Phillips v City of New York (DN 14-2156-cv, 7 Jan 2015). NY state law requires all children attending public schools to produce evidence of vaccinations, with two exceptions: where there is a clear medical reason that vaccination should not take place, or where the parents can show a genuine religious objection. But another part of the law specifies that where there is an outbreak of a disease against which vaccination is effective, students who are unvaccinated because of such exemptions being granted, may be temporarily excluded from the school.

In this case two of the plaintiffs had been granted a religious exemption, but complained that their children had been excluded from school during a chicken-pox outbreak. The other plaintiff had had her claim for a religious exemption denied, because she could not cite any doctrines of her church (the Roman Catholic Church) that related to the question of vaccinations. The complaints alleged a breach of the freedom of religious exercise right granted by the First Amendment to the US Constitution.

The facts illustrate a common feature of religious freedom cases, that many involve a clash between religious freedom of the plaintiff and some other right of someone else. Here NY officials claimed that the right to be free from infectious diseases (a specific example of what one might call a general right to be free from unnecessary bodily harm) clashed with the right of parents to exercise religious freedom. The Court, correctly in my view, held that the First Amendment rights of the plaintiffs had to give way in this case to public health considerations. While there was no US Supreme Court decision directly on point on the First Amendment issues, the Court cited dicta from a 1944 decision which was highly persuasive:

a 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.” Prince v. Massachusetts, 321 U.S. 158, 166–67 (1944).

In addition, the general approach of the US Courts to religious freedom issues in recent years is to read the right very narrowly, so that if there is a “neutral” (i.e. not clearly anti-religious) reason for a law, it will not breach the First Amendment, following the decision in Employment Division v Smith 494 US 872 (1990). (Without going into detail at the moment, I should say that I disagree with this general approach, which seems to read religious freedom far too narrowly. But that will have to be the topic of a future post.) But even if a more generous approach were adopted, such as has been taken in the US Federal sphere in the Religious Freedom Restoration Act (RFRA) 1993,[1] where restrictions on religious freedom have to have a compelling policy justification and be narrowly drawn, it seems to me that this law on vaccination is perfectly sensible. There are clear and scientifically proven detrimental health effects to others from the spread of disease from those who are not vaccinated (and indeed compelling reasons in the interests of children themselves to do as much as possible to encourage parents to vaccinate.) Even if there are religious reasons not to do so, the potential harm caused by the failure outweighs the harm caused to religious sensibilities.

Indeed, one may go further. While it is true that some who oppose vaccinations on general principles are religious believers, many are not. And even among those who are religious, it is arguable that hardly any of the reasons offered for not vaccinating are drawn from religious reasons. The decision records that the plaintiff who was denied a religious exemption, while she claimed she did so as a Roman Catholic,

testified that she did not know of any tenets of Catholicism that prohibited vaccinations.

In other words, while it was not doubted that she had genuine health concerns for her child, those concerns were not really based on religious beliefs. It may be that others can be offered, and I would not want to deny that some objections to vaccination might be based on genuine religious beliefs. But I think the approach of the court here was correct, to test the claim of a religious belief on the topic by asking the plaintiff to spell out her reasons, and where none of the effective beliefs related to her religious world-view, to not accept that they were religiously motivated.

Religious freedom is a fundamental human right which is protected by international human rights instruments and a long common law tradition. But like all other rights, it occasionally has to give way in the wider public interest, and while accepting that the parents concerned had genuine beliefs, the decision of the Court here seems sensible. It will be interesting to see if the matter is taken up the US Supreme Court, as some of the press reports indicate the plaintiffs plan to appeal.

[1] 42 USC ss 2000bb to 2000b-4.