The Authoritative Guide to

Transcription

1 The Authoritative Guide to By Alan G. Phillips, J.D. Attorney and Counselor at Law Copyright May 2013 Version 4.0 No part of this document may be copied, published, or redistributed in any manner, electronically or otherwise, without the express written consent of the author. 1

2 TABLE OF CONTENTS Title Page... 1 Table of Contents... 2 Disclaimer... 4 Foreword... 5 Introduction... 7 Acknowledgements PART I I. Important Background on the Law II. Federal Law Components A. The United States Constitution B. Federal Statutes C. Federal Administrative Law D. Federal Courts and Federal Precedent III. State Law Components A. State Constitutional Law B. State Statutes C. State Administrative Law D. State Courts and State Precedent

3 PART II I. Private Schools and Daycares II. Immigration and Foreign Adoption III. Employees and College Students in Healthcare Curriculums IV. International Travel V. Emergencies: From Local Outbreaks to Pandemics VI. Family Law: Vaccines in Child Custody Disputes and Parental Rights VII. Delayed Vaccine Schedules Are They Legal? VII. Refusal to Vaccinate Forms IX. Do You Need An Attorney? X. Frequently Asked Questions XI. Future Rights XII. Legal Resources for the Non-Attorney XIII. About the Author XIV. Feedback INDEX

4 DISCLAIMER This book is for educational purposes only. It is not intended to provide or substitute for professional legal advice. No attorney-client relationship is intended, implied, or created by the distribution, purchase, reading or other use of this document. The author assumes no liability for the use or misuse of any of the information provided herein. Law is more complex than most people realize. Its proper application can vary widely with the great variety of individual situations and circumstances. True legal advice is, therefore, necessarily beyond the scope of a book. You are advised, as with any important legal matter, to consult a knowledgeable attorney for all of your important legal needs. Reasonable efforts were made to ensure the completeness and accuracy of the information provided as of the time of publication. However, inadvertent errors and omissions may occur, and changes in the law are inevitable. Errors and relevant new information that come to the author s attention will be taken into account with future editions. Finally, the author is licensed to practice law in North Carolina, and has sometimes used examples from North Carolina law for illustrative purposes as a matter of convenience. However, this provides neither a significant advantage to North Carolina readers nor a significant disadvantage to readers in other states. The North Carolina examples demonstrate legal principles that apply to law generally. Viewed in context with the examples from other states, they help provide a comprehensive introductory background to the many different aspects of vaccine legal exemption and waiver rights that apply to residents throughout the United States. 4

5 FOREWORD There are many different components which, taken together, define the content and boundaries of the right to legally refuse vaccines. There are also a number of practical considerations separate and apart from the legal technicalities that must be carefully considered for the most effective exercise of those legal rights. Rights can vary depending on a number of different factors including one s geographic location, variations in individual circumstances, and the current state of our everchanging law. Practical considerations range from knowing what to say (or what not to say) when and to whom to knowing how to deal with overzealous local officials who have at times reportedly refused to discuss available legal exemption options and resisted perfectly valid, legal exemption claims. The truth is, vaccine legal exemptions is an inherently complex topic. This being the case, a prudent approach to exercising a vaccine exemption requires first gathering complete information about both your technical legal rights and the most important practical considerations. Having done that, you can devise an informed strategy for how best to proceed. Absent this information, any attempt to exercise a vaccine exemption is a roll of the dice. You may succeed without incident, as certainly many have. But like others, you may also encounter unexpected problems that unnecessarily complicate the process or even cause the needless loss of your exemption right altogether. Make no mistake many people have unnecessarily been denied an exemption, because of what they didn t know that they didn t know. The question, then, is how to maximize your chances of exercising your exemption rights effectively with a minimum of effort, and in a man- 5

6 ner that minimizes you vulnerability to a future challenge. There is no one size fits all answer to the question of how to avoid vaccines legally. There is, however, a fundamental knowledge base that will enable you to discern fact from fiction about your rights, and to make your own effective, individualized assessment and plan of action. This book was written to provide precisely that knowledge base clearly, concisely, and authoritatively. At its most basic level, then, this book is about self-empowerment. To the best of the author s knowledge, this information has never previously been gathered and presented in one place before. Perhaps its time has come. Read Part I first. It is a prerequisite to many of the chapters in Part II. Once you ve finished Part I, go on to the sections in Part II that interest or concern you most. 6

7 INTRODUCTION There is no shortage of Internet websites and other sources with information about vaccine legal exemptions. Unfortunately, much of it is incomplete, misleading, or just plain wrong. Moreover, since law continually evolves, even information that is initially accurate must be updated from time to time to remain accurate. Add to this reports that healthcare authorities have stepped up efforts to discourage exemptions in response to the growing vaccine awareness movement and corresponding increases in exemption rates in recent years, and it is clear that those of us concerned with vaccine exemption rights must be proactively informed, vigilant, and willing to stand our ground, if we are to keep or expand our present rights. There are three basic vaccine exemptions types: medical, philosophical (often referred to as conscientious or personal exemptions), and religious. Medical exemptions have a number of limitations. For example, they usually require a recommendation from a licensed medical doctor, may apply only after a serious adverse vaccine reaction has already occurred or some other qualifying medical condition exists, may be temporary, may apply only to a specific vaccine believed to have caused an adverse reaction, and in some states may be denied by the state despite being recommended by a qualifying physician. For these reasons, medical exemptions may not be a viable option for most people who wish to avoid vaccines generally and indefinitely. 7

8 In stark contrast, philosophical exemptions are generally easy to exercise, if you re lucky enough to be in a situation where you have that option and don t have to contend with an overzealous local authority dead-set on preventing you from exercising it. To exercise a philosophical exemption, you probably need only read the relevant statutes and administrative regulations and follow their instructions. You should be able to get the necessary information, and forms if your state provides them, from your local or state health department or its website, or your state s website that provides online access to state statutes and regulations. 1 If necessary, you can get this information from a law school library or with the help of a local attorney. (See Legal Resources for the Non-Attorney below). However, keep in mind that even where philosophical exemptions are availa- 1 Unfortunately, all states may not provide free on-line searchable statutes and regulations for the public. ble, a religious exemption may be preferable, for at least three reasons: 1) When a state offers a religious exemption, U.S. Constitutional rights apply that do not apply to philosophical exemptions (see the sections below on the U.S. Constitution and federal legal precedent). Since federal law is a higher legal authority than state law, there are situations where this could be critical, such as when dealing with vaccine custody disputes and some private schools; 2) A philosophical exemption will not carry over to another state that does not offer one, a concern that people who may move across state lines in the future should keep in mind; and 3) Recent years rise in exemption rates has been greater in states offering philosophical exemptions, and since religious exemption laws may be the more politically sensitive target of the two (our country having been founded in large part on religious freedom), philosophical exemptions may be 8

9 the first to go if concerns about rising exemption rates result in changes in the law aimed at lowering exemption rates. This is not to suggest that a religious exemption to immunizations is nothing more than the next in a series of hypothetical options for anyone wishing to avoid vaccines one does have to have a qualifying religious belief. However, the legal definition of religion under the U.S. Constitution is quite broad many people may qualify for a religious exemption whose first assumption is that they don t. So, don t despair if your first thought is that you can t possibly qualify for a religious exemption to immunizations, as it may be that you can and do. Since only about 20 states offer philosophical exemptions, and given the limitations of both medical and philosophical exemptions, a religious exemption may be the best option for most U.S. citizens who wish to legally refuse vaccines generally and indefinitely. However, they are also the most legally complex as well. For these reasons, religious exemptions are the primary focus of this book. 9

10 ACKNOWLEDGEMENTS I offer my deepest gratitude to the many people whose input contributed to the initial development of this book. Those who helped and accepted my invitation to be listed here are: 1. Sherri Tenpenny, D.O., Osteopathic physician and author of FOWL! Bird Flu: It s Not What You Think Manfred Mueller, MA, DHM, RSHom(NA), CCH A homeopath in private practice since From Dr. Mueller ran a referral service called "Homeopathic Physicians Opposed to Vaccines." He has provided consultations for countless families with vaccine injuries and has developed a treatment process based on classical homeopathic principles to reverse and remove adverse effects and injuries from vaccinations and other medical interventions. HOMEOPATHIC ASSOCIATES, P.O. Box 474, Jamul, CA 91935, Phone: (001) , office@homeopathicassociates.com. Homeopathic Consultants, Durham, North Carolina. Certified Classical Homeopath through the Council for Homeopathic Certification and the North American Society for Homeopaths; North Carolina clinical field instructor for Caduceus Institute for Classical Homeopathy. Ms. Insley accepts clients with a wide variety of chronic and acute conditions including vaccine injuries , jjinsley@mindspring.com 4. Karin Schumacher, Attorney at Law, California attorney, founder of Vaccine Information and Awareness 5. Cindy Loveland, former Colorado State Contact for the National Vaccine Information Center (NVIC), (see Updated information on these and other vaccine people and resources is available at the Pandemic Response Project here: 3. Julia J. Insley, BS, LRT, CCH, RSHom(NA) 10

11 PART I I. IMPORTANT BACKGROUND ON THE LAW The American legal system is inherently complex a reflection, no doubt, of the complex society and cultures it mirrors. For example, federal legislators, state legislators, and federal and state administrative agencies enact laws and rules that are codified as statutes and regulations, some-times referred to as the black letter law or code. The code for a particular area of the law is seldom the complete law on any given topic, though, as it can t be designed to explain how it is to be applied to the potentially infinite variety of individual situations that may arise under it. When disputes arise about how to apply code and no agreement is reached, the courts may ultimately decide who is right. It is the job of legislative and administrative bodies to design codes, but it is up to the courts to interpret the laws by way of rulings in actual disputes. LEGAL PRECEDENT North Carolina Statutes Some courts, mostly appellate courts (so named because they rule on cases that have been appealed; they are sometimes referred to as higher or upper courts), may publish formal written opinions that present and explain their more important rulings. Collectively, these published opinions, sometimes referred to as case law, comprise the ever-growing body of legal precedent that guides the decisions of the trial courts (or lower courts ) in subsequent cases. 11

12 Thus, legal precedent is a critical part of the total body of law that must be studied to understand fully any given legal topic. It provides critical information supplementing the code that tells us how the code should be applied in specific situations. Legal precedent continually grows in volume as new disputes come before the courts that clarify, modify, add to, or overturn prior precedent. Thus, legal precedent must be reviewed frequently by anyone wishing to have an up-to-date understanding of any legal topic. Changes in the code occur from time to time as well, so it, too, must be continually monitored. In some instances, a court opinion interprets a particular statute or regulation in a manner that renders the statute or regulation completely misleading on its own. For example, a North Carolina statute requires that a child born to unwed parents, upon being legitimated, 2 be given the father s last name. 3 However, the North Carolina Court of Appeals held 4 that each parent has an equal constitutional right for the child, upon being legitimated, to be given his or her last name. 5 In this instance, the appellate court s ruling all but negates the statute, so clearly, relying on the statue alone would be a mistake. (Where legal precedent and code conflict, the precedent prevails and establishes current law.) So, to have a full and accurate understanding of any given area of law, 2 Legitimation is a legal process whereby a child born out of wedlock is given the legal status of a child born in wedlock, which may affect inheritance and other rights. 3 N.C. Gen. Stat A case holding is the court s ruling on the specific dispute(s) being litigated, and is the part of a court opinion that serves as legal precedent. Court opinions often contain other discussion, called dicta. While officially of no formal value as precedent, dicta may, among other things, explain how the court reached its decision, or foreshadow how the court would likely rule on a related matter in the future. 5 Jones v. McDowell, 53 N.C. App. 434, 281 S.E.2d 192 (1981). 12

13 both the code and precedent must be researched and carefully studied. Sometimes, there is no legal precedent that directly applies to the facts in a current situation, or the available precedent has limited application for any of a variety of reasons. In these instances, the proper application of a statute or regulation to a specific situation may be uncertain and subject to debate or dispute. Such is often the case with vaccine religious exemptions, which makes it virtually impossible at times to state in precise, definitive terms exactly what one s present legal rights are. This can cause confusion for all concerned, and lead to difficulty in exercising or defending an exemption. Finally, there is a body of law outside of codified law called common law. Common law comes from historical usage and custom, and is often documented in legal precedent. Common law principles may apply to quarantine and isolation as they pertain to infectious disease emergencies, but the author is unaware of any common law theories otherwise directly applicable to vaccine exemptions, and so none are discussed in this publication. SUBSTANTIVE AND NON-SUBSTANTIVE LAW Legal disputes have both substantive law and non-substantive law components. Substantive law pertains to the essential issues that affect a right or duty in simpler terms, those matters that cases are generally all about to clients and parties in a dispute. With vaccine religious exemptions, substantive law matters include rights and obligations under statutes, regulations, and constitutions as set forth in those codes and applicable legal precedent. In contrast, non-substantive law 13

14 concerns rules, procedures, and remedies that determine how the substantive law issues are managed by the legal system. Rules, procedures and remedies are not mere technicalities. Each is a distinct, separate body of law, the knowledge of which, or lack thereof, can make or break a case. Sometimes, challenges concerning legal rules and procedures prevent the substantive law matters in a case from ever being addressed by the court at all. For example, state and federal procedures include statutes of limitation that impose a time limit on when a case can be filed. If you miss a deadline for filing a lawsuit, you may not be able to get your dispute into court at all, whether you had a winning case or not. These and other procedural rules must be strictly adhered to in vaccine exemption matters, or a potentially sound case may be unnecessarily undermined and an otherwise valid exemption right lost. The non-substantive law universe is vast. It includes rules of procedure (which are different for civil and criminal cases), rules of court, rules of evidence, and ethical rules for attorneys. Each of these is a separate body of law that varies from state to state and from state courts to federal courts. In addition, individual rules are subject to interpretation by the courts just like substantive law codes, so a complete understanding of rules requires ongoing study of the ever-changing legal precedent applicable to them, just as with the substantive law issues. In addition, there are local rules that must be adhered to for each judicial district. Finally, there are local customs of practice that may not be formally codified anywhere, and in some instances, may even be contrary to other law. Keeping up with all of this is enough to make even the most capable attorney s head spin, but make a serious enough mistake with any of these, 14

15 and the case can be over before a trial on the substantive issues even get started. What does all of this have to do with your vaccine exemption rights? Aside from factoring into your decision about whether or not and when to involve an attorney in your vaccine exemption matters (discussed in the Do You Need an Attorney? section below), understanding this can factor into your overall plan for pursuing a vaccine exemption, as sometimes, the best way to avoid a lawsuit is to be fully prepared for one. As this maxim is more applicable to vaccine exemption substantive law, and since rules and procedures fill volumes and vary from jurisdiction to jurisdiction, the rest of this book addresses the substantive law on vaccine exemptions, primarily religious exemptions, and the most critical, practical issues that must be considered in order to make informed exemption assessments and effective exemption implementation plans. If you anticipate an actual formal legal proceeding or find yourself an unwilling participant in one, you should consult an attorney as soon as possible to avoid a serious disadvantage with either substantive or nonsubstantive components of your case. If you can t find an attorney knowledgeable about vaccine exemptions, the author consults with attorneys around the U.S. and may be able to assist you and your local attorney. So without further ado, here are the primary substantive law components to vaccine religious exemptions, with discussion about medical and philosophical exemptions where relevant and pertinent. 15

16 II. FEDERAL LAW COMPONENTS A. The U.S. Constitution The first ten amendments to the U.S. Constitution comprise the Bill of Rights, which was ratified by the First United States Congress in 1791, not long after the Constitution itself was ratified in The First Amendment has two clauses relevant to vaccine religious exemptions: 1) The Establishment Clause, which states: Congress shall make no law respecting an establishment of religion, and 2) the Free Exercise Clause: or prohibiting the free exercise thereof. The wording of these clauses is pretty general, so we should immediately wonder: What exactly do these phrases mean? How do they apply to vaccine religious exemptions? What are the boundaries? And perhaps most importantly, Who gets to decide these things? (Hint: Not you or me!). The language in the Constitution is not often easily applied directly to specific situations, nor was it likely intended to be. Rather, the Constitution is interpreted by the courts in the resolution of actual legal disputes on a case-by-case basis. Thus, the practical meaning and application of the Constitution is continually being explored, defined and redefined, one legal dispute at a time, in state and federal courts throughout the country. To the extent that Constitutional rights with regard to specific situations have not been litigated and reported in published court opinions, those rights may be legally unsettled, though in some instances, there may still be strong legal arguments 16

17 in favor of a particular position. This is often the case with vaccine religious exemptions. Lay people often talk about rights in absolute terms. The reality is, few if any rights are absolute. The boundary of each individual right is often defined by an opposing right. For example, historically, the right to refuse vaccines for religious reasons has always been opposed by the state s right to require vaccines for the presumed common good of the community, especially during disease outbreaks. Federal courts have held: It has long been settled that one area in which religious freedom must be subordinated to the compelling interests of society involves protection against the spread of disease. 6 States have broad discretion when it comes to exercising their police power to require vaccination regardless of the religious or philosophical objections of indi- 6 See, e.g., Jacobson v. Mass., 197 U.S. 11 (1905). vidual vaccine recipients. In fact, states appear not to be required to provide a religious exemption under the Constitution at all, 7 so it is curious, then, that all but two states presently do. 8 However, once a state offers a religious exemption, it is required to support that exemption right with the full protection afforded religious rights under the U.S. Constitution. The scope of that protection has been defined to some degree by state and federal courts, as discussed in the sections below about state and federal legal precedent. For now, just note that you may have broad rights regarding the exercise of religious exemptions to immunizations under the U.S. Constitution, but those rights have malleable boundaries that: 1) are ultimately sub- 7 See Workman v. Mingo County Board of Education, (FED4), an unpublished federal Fourth Circuit opinion holding that West Virginia is not required to offer a religious exemption to vaccinations. 8 Presently, Mississippi and West Virginia offer only medical exemptions. Jacobson may be the reason that all states now offer a medical exemption. 17

18 ject to clarification or even modification at any time, 2) can vary with geographic location or with local conditions such as disease outbreaks or a threat of biological warfare attack, and 3) are not precisely defined, legally/technically, for most U.S. citizens. The Fourteenth Amendment to the U.S. Constitution, ratified in 1868, contains two clauses relevant to vaccine religious exemptions: 1) The Due Process Clause, which states: nor shall any State deprive any person of life, liberty, or property, without due process of law, and 2) the Equal Protection Clause: nor shall any State...deny to any person within its jurisdiction the equal protection of the laws. The Fourteenth Amendment greatly expanded the application of the Bill of Rights, which includes First Amendment religious freedom rights. Originally, the Bill of Rights applied only to laws enacted by the U.S. Congress. However, the so-called fundamental rights portions of the Bill of Rights, which includes the First Amendment clauses cited above, were later held by the Supreme Court to apply to state and local governments as well as the federal government, by way of the Fourteenth Amendment s Due Process Clause. Were it not for the Fourteenth Amendment, people exercising a state vaccine religious exemption law would lack critical First Amendment support that they now have. The Fourteenth Amendment s Equal Protection Clause is implicated, along with the First Amendment s Free Exercise Clause, where state vaccine religious exemption laws require a person to be a member of an organized religion with tenets in opposition to the immunization requirements in order to qualify for the exemption. Such laws were held to be unconstitutional in New York and Arkansas federal courts in recent years, and in a 18

19 few other state courts before that in violation of the First, or First and Fourteenth, Amendments. In most of these instances, the unconstitutional laws were stricken and later replaced by religious exemption laws designed to pass Constitutional scrutiny. Curiously, laws like the ones held to be unconstitutional in some states are still on the books in other states where such laws have yet to be formally challenged. Despite the likelihood that they would be held to be unconstitutional if they were challenged in court, those laws are still good law (i.e., enforceable), unless and until they are either held to be unconstitutional by a court or modified by the state legislature. 9 Remember what our rights should be at any given time is not always what the law currently is. Finally, the equal protection clause is potentially implicated concerning the implementation of an otherwise Constitutional religious exemption law. It s Constitutionally OK for a state to scrutinize religious exemptions as to the religious nature or sincerity of the beliefs, if the state chooses to go there in its laws, but if that scrutiny is not applied fairly and consistently to all exemption applicants, the law may violate the Equal Protection Clause in its implementation. This raises serious questions about states like New Mexico and New York who closely scrutinize religious exemptions for schools. Evidence of unequal application of the law could support a court challenge of the Constitutionality of such laws. B. Federal Statutes 9 A discussion about how one might approach an exemption in states requiring membership in an organized religion, when one does not belong to such a religion, is discussed below. The U.S. Congress has no authority beyond that granted it by the U.S. Constitution. The U.S. 19

20 Congress lacks authority to legislate vaccine requirements or exemptions for state residents, so that task falls to the states. 10 Each state, therefore, individually enacts vaccine legal requirements and exemptions for its own residents. The Federal government has legislated vaccine exemptions for immigrants, aliens and the military, as these are federal concerns. For example, a federal statute grants exemptions for immigrants under such circumstances as the [U.S.] Attorney General provides by regulation, with respect to whom the requirement of such a vaccination would be contrary to the alien s religious beliefs or moral convictions. 11 Administrative reg- ulations spell out the details (discussed in the Federal Administrative Law section below). Federal statutes also allow members of the armed forces to be exempt from participation in the anthrax vaccine immunization program for either administrative or medical reasons (administrative reasons include religious objections), 12 and provide for the tracking of separations resulting from refusal to participate in the anthrax vaccine immunization program. 13 (Military exemptions are discussed in the Federal Administrative Law section below.) Some employers require vaccines for their employees. 14 Those employees who wish to avoid 10 However, states generally enact vaccination laws consistent with recommendations of the ACIP and CDC, federal agencies discussed below. When the federal government can t control the states directly, it often exerts powerful influence by requiring specific action by states for states to qualify for related federal funding U.S.C. 1182(g)(2)(C) USC 1110 Anthrax vaccine immunization program; procedures for exemptions and monitoring reactions USC 1178 System and procedures for tracking separations resulting from refusal to participate in anthrax vaccine immunization program. 14 See the section below on OSHA, under Federal Administrative Law, and on Employees in Part II. 20

21 employers requirements for religious reasons may have support in the federal statutes, which is critical, since there are very few state exemption laws that apply to employees (most apply only to students). Title VII of the Federal Civil Rights Act of 1964 requires employers to reasonably accommodate their employees religious beliefs and practices, and applies to employers with over 15 employees. So, if a qualifying employer can reasonably accommodate an employee s religious objections to immunizations, the employee should be able to avoid the required vaccines. Title VII also applies to college students in healthcare programs required to do clinical work in a hospital or other healthcare facility. Next, the Federal Civil Rights Act of 1871 provides that anyone using power given by state or local government that causes another person to be deprived of rights guaranteed by the U.S. Constitution or federal law is liable to that person. The specific statute, 42 U.S.C. 1983, often referred to simply as section 1983, has been the basis for some of the claims in the vaccine religious exemption cases discussed below; e.g., where school and health department officials have denied school admission to unvaccinated students whose parents have properly claimed a religious exemption that is supported by, e.g., the First Amendment of the Constitution. Finally, in 1993 Congress passed the Religious Freedom Restoration Act, 15 which states: Government shall not substantially burden a person's exercise of religion even if the burden results from a rule of general applicability, unless it demonstrates that application of the burden to the person (1) furthers a compelling governmental interest; and (2) is the least restrictive means of fur U.S.C. 2000bb et seq. (Title 42, Chapter 21B) 21

22 thering that compelling governmental interest. While not directed at religious objections to vaccines specifically, this Act may nonetheless provide support for those wishing to avoid vaccines for religious reasons in some situations. The Act was originally drafted to apply to state and federal governments, but the Supreme Court later ruled that Congress had overstepped its authority, so the Act now only applies to the federal government. 16 In response, several states enacted their own state Religious Freedom Restoration Acts (discussed in the section on state statutes below). C. Federal Administrative Law Administrative law refers to the body of law created by administrative agencies governmental bodies charged with administering and 16 See Wikipedia s historical summary at implementing particular statutory legislation in the form of rules, regulations, orders and decisions to carry out the regulatory duties and powers of those agencies. 17 There are hundreds of federal agencies, including agencies within agencies. (State agencies are discussed in the section on State Administrative Law below.) For example, the U.S. Department of Health and Human Services (DHHS), the United States government's principal agency for protecting the health of all Americans and providing essential human services, especially for those who are least able to help themselves, 18 has over 300 programs. Among those concerned with vaccines are: 17 The term administrative code is synonymous with regulations and administrative regulations for purposes of this e-book. 18 United States Department of Health & Human Services, HHS: What We Do, at 22

23 1) The Food and Drug Administration (FDA), whose many activities include the licensing of vaccines for use in the U.S.; 2) The Centers for Disease Control and Prevention (CDC), which is concerned with public health efforts to prevent and control infectious and chronic diseases, injuries, workplace hazards, disabilities, and environmental health threats, and is committed to achieving true improvements in people s health. 19 (Note: the CDC has an explicit international vaccination agenda); 3) The National Institutes of Health (NIH), which is the primary Federal agency for conducting and supporting medical research 20 with 27 separate Institutes and Centers; and 4) The Advisory Committee on Immunization Practices (ACIP), which provides advice and guidance to the Secretary [of the Department of Health and Human Services], the Assistant Secretary for Health, and the Centers for Disease Control and Prevention (CDC) on the most effective means to prevent vaccine-preventable diseases. 21 The ACIP develops written recommendations for the routine administration of vaccines to pediatric and adult populations, schedules for appropriate periodicity, dosage, and contraindications. The ACIP is the only entity in the federal government that makes these recommendations, 19 Department of Health and Human Services, Centers for Disease Control and Prevention, About the CDC, at 20 U.S. Department of Health and Human Services, National Institutes of Health, About NIH, at 21 National Immunization Program, ACIP Advisory Committee on Immunization Practices, at 23

24 and it does so in conjunction with American Academy of Pediatricians (AAP) 22 and the American Academy of Family Physicians (AAFP). 23 Other federal agencies whose concerns may include vaccines and/or vaccine exemptions include: 5) The Equal Employment Opportunity Commission (EEOC), an executive agency that investigates and enforces Title VII claims. Such claims could involve disputes where an employer rejects an employee s request for accommodation of the employee s religious objection to employerrequired vaccines; 6) The United States Citizen and Immigration Service 24 (USCIS), which oversees immigrant vaccine 22 The AAP is a non-profit organization founded in It presently has about 60,000 members, with headquarters in Illinois. 23 The AAFP was founded in It presently has about 94,000 members, with headquarters in Kansas. requirements and exemptions. A Department manual states: The Attorney General will authorize an INA 212(g)(2)(C) waiver when the alien establishes that compliance with the vaccination requirements would be contrary to his or her religious beliefs or moral convictions. 25 The person or parent must complete Form I-601, Application for Waiver of Grounds of Excludability, 26 pay the corresponding fee, and provide written evidence under oath that they meet three requirements: 1) That the objection is sincere, 2) That the objection is based on religious or moral convictions, and 3) That the applicant is opposed to vaccinations in 24 In 2003, service and benefit functions of the U.S. Immigration and Naturalization Service (INS) transitioned into the Department of Homeland Security (DHS) as the U.S. Citizenship and Immigration Services (USCIS). The USCIS is responsible for the administration of immigration and naturalization adjudication functions and establishing immigration services policies and priorities FAM 4.11 PN4.3 Waiver under INA 212(g)(2)(c). 26 Available from the USCIS website under Immigration Forms at 24

25 any form. 27, 28 This is perhaps the most complicated exemption procedure, and therefore, one that is usually best done with the aid of an experienced attorney; 7) The U.S. Department of Defense: For Service personnel, immunization exemptions for religious reasons may be granted according to Service specific policies to accommodate doctrinal religious beliefs. This is a command decision made with medical and chaplain advice. 29 Air Force personnel may only be granted temporary religious exemptions, 30 though the meaning of the word temporary here is unclear, and other feder FAM 4.11 N Waiver under INA 212(g)(2)(c). 28 Form I-601 applies to international child adoptions. 29 Army Regulation , BUMEDINST A, AFJI CG COMDTINST M6230.4F, section 2-6(b)(3)(a) at 30 However, it is not clear exactly what the military means by temporary here, and an arbitrary rejection of an exemption would arguably violate other federal law. al law supports permanent exemptions. Applicants have to be counseled by a military physician, to ensure the Service personnel is making an informed decision. Military civilian employees can submit religious exemption requests to their supervisors, who must process them in accordance with 29 CFR 1605 and component and local policies. 31 Part defines religious practices to include moral or ethical beliefs as to what is right and wrong which are sincerely held with the strength of traditional religious views, and includes language that implies that it does not matter whether or not the employee belongs to an organized religion, nor which religion the employee belongs to if the employee belongs to one. Part provides details about the reasonable accommodation required by Title VII of the Civil Rights Act of 1964 (see section on federal 31 Code of Federal Regulations, Title 29 Labor, Part 1605 Guidelines on Discrimination Because of Religion, Chapter XIV Equal Employment Opportunity Commission. 25

26 statutes above). Finally, keep in mind that the federal Religious Freedom Restoration Act cited above may provide further support for military personnel and/or military civilian employees and their children in military schools; and 8) The Occupational Safety and Health Administration (OSHA), an agency within the U.S. Department of Labor, whose mission in part is to assure the safety and health of America's workers by setting and enforcing standards for [n]early every working man and woman in the nation... (with some exceptions such as miners, transportation workers, many public employees, and the self-employed). 32 OSHA regulations require the Hepatitis B vaccination series be made available... to all employees who have occupational exposure unless the employee has previously received the complete hepatitis B vaccination series, anti- 32 OSHA s Mission at body testing has revealed that the employee is immune, or the vaccine is contraindicated for medical reasons. The regulations appear to stop short of stating an absolute requirement, adding: The employer shall assure that employees who decline to accept hepatitis B vaccination offered by the employer sign the statement in appendix A. 33 When conflicts arise involving administrative rules and regulations, they usually have to be addressed in an administrative proceeding before they can be taken to state or federal court. Since the implementation and enforcement of vaccine requirements generally falls to state or federal agencies e.g., health departments for state school exemptions, the USCIS in the case of immigrants, the Department of Defense for military members most conflicts concerning vaccine ex- 33 See 29 CFR (f) and subparts. 26

27 emptions must first be addressed in administrative proceedings, which involve hearings before an administrative law judge. The requirement that one attempt to resolve a dispute over administrative matters in administrative proceedings before being allowed to file a lawsuit in state or federal court is known as the exhaustion doctrine. That is, until one s administrative remedies are exhausted, one cannot pursue the matter in court. There are exceptions where administrative conflicts may be taken directly to state or federal court, such as a Florida appellate court opinion involving a vaccine religious exemption dispute discussed in the section on State Courts and State Precedent below. 1) Ninety-four district courts (federal trial courts), with one or more districts in each state, the District of Columbia and Puerto Rico; 34 Federal Courthouse in Raleigh, NC 2) Eleven regional Circuit Courts federal appellate courts that review rulings appealed from the federal district courts. Each Circuit Court s jurisdiction encompasses three or more states and territories; 35 and 3) The U.S. Supreme Court, with jurisdiction over the entire United States. The U.S. Supreme Court may review decisions of the federal cir- D. Federal Courts and Federal Precedent The federal court system includes: 34 The Virgin Islands, Guam, and Northern Mariana Islands also have district courts that hear federal cases. 35 There are other specialized federal trial and circuit courts, but those listed here are the courts most likely to be involved in vaccine exemption disputes. 27

28 cuit courts and some state Supreme Court opinions. 36 Since vaccine religious exemption disputes may involve a mixture of state and federal law, legal disputes concerning them may sometimes be filed in either state or federal court once the administrative remedies have been exhausted. Indeed, such cases in recent decades have been brought in both state and federal courts, as shown by the many examples discussed below. opinions in cases that are sufficiently similar or analogous to cases in the published opinions. However, these opinions serve only as persuasive precedent for courts outside of the issuing court s jurisdiction, which means that courts in other jurisdictions are free to rule differently. Indeed, some court opinions have little to no real precedential value outside of the jurisdiction in which they are issued. 37 This distinction can be critical to vaccine religious exemptions, as explained further below. Important federal and state appellate court rulings documented in published opinions serve as binding precedent for lower courts within the jurisdiction of the court issuing the opinion. This means that the lower courts in the same jurisdiction must rule consistent with these published 36 See for more on the federal court system. Legal precedent is the means by which courts strive for consistency in their rulings, pursuant to the judicial doctrine known as stare decisis, a Latin phrase meaning to stand by that which is decided. Legal precedent serves to pro- 37 Published federal court opinions serve as binding precedent on state courts within the ruling federal court s jurisdiction. Also, whenever there is a conflict between state and federal law, federal law generally supersedes state law. 28

29 vide guidance for points of law considered to be settled, and courts will usually defer to such precedent unless there is a compelling reason to overrule the prior precedent or carve out an exception to it. However, since legal precedent consists of rulings on prior cases with specific facts, and since individual facts and circumstances necessarily vary from case to case, it is sometimes not possible to make a clear, definitive correlation between a precedent case and a current dispute. Even subtle differences between a precedent case and a current dispute can provide an opportunity for a legal argument that the published opinion applies in a particular way to a present dispute, or that it doesn t even apply at all. Complicating this further is the fact that in some instances, prior precedent may apply analogously, which sometimes means that a previous court opinion can determine the outcome of a present case despite there being little or no similarity between the facts of the precedent case and those of the current dispute. This opens the door for creative legal reasoning. In any event, parties may argue for a specific application of precedent, but the final determination is ultimately up to the court. Prior to a judge s ruling, assertions about the applicability of precedent especially persuasive precedent stand as legal arguments in favor of a particular position or outcome only, and not necessarily as a definitive statement of what the law in a particular situation is now, how the court must rule. Generally, the more clear and obvious it is that particular precedent does or does not apply, the less likely it is that a dispute will result in a costly lawsuit. But where there are legitimate conflicting interpretations of law, or where one or both sides of a dispute are adamant about their point of view despite having a weak legal argument, disputes may require court proceedings to be resolved. 29

30 What does all of this mean to you? Well, for one thing, if you live outside of the jurisdiction of the courts that have generated legal precedent relevant to the particular facts in your vaccine exemption claim, your legal rights may be less clear and subject to interpretation and dispute. Unfortunately, this is the case for the majority of the country with regard to vaccine religious exemptions, to one degree or another, as the total body of legal precedent in this area of law is relatively small and comes from few jurisdictions. However, in the few vaccine religious exemption cases that have come up in state appellate courts in recent years, state courts have consistently followed recent federal precedent on vaccine religious exemptions from other jurisdictions. So, at least some positions supported by persuasive precedent are strong ones where vaccine religious exemptions are concerned. But the distinction between binding precedent and persuasive precedent is still important; it factors into both the strength and the vulnerability of the legal arguments supporting your rights under the specific facts in your situation. Furthermore, we cannot assume that persuasive precedent will necessarily always be followed in any given jurisdiction in the future just because it was followed in other jurisdictions in the past. For that matter, there are some inconsistencies in the legal precedent, which may add still further to the confusion about your present legal rights and the lack of certainty of the outcome of possible legal disputes. Therefore, it is critical to know what precedent supports your rights, and whether it is binding or persuasive, so you can make informed decisions about asserting and exercising your rights accordingly. THE LEGAL DEFINITION OF RELIGION 30

31 Before discussing specific federal court cases on vaccine religious exemptions, it is important to understand how the U.S. Supreme Court has defined religion under the U.S. Constitution for legal purposes, as that has a direct bearing on your Constitutional right to exercise a vaccine religious exemption especially if you are not a member of an organized religion with tenets opposed to immunizations. For starters, the Supreme Court has held that religion need not be founded upon a belief in the fundamental premise of a God as commonly understood in Western Theology. 38 In addition, the Court has said that the test of belief in relation to a Supreme Being is whether a given belief that is sincere and meaningful occupies a place in the life of its possessor parallel to that filled by the orthodox belief in God, 39 and that religion involves the ultimate concerns of individuals. 40 These holdings suggest that many different religious beliefs and practices may qualify for a vaccine religious exemption under the U.S. Constitution well beyond the narrow range of orthodox religious beliefs that may first come to mind when you hear the phrase religious exemption. Courts have ruled consistent with this notion, as some of the cases discussed below reveal. THE LEGAL LANDSCAPE: Current vaccine policy and law sits in a legal context defined by the Supreme Court over 100 years ago in the Jacobson v. Mass. case. 41 Jacobson was a Massachusetts man who refused 38 Sherr v. Northport-East Northport U. Free, 672 F. Supp. 81, 98 (E.D.N.Y. 1987) (quoting Torcaso v. Watkins, 367 U.S. 488, 81 S.Ct. 1680, 6 L.Ed.2d 982 (1961)). 39 Id. (quoting United States v. Seeger, 380 U.S. 163, , 85 S.Ct. 850, 854, 13 L.Ed.2d 733 (1965)). 40 Id. (quoting Seeger, 380 U.S. at 187, 85 S.Ct. at 865). 41 Jacobson v. Mass., 197 U.S. 11 (1905) 31

32 the small pox vaccine during a local outbreak due to the serious adverse reaction he had to the vaccine as a child. He lost the case, because he did not have evidence of a present medical condition that would make him an unfit subject for vaccination as an adult. The Court implied that there were Constitutional grounds for refusing vaccines for qualifying medical reasons, which is probably why all state and federal jurisdictions provide for a medical exemption today. A later Supreme Court case, Prince, 42 implied that the Court would rule, if the issue were to later come before the Court, that the Constitution does not require states to offer a religious exemption. 43 That 48 states and all federal jurisdictions do is testament to the value we place on religious freedom in the United States. 42 Prince v. Com. of Mass., 321 U.S. 158 (1944). 43 The court in the Workman case cited in footnote 7 above relied on Prince. Some parts of the Jacobson Court s written opinion are worth quoting directly: "A common belief, like common knowledge, does not require evidence to establish its existence, but may be acted upon without proof by the legislature and the courts.... In a similar vein: [W]hat the people believe is for the common welfare must be accepted as tending to promote the common welfare, whether it does in fact or not. Any other basis would conflict with the spirit of the Constitution, and would sanction measures opposed to a republican form of government. These statements are alarming. They suggest that whoever controls the flow of information the media, in modern times dictates law, regardless of the truth or intent of the information disseminated. Jacobson went on to say that the courts could not secondguess the legislature, which presumably considered alternative vaccine theories when it concluded that vaccines were necessary. So, it appears 32

33 that those who disagree with vaccine requirements can t ask a court to consider the evidence of harm. They must, instead, take their case to the legislatures and convince them to change the laws. We now move on to the federal court cases of recent decades that have helped to define and expand the boundaries of your Constitutional right to exercise a vaccine religious exemption. Most of these are federal district court cases, and so are binding precedent only for the states in which these districts lie, though one case from the Second Circuit Court of Appeals is binding on the three New England states in that Circuit. These cases are presented in chronological order, beginning with a 1976 federal district court case in Kentucky. FEDERAL COURT OPINIONS 1) The state of Kentucky s exemption requirement that applicants be members of a nationally recognized and established church or religious denomination was held not to violate the First Amendment s Establishment Clause. 44 However, more recent rulings in other federal district courts appear to say otherwise, so future cases involving this question would likely have a different outcome. In fact, Kentucky no longer requires membership in an organized religion to refuse immunizations for religious reasons. 45 (Western District of Kentucky, 1976). 44 James G Hodge, Jr., and Lawrence O. Gostin, School Vaccination Requirements: Historical, Social and Legal Perspectives as of February 15, 2002, a State of the Art Assessment of Law and Policy, (citing Kleid v. Board of Educ., 406 F.Supp. 902 (W.D. Ky. 1976)), at 45 See KY. REV. STAT. ANN (2005). 33

34 2) Ohio parents whose objection was based on chiropractic ethics were denied a religious exemption. 46 However, Ohio now offers a philosophical exemption. (Southern District of Ohio, 1985) 3) The State of New York was told that it must offer the exemption to all persons who sincerely hold religious beliefs. 47 The court analyzed the case using a two-prong test. The beliefs in question must be: a) religious in nature, and b) sincerely held. Under this ruling, our U.S. Constitution s First Amendment supports a vaccine religious exemption, when the state offers one, via the First Amendment s Free Exercise Clause, when these two conditions are met. 46 Id.,(citing Hanzel v. Arter, 625 F. Supp (S.D. Ohio, 1985)). 47 Sherr, 672 F. Supp. at 98. In the same case, New York State s law requiring membership in a recognized religious organization was held to violate both the establishment and free exercise clauses of the First Amendment to the United States Constitution. 48 (Compare to the 1976 Kentucky case.) (Eastern District of New York, 1987) 4) In another New York case, the plaintiffs religious exemption was ultimately denied. The parents and child s commitment to living in a natural order that they claimed was over and above a level of scientific belief and their commitment to a lifestyle based on what they perceived as a genetic blueprint was deemed not to rise to the level of a religious belief. The father was a chiropractor and member of the Davenport Universal Live Church (DULC), organized and consisting mostly of, fellow chiropractors. The DULC had no mem- 48 Id. at

35 bership requirements, no services, and no traditional doctrine, advocating instead a natural existence. 49 (Second Circuit, 1988) 5) In yet another New York case, the defendant was held to have violated [the parents ] First Amendment right to free exercise of religion by denying the exemption and excluding their child from kindergarten. The parents were awarded damages... [for the] violation of their First Amendment right to free exercise of their religion. 50 In the same case, the state was told that it must provide a general exemption for any person who opposes immunization of their child based on a sincerely held religious belief, 51 and that a person need not rigidly adhere to each and every tenet of his faith in order to qualify as a sincere believer... no inference of insincerity may be found to flow from their failure to follow the whole gamut of their religion s tenets... It is not for the court to determine how devout a follower is; rather, it need only determine that a sincere religious belief underlies their present claims. 52 (Southern District of New York, 1989) 6) In another New York federal district court case, and quoting a prior U.S. Supreme Court case, the court noted: The loss of First Amendment Free- 49 Mason v. General Brown Cent. School Dist., 951 F.2d 47 (2 nd Cir. 1988). 50 Lewis v. Sobel, 710 F. Supp. 506 (S.D.N.Y. 1989). 51 Id. at 511 (quoting Mason v. General Brown Central School Dist., 851 F.2d 47 at 54 (2d Cir. 1988)). 52 Id. at 515 (quoting Allanson v. Clinton Cent. School Dist., No , slip. op. at 15 (N.D.N.Y. May 7, 1984)). 35

36 doms, for even minimal periods of time, unquestionably constitutes irreparable injury. 53 In the same case, where an exemption was upheld for two Jewish children, the court opinion states: [T]hey adhere to their own concept of being Jewish... The basis for their opposition to immunization was their own interpretation of passages from certain Hebrew scripture. Thus, the exemption was allowed despite a rabbi s opposing testimony that there is nothing in the teaching of the Jewish religion that would proscribe immunization for children (Eastern District of New York, 1994) 7) In an unpublished Second Circuit (appellate) case, the parents claims of religious objections were deemed not credible. The parents motivation for the exemption was found to include personal fears for their daughter s well being. 55 (Second Circuit, 2000) 8) Again in New York: The beliefs need not be consistent with the dogma of any organized religion, whether or not the [parents claiming the exemption] belong to any recognized religious organization. 56 (Eastern District of New York, 2000) 9) In an Arkansas federal district court case, the state s religious exemption clause requiring membership in an organized religion with tenets in opposition to the immunization requirements was found to violate the First and Fourteenth Amend- 53 Berg v. Glen Cove City School Dist., 853 F. Supp. 651, 654 (E.D.N.Y. 1994) (quoting Elrod v. Burns, 427 U.S. 347, 373, 96 S.Ct. 2673, 2689, 49 L.Ed.2d 547 (1976)). 54 Id. at 655 (E.D.N.Y. 1994). 55 Galinsky v. Board of Education of New York, 213 F.3d 626 (2 nd Cir. 2000) 56 Farina v. The Board of Education, 116 F. Supp.2d 503, 507 (S.D.N.Y. 2000) (citing Sherr, 672 F. Supp. at 91). 36

37 ments. However, a severability clause in the state statute required that in the event any section or subsection of the Code is declared unconstitutional, the remaining portion of the Code shall remain in full force and effect as if the portion adjudged unconstitutional was not originally a part of the Code. Since the state legislature s dominant intent was deemed to have been to establish a comprehensive immunization program, the religious exemption portion was stricken with the balance of the immunization statute remaining in full force and effect. 57 On appeal, this and two other similar cases were consolidated, but the Eighth Circuit Court of Appeals did not hear the case, because the Arkansas legislature rendered the issues moot by enacting both philosophical and religious exemptions for students. 58 (Western District of Arkansas 2002) 10) In a New York federal district court case, the New York religious exemption statute was held not to violate the First Amendment s establishment clause. 59 (Northern District of New York 2002) 11) In another New York federal case, the issue was whether or not a religious exemption for school attendance applied to a student s participation in extra-curricular activities sports, in this particular instance. The federal court issued a preliminary injunction requiring the school system to allow the student to participate in lacrosse pend- 57 McCarthy v. Boozman, 212 F.Supp.2d 945 (W.D.Ark. 2002). 58 The Religion Case Reporter, Arkansas, Ark. Code Ann at sas. 59 Turner v. Liverpool Cent. School, 186 F.Supp.2d 187 (N.D.N.Y. 2002). 37

38 ing the outcome of the proceeding on the matter already pending before the New York State Commissioner of Education (a state administrative proceeding). In the state proceeding, the student was seeking a ruling on whether or not a vaccine waiver for school attendance, granted for religious reasons, applied to participation in extra-curricular activities as well. 60 This federal court s ruling did not resolve the state court question, it merely allowed the student to participate in lacrosse while the state administrative proceeding played out. However, the discussion in the federal court s written opinion suggested that the student had a strong legal argument for his position. (Western District of New York, 2006) 12) In a 2011 Fourth Circuit unpublished opinion (i.e., not binding precedent), the court affirmed the 60 Hadley v. Rush Henrietta Central School Dist., 409 F.Supp.2d 164 (W.D.N.Y. 2006). lower district court s decisions, including one that the U.S. Constitution does not require states to offer a religious exemption to vaccinations. 61 III. STATE LAW COMPONENTS A. State Constitutional Law State Constitutions may provide support for religious exemptions. For example, North Carolina s Constitution states: All persons have a natural and Chatham County courthouse in Pittsboro, NC, before being destroyed by fire in inalienable right to worship Almighty God according to the dictates of their own consciences, and no human authority shall, in any case whatever, control or interfere with the rights 61 Workman v. Mingo County Board of Education, (FED4) 38

39 of conscience. 62 That s strong language. While it would not likely be given effect over and above the state s police power to compel vaccination, it could nevertheless be cited as support for one s right to claim a religious exemption, at least generally. 63 Religious rights language in other state constitutions may also support religious exemptions to immunizations, or provide support for the enactment of religious exemption legislation in states that don t presently offer one. State Constitutions are usually easy to find online with any standard search engine and on state websites. B. State Statutes 62 N.C. Const. Art. I, For a state constitution to serve as anything more than general or indirect support for a vaccine religious exemption, there would probably have to be either language in the constitution about religious freedom regarding medical procedures or vaccines specifically, or a published court opinion interpreting and applying a relevant section of the state constitution in an actual vaccine religious exemption dispute. As mentioned above, vaccine laws for state residents are enacted at the state level. Regarding exemptions for school enrollment, all 50 states provide medical exemptions, 48 religious exemptions, and about 20 philosophical or personal exemptions. States religious exemption statutes fall into two general categories those that require membership in an organized religion with tenets in opposition to the immunization requirements, and those that don t. Those that do would likely be held to be unconstitutional if challenged in court, based on successful challenges to similar laws in other states previously. The immediate consequence of such a ruling may not be as clear, though. When this matter was addressed by a New York federal district court, the court took the unprecedented step of requiring the State of New York to amend its religious exemption statute to make it Constitutional that is, the state had to remove the requirement of membership in an or- 39

40 ganized religion. However, when the matter was addressed in state appellate courts in Massachusetts, Mississippi and Maryland, and later in an Arkansas federal district court, the outcome was quite different. While the religious exemption section of the statue was ruled to be unconstitutional in those states, it was also found to be severable, which resulted in the religious exemption portion of the statute being stricken. In other words, since the religious exemption s requirement of membership in an organized religion was deemed to be unconstitutional, the religious exemption right was removed altogether rather than corrected as occurred in New York. In Massachusetts, Maryland and Arkansas, a revised religious exemption statute was later enacted. (Mississippi s anomalous result is discussed in the section on state precedent below.) States that don t require membership in an organized religion may have a more accessible exemption, but sometimes deceptively so. For example, North Carolina s religious exemption statute reads: If the bona fide religious beliefs of an adult or the parent, guardian or person in loco parentis of a child are contrary to the immunization requirements contained in this Chapter, the adult or the child shall be exempt from the requirements. Upon submission of a written statement of the bona fide religious beliefs and opposition to the immunization requirements, the person may attend the college, university, school or facility without presenting a certificate of immunization. 64 Here, the key requirements are bona fide (sincere) and religious. When North Carolina residents have a sincerely held religious belief in opposition to the immunization requirements, they 64 N.C. Gen. Stat. 130A-157 Religious exemption. 40

41 are exempt. However, as written, this statute suggests the possibility that the state could make an inquiry into the nature and sincerity of the belief(s) and uphold or deny the exemption accordingly. This is not the case in all states. In a 2001 Wyoming case, a Wyoming state appellate court ruled that the state s Department of Health had exceeded its authority by questioning the sincerity of the claimant s beliefs, since the plain language of that state s statute didn t allow the department to make such an inquiry. Thus, the vulnerability of religious exemption claims varies from state to state according to the specific wording of each state s exemption laws. Furthermore, the formal ruling in Wyoming didn t necessarily mean that all local officials immediately ceased questioning the sincerity of the beliefs of people claiming religious exemptions, despite clearly indicating that they should not be doing so. Rather, as a practical matter, it may only mean that if a local official does question an exemption applicant s beliefs and denies the exemption accordingly, the applicant would very likely prevail if he or she challenged the local official s denial of the exemption in court. Officials reportedly sometimes overstep legal and professional boundaries to discourage or prevent the exercise of valid legal exemption rights not necessarily because they have authority to do so, but because, presumably, they either don t know the limits of their authority, or because they feel morally compelled to protect society from non-vaccinating individuals, despite the existence of valid, legal exemption rights. Vaccination is an emotionally charged subject for people on both sides of the issue, and the climate for exemptions is, regrettably, often hostile. Of course, many local officials offer no resistance at all the problems alluded to here are not by any means universal, but they do appear to be common. 41

42 North Carolina s religious exemption statute s use of the word shall means that upon meeting the requirements, one is exempt; that is, there is nothing one needs to do to be exempt other than to have the requisite sincerely held religious belief. However, to get oneself or one s minor child into school without immunizations in North Carolina requires a written statement presenting the beliefs and opposition to the... requirements, which written statement may substitute for the required immunization certificate. There may be situations where one needs to document an exemption even though doing so is not be required by law, for purely practical reasons. For example, some family doctors and pediatricians are reluctant to treat unvaccinated children. Whether due to a fear of liability, concern for their professional reputation, a need to meet a vaccine quota, or simply because of strong beliefs that vaccines are necessary to protect the community and a desire to encourage immunization generally, it may be necessary to document your exemption in writing for your child s pediatrician or family doctor, even if it s not legally required. Putting your exemption in writing gives the physician something tangible to put in their patient file to clarify to anyone concerned at a later date that the lack of vaccination was the parent s choice, and not an oversight or negligence on the part of the doctor. Let s face it doctors have good reason to fear liability. By some highly reputable accounts, the American medical system is the leading cause of death and injury in the United States, 65 and lawyers aggressively pursue high-damage malpractice suits. Some doctors medical malpractice 65 See Death by Medicine at 42

43 insurance premiums are many times that of some lay people s gross yearly incomes. 66 Where state exemptions are concerned, you should take care to read your state s vaccine exemption statutes and regulations carefully, as exemption requirements and procedures vary from state to state. If your state statute requires you to write a letter, include everything the statutes and regulations require, but nothing more. Doing anything other than what is required may confuse the person processing your exemption claim, and risk rejection for you accordingly. For example, while it may be perfectly legitimate to have both religious and non-religious objections to immunizations, non-religious concerns are not relevant to a reli- 66 See, e.g, a summary of findings in a GAO (Government Accounting Office) study that cites medical malpractice insurance rates for obstetricians and gynecologists in 2002 ranging from $17,000 to $201,000, depending on the location. gious exemption. So, including them in a religious exemption letter is not only unnecessary, it could give the appearance that your real reason for wanting the exemption is not a religious one and that could result in the loss of the exemption despite also having a genuine, valid religious objection. You should take great care to see that your exemption claim complies fully and precisely with your state s laws. There is no one size fits all answer to the question of how to exercise an exemption. Individual exemption beliefs may also vary significantly within any one state, depending on the specific circumstances of each person claiming the exemption. So again, be extremely wary of any one size fits all advice. If you have any doubt about whether or not your beliefs qualify as religious for legal exemption purposes, or are concerned about how to present your beliefs in the best possible light so they 43

44 are not misconstrued or misunderstood, you may wish to explore further what kinds of beliefs have been accepted and rejected, to better understand the line between religious and philosophical for legal exemption purposes. 67 An attorney knowledgeable in vaccine religious exemption law may be helpful with your assessment if you are uncertain. Another potential complication to fully understanding your state s exemption law is the fact that the statutes related to a given legal topic sometimes appear in completely different sections of a state s code. This is probably inevitable, given the interrelatedness of different legal categories. For example, in North Carolina, vaccine requirements for nursing home residents and employees 67 A detailed explanation of this is beyond the scope of this e- book. Insight may be gained by reading the state and federal court cases cited in this publication, or by consulting a knowledgeable attorney. are in Chapter 131E, Healthcare Facilities and Services, completely separate and apart from the general school vaccine requirements and exemptions in Chapter 130A, Public Health. Other states vaccine religious exemption laws are located in the Education code, as they are linked to school enrollment. To further illustrate the point, North Carolina s Chapter 131E states (curiously): No individual shall be required to receive a vaccine under this section if the vaccine is medically contraindicated, or if the vaccine is against the individual's religious beliefs, or if the individual refuses the vaccine after being fully informed of the health risks of not being immunized 68 [emphasis added]. This statute provides medical, religious, and philosophical or personal exemptions for nursing home residents, while other North Carolina residents 68 N.C. Gen. Stat. 131E-113(e). 44

45 have only medical and religious exemption options provided under Chapter 130A, Public Health. So, in North Carolina, the answer to the question, Does your state have a philosophical exemption? is Yes, but only for nursing home residents. Pennsylvania has a similar law pertaining to influenza and pneumococcal vaccines that applies to both long-term care residents and employees. 69 Finally, as noted in the Federal Statutes section above, several states have enacted their own Religious Freedom Restoration Act (RFRA) or equivalent language following the U.S. Supreme Court s ruling that the federal Act wasn t applicable to state laws. These states include AL, AZ, CT, FL, ID, IL, MO, NM, OK, RI, SC, TN and TX. 70 Again, while these laws don t address vaccine exemptions directly, they may nevertheless provide support for people in those states wishing to refuse vaccines for religious reasons. (See federal RFRA section above.) C. State Administrative Law Like federal agencies, state agencies administer and implement legislation through rules, regulations and decisions. North Carolina s Department of Health and Human Services (DHHS) has the authority and duty to adopt rules to protect and promote the public health. Within the North Carolina DHHS is the Immunization Branch 71 that exists to promote public health through the identification and elimination of vaccine-preventable P.S Exceptions 70 religiousfreedom.asp 71 The North Carolina Immunization Branch is one of five branches of the Women's and Children's Health Section in the Division of Public Health, a division of the Department of Health and Human Services. 45

46 diseases 72 It consists of four units: Vaccine Services; Data Collection & Analysis; Field Services; and Communication, Outreach & Professional Development. Other states have state agencies that serve the same or similar functions. North Carolina s Immunization Branch provides vaccine exemption information on its website, as may similar departments in other states. In addition to displaying North Carolina s exemption statutes and regulation, the Branch s website states that religious exemptions do not need to be submitted to the state for review or approval. 73 While this implies that the state does not scrutinize the sincerity of an applicant s beliefs as a matter of department policy presently, it may not 72 dhhs, Immunize North Carolina, at 73 NC-DHHS, Immunize North Carolina, Medical and Religious Immunization Exemptions, at prevent the state from doing so at any time in the future, as statutory law appears to allow the state to scrutinize religious exemptions, and their appears to be no regulations prohibiting the state from reviewing religious exemption claims. But every state s laws are unique, so you have to review your state s laws to determine what your state s officials may or may not do. 74 Confusion surrounding exemption laws is not unusual. For example, since vaccination status has been tied to school enrollment, states statutes and regulations are often drafted as part of the education code, and may leave unclear rights and responsibilities in situations other than a child s enrollment in school. For example, North Carolina s immunization requirements and exemptions (despite being part of the code on Public 74 Links to exemption laws posted on 3 different sites are provided at the Vaccine Rights website, 46

47 Health) address application of the religious exemption with regard to school enrollment. However, it doesn t require a pediatrician in private practice to treat an unvaccinated child with a valid exemption, or state how a parent must deal with the non-vaccination status of their exempt children in any non-school-related context. Therefore, one should proceed with care and exercise common sense in such situations, such as offering to providing pediatricians a written exemption statement even though that may not be a formal legal requirement. If state vaccine religious exemption statutes may be said to fall generally into two categories those that require membership in an organized religion and those that don t state vaccine religious exemption regulations might also be said to fall into two general categories those that require and/or provide forms to exercise an exemption, and those that don t. 75 In states where forms are required, they are typically available from local health departments, and in some cases on those departments websites. If you are uncertain whether or not a form is required, a call to your local health department should resolve the matter. Or, you can consult your state s health department website, your state s statutes and regulations at a public library, or an attorney. It s best not to use a form if one isn t required, and if a form is required, use only one authorized by the state or a state agency. Otherwise, you may not be in compliance with the law, and your exemption attempt could fail. Some people have used unofficial forms or affidavits successfully. But those exemptions may be subject to future scrutiny and rejection if the forms do not 75 For example, North Carolina requires a form for a medical exemption, but not for a religious exemption. This will vary from state to state. 47

48 strictly comply with their state s requirements. It s always best to follow the requirements set out in the statutes and regulations in your state as closely as possible. That makes it easier for the people processing your exemption to see that you are in compliance with the law, and it reduces the prospect that you will be scrutinized or challenged when you submit your claim or at some future time. Usually, state statutes and regulations are clear and their instructions straightforward, but not always. The North Carolina Immunization Branch once had instructions on its website that were not consistent with the applicable religious exemption statute and regulation posted on the same web page. This is surely a prescription for confusion for anyone reading the website for information about how to exercise a religious exemption. 76 States administrative regulations provide many of the rules and details concerning the implementation and enforcement of statutory immunization requirements, including exemptions. For example, a few years ago, North Carolina s administrative code addresses the following vaccine topics: 1) Vaccine dosage and age requirements, 2) Access to immunization information, 3) Medical exemptions, 4) Daycare records, 5) Non-licensed childcare homes, 6) Administration of flu vaccines by pharmacists, 76 The author ed the department twice regarding the inconsistency, but the department never responded. 48

49 7) Local health departments (which are required to enforce immunization laws and ensure that all children in their jurisdiction get the required immunizations), 8) Flu shot requirements for staff of adult and family care homes, 9) Vaccines at mental health facilities, 10) Physicians requirement to report adverse events, 11) Veterinary vaccines (including records concerning livestock and pets), 12) State personnel s administrative leave where the absence is due to a smallpox vaccine adverse reaction, 13) The State Health Director s authority to suspend temporarily any portion of the vaccine requirements due to emergency conditions such as the unavailability of vaccine; and 14) The explicit exclusion of a personal belief or philosophy of a parent or guardian not founded upon a religious belief as qualifying for a religious exemption to the immunization requirements. 77 Specific administrative regulations will vary from state to state. Generally, regulations may not exceed the boundaries of the law as stated in the governing statutes the regulations merely provide implementation and enforcement components to, and within the bounds of, the governing statutory law. For example, the language in the regulation in example 14 above is not in the religious exemption statute, but it is not inconsistent with the statute, either. It may have been drafted to provide additional clarity for the benefit of those state employees whose duties involve processing exemption claims, or perhaps to 77 10A NCAC 41A.0403 Non-Religious Personal Belief No Exemption. North Carolina Justice Building in Raleigh, NC 49

50 help minimize the total number of vaccine exemption claims generally. D. State Courts and State Precedent State courts are organized differently from state to state, but all states have some system of so-called lower (trial) and upper (appellate) courts. However organized or labeled, each state has an appellate court or courts that issue published opinions serving as binding legal precedent for the lower courts in that state. On occasion, one states appellate cases may serve as persuasive precedent for other states, but where this concerns interpretation of codified law, the relevance may depend on the specific wording and rights in each states statutes. For example, Maryland permits inquiry into the sincerity of a religious belief that is the basis of a vaccine religious exemption claim, but Wisconsin does not. Therefore, Maryland precedent about what constitutes a sincerely held religious belief would be of little relevance to religious exemption claims in Wisconsin. Most states have little or no state precedent pertaining to vaccine religious exemptions specifically, which suggests either that disputes are infrequent, or that few people involved in disputes have the resources to pursue an appeal of a lower court s ruling. 78 However, those states whose appellate courts have addressed vaccine exemption issues in recent years have generally followed the precedent from the New York federal district courts and the Second Circuit, which suggests that this precedent is very persuasive despite being non-binding on those other states. As to those states outside of the Second Circuit with little or no appellate case law of their own, the ab- 78 Appeals can be costly emotional and financially, and can take months or years to reach conclusion. 50

51 sence of binding precedent leaves them in a condition of legal uncertainty with regard to many specific situations. For example, North Carolina has only one appellate case concerning religious exemptions to immunizations. In that case, parents who had lost custody of their children to the state but who had not lost their parental rights were denied the ability to declare a religious exemption from immunizations for their children. Because this case involved an uncommon situation, it provides little guidance for North Carolina courts regarding vaccine religious exemptions generally, and so North Carolina residents like residents of most other states are left with arguments supported by persuasive legal precedent from other jurisdictions rather than the clarity in the law that comes from binding legal precedent from their own state or federal courts. (What was made clear from the North Carolina case is that unfitness, neglect, abandonment and other types of conduct as determined on a case-by-case basis may prevent parents from exercising a religious exemption from vaccinations for their children in North Carolina. 79 ) Some recent state court opinions on vaccine exemptions (mostly religious) are summarized below, in chronological order. Even though the precedential value of any given state court opinion to other states may be limited for the reasons noted above, these cases nevertheless provide insight into how courts may respond in the future to these kinds of vaccine disputes. STATE COURT OPINIONS 1) Religious exemption statutes were struck down in state courts after being ruled unconstitutional 79 In Re Stratton, 153 N.C. App. 428, 571 S.E.2d 234 (2002). 51

52 and severable in Massachusetts in 1971, 80 Mississippi in 1979, 81 and Maryland in 1982, 82 due to requirements involving church membership. Massachusetts and Maryland have since passed revised religious exemption laws. The same thing happened in Arkansas federal district court in 2002; Arkansas now has both philosophical and religious exemptions. The 1979 Mississippi ruling is particularly noteworthy. Mississippi s State Supreme Court held that under the U.S. Constitution, a religious exemption violates the equal protection clause of the Fourteenth Amendment because it discriminates against the great majority of children whose parents have no such religious convictions. This ruling is an anomaly, inconsistent with subsequent 80 Dalli v. Board of Education, 358 Mass. 753, 267 N.E.2d 219 (1971). 81 Brown v. Stone, 378 So.2d 219 (Miss. 1979). 82 Davis v. State, 294 Md. 370, 451 A.2d 107 (1982). state and federal court rulings. The underlying rationale may be flawed, if intended to mean that an unvaccinated child puts vaccinated children at risk if vaccines work, how could that be? In any event, this case remains good law in Mississippi unless and until it is overruled by the Mississippi State Supreme Court or a federal court, or the state constitution is amended in a manner that would allow the exemption. Until such unlikely occurrences, Mississippians may not have a religious exemption at all. 2) In a 1980 Maryland case, a religious exemption claim ultimately failed when the court ruled that the claimant s beliefs in opposition to the immunization requirements didn t rise to the level of being truly religious for exemption purposes. 83 This case serves as a good point of reference for the 83 Syska v. Montgomery Co. Bd. Of Educ., 45 Md. App. 626, 415 A.2d 303 (1980). 52

53 distinction between beliefs that qualify for religious freedom protection and those that don t. In this instance, the testimony of the person claiming the exemption included concerns about the compulsory nature of the requirements and possible harm to her child from the vaccines, and the court was ultimately not convinced that her beliefs were deeply held moral convictions which must rise to the level of exercise of religion. Citing the 1905 Jacobson U.S. Supreme Court case, 84 the Maryland court noted, the liberty secured by the Constitution of the United States to every person within its jurisdiction does not import an absolute right in each person to be, at all times and in all circumstances, wholly freed from restraint. In other words, Maryland s religious exemption statute requires convictions that are clearly deeply held religious beliefs. 84 See footnote 4 above. 3) In a 1987 Arizona case, the state s right to exclude non-immunized children from school amidst a local outbreak was upheld, even though there were no infected children in the excluded children s school. 85 This case illustrates the common yet arguably erroneous belief that non-immunized children pose a significant threat to immunized children. Of course, if vaccines work, how could a non-immunized child pose any risk to an immunized child? Indeed, most infectious disease now occurs in vaccinated children, according to the CDC, 86 so the case could be made that vaccinated children pose a risk to unvaccinated children. 4) In a 1992 New York case, a religious exemption was denied where the court believed that the 85 Maricopa County Health Dept. v. Harmon, 156 Ariz. 161, 750 P.2d 1364 (1987). 86 Centers for Disease Control and Prevention, Vaccines and Immunizations, Misconception #2. The majority of people who get disease have been vaccinated, 53

54 claimant s beliefs were not sincerely held. 87 Quoting a previous federal court case, the New York court noted that to qualify for the exemption, the beliefs had to stem from religious convictions and... not merely... [be] framed in terms of religious belief so as to gain the legal remedy desired. This case is particularly instructive. The court opinion compares previous cases in which beliefs both did and did not rise to the level of sincerely held for legal exemption purposes, and provides the means by which that analysis was made. In this case, the testimony of the person claiming the exemption focused on medical and scientific concerns to such an extent that his references to religion appeared to the court more as afterthoughts than as the root of the objections. 5) Another 1992 New York case concerned a severely disabled child whose parents believed that the child s disability was caused by the polio vaccine. The child was denied a medical exemption, despite the parents having obtained the required recommendation of a medical doctor. The court s decision was influenced by the lack of medical literature contraindicating vaccines for this child s particular medical condition. However, the court was not evaluating the scientific evidence to see which side was scientifically correct in their assessment of the risk of further vaccination for the child. Rather, the court s role was limited to that of determining whether or not the state had a rational basis for its position, if the state had abused its discretion, and whether or not the state s actions had risen to a level of being arbitrary or capricious. 88 Under these legal standards, 87 Matter of Christine M., 157 Misc. 2d 4, 595 N.Y.S.2d 606 (N.Y.Fam.Ct. 1992). 88 Lynch v. Clarkstown Cent Dist, 155 Misc.2d 846, 590 N.Y.S.2d 687 (1992). 54

55 the state proved its case and the exemption was denied. 6) In a 1998 Florida case (an exception to the exhaustion doctrine mentioned above; this case bypassed administrative proceedings and went straight to state court), the court found the Department of Health had exceeded its authority in questioning the religious exemption claim. 89 The unambiguous Florida statute did not give the state authority to question religious exemption claims. 7) In a 2001 Wyoming case, the court held that the Department of Health exceeded its authority by inquiring into the sincerity of the applicant s religious beliefs, since the unambiguous language of the statute did not allow the inquiry. 90 As with the preceding Florida case, the underlying legal principle in this case was that unambiguous language in a statute is generally given its ordinary, plain language meaning. 8) Another 2001 Wyoming case concerned a medical exemption. The court found that the Department of Health had exceeded its authority in denying the exemption to a middle school student by requiring more health information from his parents than the unambiguous statute required. 91 Like the preceding religious exemption case, Wyoming does not have discretion to scrutinize medical exemption claims, once a licensed physician makes the recommendation. This stands in stark contrast to the New York case in 5) above. 89 Department of Health v. Curry, 722 So.2d 874 (Fla.App. 1 Dist. 1998). 90 LePage v. State, 2001 WY 26, 18 P.3d 1177 (2001). 91 Jones v. State Dept. of Health, 2001 WY 28, 18 P.3d 1189 (WY 2001). 55

56 9) In a 2001 New York case, the court held that the religious exemption applies to both private and public schools. 92 However, the applicability of religious exemptions to private and religious schools may vary from state to state depending on the wording of each state s laws. 10) In a 2002 Georgia case, when custody of a legally deprived child was given to a grandmother and the grandmother had been ordered to obtain medical care and treatment for the child as deemed necessary by a licensed physician, the mother could not exercise a religious exemption for her child ) In a 2002 North Carolina case, parents whose children were adjudicated neglected and dependent were not able to exercise a religious exemp- tion to immunizations for their children. The Department of Social Services was deemed to have legal custody of the children, and thus by statute, had the responsibility to ensure that the child has received the required immunization at the required age [N.C.G.S. 130A-152]. 94 Note how this contrasts with the next case. 12) In a 2007 Arizona case, the parent of a child adjudicated dependent (Child Protective Services had taken custody of the child) retained the right to exercise a religious exemption to immunizations for the child. 95 This result came from the court s strict interpretation of the applicable state codes. Note how this contrasts with the previous two cases. 92 Bowden v. Iona Grammar School, 284 A.D.2d 357 (2001), 93 In Re C. R., 257 Ga. App. 159, 570 SE2d 609 (2002). 94 In re Stratton; 153 N.C. App. 428, 571 S.E.2d 234 (2002). 95 Diana H. v. Rubin, 171 P.3d 200 (AZ 2007). 56

57 13) In a 2008 New York unpublished opinion (which means it is not supposed to serve as formal legal precedent), a mother s religious beliefs were found to be religious and sincere, and her exemption for her children allowed, despite the children having been placed in the custody of the county social services agency as a result of the mother s improper care that included such things as directing the children to shoplift on a regular basis. 96 It is interesting that the mother s religious beliefs dictated the outcome even though social services had custody of the children. Compare this to the last two cases. 14) In a 2011 unpublished opinion, the court was not convinced the parents beliefs were religious in nature, when they had expressed concern about the safety of immunizations. 97 The court said the mother had real concerns, but that they were health concerns rather than genuine and sincere religious beliefs. 96 In the Matter of Nassau County Dept. of Social Services v. R.B., 870 N.Y.S. 2d 874, 23 Misc.3d 270 (Family Court, Nassau County, NY 2008). 97 Polydor v. Kellenberg Memorial High School, No , Supreme Court, Nassau County, September 1,

58 PART II I. PRIVATE SCHOOLS AND DAYCARES [Note: PART I of this e-book is a prerequisite to this section.] There is often confusion as to whether or not private schools and daycares have to honor vaccine exemptions. The answer varies from state to state, depending on the language of individual state laws. Two examples follow to illustrate this point. In April of 2006, the Texas State Attorney General issued a formal opinion stating, in relevant part: A private school that does not accept state tax funds is not required to accept for enrollment a child who has received an exemption from the immunizations required by the Texas Health and Safety Code. 98,99 The Opinion noted that Texas has immunization requirements and exemptions in its Health and Safety Code, and separately in Texas Education Code, which is where immunizations required for schools are addressed. The Education Code requires the Texas Department of State Health to formulate immunization requirements for students admitted to both public and private schools, but not exemptions. The education code provides for exemptions for public schools, but not private schools. The Attor df/ga0420.pdf 99 The reference to state tax funds may be because a private entity that accepts government funds may thereby open the door for Constitutional rights to apply to a private entity that would not otherwise apply. 58

59 ney General concluded, therefore and in effect, that the exemption under the Health and Safety Code would not apply to enrollment in private schools. On the common sense level, it seems contradictory that one could have an exemption right generally under one area of the law (TX s Health and Safety Code) that would not be applicable throughout the state, but unfortunately, law is often not that simple. Many times, unintended consequences arise from the wording of laws that have to be dealt with later. Texas residents concerned about this problem may wish to lobby their representatives for a change in the law. It is ironic that a religious exemption would not be allowed for a child enrolling in a religious school. In contrast, North Carolina s primary immunization exemption law is contained in a single section of the state s General Statutes in a Chapter titled Public Health, and not in the state s education code. The statute does not make a distinction between public and private schools, and so arguably applies to both equally. This position is not simply a common sense conclusion, but one that also follows from what are called statutory construction rules, rules that tell us how to interpret statutes. While the specifics of these rules vary from state to state, common principles include the idea that proper interpretation is one that is consistent with the legislature s intent in enacting a statute, and that the legislature s intent is clear by the plain language meaning of any unambiguous statute. However, the location of a statute within the statutory code may also be key. If a religious exemption law is contained in a statutory chapter on public schools, that may indicate that the exemption applies only to public schools, whether the statute itself says so or not. 59

60 A related question is whether or not federal First Amendment rights apply. The federal Constitution originally applied only to the federal government. Due to the 14 th Amendment s due process clause, the so-called fundamental rights of the Bill of Rights have been held by the Supreme Court to apply to the state and local governments. But the Constitution does not apply, at least as a starting point, to private entities. So, the free exercise of religion guaranteed by the First Amendment may not apply to private schools, even though state law rights may still apply. However, where private entities accept government funding, the Constitution may be held to apply to the private entity, which may be why the Texas State Attorney General s Opinion noted that private schools accepting state funds would have to accept students declaring a religious exemption. So, the answer to the question about the applicability of religious exemptions to private schools may depend on the specific wording and organization of each state s statutes, and the applicability of First Amendment rights may depend on whether or not the private institution accepts government funding. See also the N.Y. state case in the state legal precedent section above that held that the New York religious exemption law applies to public and private schools. 60

61 II. IMMIGRATION AND FOREIGN ADOPTION [Note: PART I of this e-book is a prerequisite to this section.] An immigration attorney once told me he had consulted other immigration attorneys and was of the impression that it was all but impossible to get immigration waivers approved. However, to the best of my knowledge, I ve never had a client whose waiver was rejected. While I can t guarantee anyone s success the USCIS has discretion to accept or reject waiver applications I conclude from this that it is important to give USCIS officials exactly what they need to see, and in the way they need to see it, to maximize your chances of success. Researching the regulations is a necessary starting point, but much more is needed. For one thing, the USCIS manual tells the USCIS, when processing vaccine waiver applications, to look for more than what the regulations tell applicants is needed. For another, regulations can t tell you how to write a legally sound statement of religious beliefs. As noted above in the section on federal administrative law, immigrants, including children being adopted from a foreign country, need to apply for a Waiver of Grounds of Inadmissibility. This is usually done with USCIS Form I-601, though applicants for adjustment of status under section245a or 210 may need to use form I A separate form and application fee is required for each immigrating family member who is required to get immunizations. Each applicant (or their parents, if the applicant is a minor child) must also show that he or she is opposed to vaccines in any 100 See the FORMS section of the USCIS website at for forms, instructions, and fee information. 61

62 form due to religious beliefs or moral convictions, and that the beliefs or convictions are sincere. This requires a sworn statement (an affidavit, or notarized statement), and should be accompanied by supporting documentation, if any, such as evidence of religious exemptions claimed previously; other documents showing past refusal of immunizations; or affidavits from associates, friends and/or relatives corroborating the applicant s beliefs and non-vaccination history. The wording of I-601 affidavits is critical and can make or break the application. Specific guidelines for how to do this are not included here, since in the author s experience, finalizing the wording requires an interactive process between attorney and client to produce effective documents. So, with immigration waivers, working with an attorney experienced with I-601 vaccine waivers and a history of success is highly recommended. The phrase moral convictions in USCIS regulations does not create a separate philosophical basis for waiving the immunization requirements. Rather, it is based on law that defines the scope of First Amendment protection for religion that includes beliefs outside of orthodox religious beliefs. The waiver does not apply to just any sincerely held belief. As explained above in Part I, interpreting the law generally requires reviewing legal precedent. With I-601 waivers, beliefs that fall within the scope of acceptable according to USCIS policy and applicable legal precedent are the ones most likely to succeed. They are also the ones easiest to defend if you are improperly rejected, which does sometimes occur. Legal precedent does not support a philosophical basis for USCIS vaccine waivers. 62

63 III. EMPLOYEES AND COLLEGE STUDENTS IN HEALTHCARE CURRICULUMS [Note: PART I of this e-book is a prerequisite to this section.] Healthcare workers and other employees are increasingly required to obtain vaccines as a condition of employment. College students in healthcare curriculums that require clinical work in local hospitals or other healthcare facilities are required to get vaccinated, as a condition of completing their clinical work and degree or certification, by those hospitals or other healthcare facilities, and state exemption laws will not help with hospital-mandated vaccines like they will for vaccines required for college or university enrollment generally. However, there are federal laws, and some state laws, that support employees and students right to refuse the vaccines if they have religious objections to the vaccine requirements. See Part I for information about what beliefs qualify for religious exemptions generally. However, working with an experienced attorney is highly recommended for putting together a legally sound statement of beliefs, which will very likely be necessary for those dealing with employers and clinical rotations in healthcare facilities. With employees, vaccines are usually a hospital requirement that does not involve a state law, though state legislatures are increasingly pushing to enact laws requiring vaccines for healthcare workers and other employees. 101 So, there is usually not a state exemption law that ap- 101 See the National Vaccine Iinformation Center s Advocacy Portal at for a list of current vaccines bills in states around the country. You are strongly encouraged to join the Portal to lend your help to oppose provaccine legislation and support pro-vaccine-informed-choice legislation. 63

64 plies. Either way, though, Title VII of the 1964 Civil Rights Act provides a potential legal basis for refusing workplace vaccines for those with religious objections. What qualifies is very broad, but there are pitfalls to avoid. As noted above, Title VII requires qualifying employers to reasonably accommodate their employees religious beliefs. If the employer can accommodate an employee s religious beliefs and practices without causing undue hardship to the employer s business, the employer must do so. This same law arguably applies to college students doing clinical work in local healthcare facilities as well, since it is unlawful for employers controlling apprenticeship or other training or retraining, including on-the-job training programs to discriminate against any individual because of his... religion... in admission to, or employment in, any program established to provide apprenticeship or other training. 102 The Title VII argument favoring the hospital employee with a religious objection to immunizations seems pretty straightforward: The widely accepted herd immunity theory tells us that so long as most members of a population are immunized, the entire population is protected. So, as long as only a small percentage of hospital employees are refusing vaccines, none of them poses a significant risk to the employer s business, and the employer therefore must accommodate the employee s religious beliefs. If fact, official data suggests that the number of non-immune vaccinated people far outnumber the number of exempt people (since vaccines don t work in all U.S.C. 2000e-2(d). 64

65 recipients), 103 and the CDC admits that most outbreaks occur in vaccinated people. In the fall of 2012 and early winter of 2013, I worked with some 150 healthcare workers in 26 states, and have learned that if the exemption is approached properly, employees can usually get the exemption. It may be difficult to do without an attorney s help, though. Some clients report hospital administrators bragging that they approved only a tiny percentage 4 exemptions out of more than 1,000 requests in one instance, for example. This may be because the majority of hospitals, in my experience, implement unlawful, overly-restrictive exemption policies; and because most people who write their own exemption statements fall into one or more legal pitfalls that can undermine the exemption right. The law is just not consistent with 103 See Attorney challenges pediatrician s attack on vaccine religious exemptions, March 21, 2012, by Alan Phillips, J.D., at mptions_health_freedom.html. most people s common sense approach to this task, and hospital administrators go out of their way to reject as many exemption requests as they can rationalize. Hospital employees are also often required to get the Hepatitis B vaccine. As noted above, this is not usually a formal requirement, but a recommendation by OSHA, a federal agency. 104 There is an opt-out form that employees can sign to refuse the Hepatitis B vaccine. But it may still be possible for hospitals to require the Hepatitis B vaccine as a matter of company policy, even if OSHA only recommends it. Hospital-employers around the U.S. frequently over-step legal boundaries to deny religious exemptions. They often require support from 104 As a federal agency, OSHA lacks authority to require immunizations of state residents. 65

66 a religious official, in violation of federal legal precedent; reject valid religious beliefs that qualify legally but are not conventional religious beliefs, or mistakenly believe that the law doesn t apply to them if they are a private hospital. In fact, a small number of hospitals reject all religious exemptions, period. So, there is widespread inconsistency in the recognition and application of Title VII rights in this area. For these reasons, employees are wise to seek legal assistance before requesting an exemption from an employer if the employer s policy is an unlawful one. Where students are concerned, there are usually state laws that allow exemptions for the classroom, but the schools hands are tied when it comes to students doing clinical work in local hospitals, as the immunizations required there are based on hospital policy. Schools contract with local hospitals to provide vaccinated students, so have to leave it is up to the hospitals to determine whether or not an exemption can be allowed there. As with employees, most hospitals take a hard line against exemptions and appear not to understand students rights under federal law, so students would be wise to seek the help of an attorney knowledgeable in this area to maximize their chances of success. With both employees and students, the starting place is to ask what the employer s exemption policy is, so you can determine whether or not they have an exemption policy, and if so, whether or not it oversteps legal boundaries. Once you determine what the policy is, then you can determine what you need to do to exercise your rights, and whether or not you may need an attorney to assist you. 66

67 This is an area where it is necessary to state what your beliefs are that are opposed to the immunizations. Since there are legal pitfalls to avoid anytime that s the case, it is best to learn about what does and doesn t qualify for the exemption. Reviewing the legal precedent in Part I above is a good starting place. State and federal Religious Freedom Restoration Acts (discussed above) or similar legislation may apply in some instances with government employers and public schools. When that s the case, it may bolster the Title VII arguments. To the best of my knowledge, there is no legal precedent applying Title VII to an employee s or students religious objection to immunizations specifically, except for one case in which the court made a preliminary decision that the nurse plaintiff s being a vegan could, potentially, qualify as a protected religious belief. This was based on language in Title VII that states that protected religious beliefs include non-theistic moral or ethical beliefs as to what is right and wrong which are sincerely held with the strength of traditional religious views, ultimate ideas about life, purpose, and death. That is, you could potentially be an atheist and still have protected religious beliefs under this federal law. But given the lack of legal precedent, the application of Title VII to religious objections to vaccinations in the workplace is still technically unsettled law and subject to debate in some respects. Attempts to frame vaccine safety and effectiveness issues as religious beliefs are almost certain to fail, despite the moral and ethical beliefs language in the law. Like any other situation where you need to state or explain your beliefs, it is best to take precautions to ensure that your beliefs qualify legally and avoid the legal pitfalls, since it s pretty difficult to go back and fix 67

68 your beliefs once they ve been submitted and rejected. If your request for an exemption with an employer or hospital in which you are to do clinical rotations as a college student is ultimately rejected, you can t sue over the matter even if you want to, unless you first submit a charge, or complaint, to the Equal Employment Opportunity Commission (EEOC). The EEOC is a federal agency whose job includes enforcing Title VII and other anti-discrimination laws. The good news is that it costs nothing to file a charge, and the EEOC has authority to investigate, to negotiate a settlement, or even sue an employer. However, the EEOC is a federal agency, so it can take a few weeks for the process to get started, and many more for it to play out, depending on the situation. Also, this point in time, some vaccine disputes may be difficult for the EEOC to resolve, since there s little legal precedent providing clear legal boundaries at this time. IV. INTERNATIONAL TRAVEL By definition, international travel involves the jurisdiction or two or more countries, so vaccine requirements cannot be controlled by the law of any one country. There is no U.S. law that can tell us what vaccines are required, or what exemptions would apply, to international travel. Instead, 68

69 International health concerns are governed by the World Health Organization s International Health Regulations (2005), or IHR, a legally binding instrument of international law. These regulations govern the role of the WHO and its member nations 105 to prevent, protect against, control and provide a public health response to the international spread of disease in ways that are commensurate with and restricted to public health risks, and which avoid unnecessary interference with international traffic. 106 The U.S. officially accepted the revised IHR in 2006, and these regulations officially took effect in There are 193 WHO nation members. There are about 195 countries in the world. The precise count varies depending on what political entities are recognized by whom as being a country. 106 IHR art. 2. See also While international cooperation is clearly needed to address international concerns, this instrument concentrates considerable authority over most of the world s inhabitants in the hands of a relative few. According to the CDC, the only vaccine required by the IHR for international travelers is the yellow fever vaccine, for persons traveling to and from certain countries in sub-saharan Africa and tropical South America. 107 The only recognized exemption is medical. The CDC lists additional Routine and Recommended vaccines, but distinguishes these from the one Required vaccine for foreign travelers. However, this does not preclude individual member nations from requiring additional vaccines should conditions be deemed to warrant them. The IHR requires consent for vaccination, 108 so vaccines can t be compelled on an unwilling recipient absent evidence of an imminent public See also IHR Annex 7, REQUIREMENTS CONCERNING VACCINATION OR PROPHYLAXIS FOR SPECIFIC DISEASES. 108 See IHR art. 23, para

70 health risk. 109 Whether or not this may reasonably be interpreted to mean that vaccines could be physically forced upon an unwilling recipient is not entirely clear, but it is clear that a traveler may be denied entry into a country if health authorities deem vaccines necessary and a traveler refuses to consent to them. Furthermore, the IHR requires that travelers who must be vaccinated shall be informed of any risk associated with vaccination or with non-vaccination and with the use or non-use of prophylaxis in accordance with the law and international obligations of the State Party. 110 The IHR also provides for suspect persons be quarantined IHR art. 31, para IHR art. 23, para The IHR defines suspect as those persons, baggage, cargo, containers, conveyances, goods or postal parcels considered by a State Party as having been exposed, or possibly exposed, to a public health risk and that could be a possible source of spread of disease. IHR Part I, Definitions The IHR recognizes the need for sensitivity on the part of health authorities: State Parties shall treat travelers with respect for their dignity, human rights and fundamental freedoms and minimize any discomfort or distress associated with such measures The IHR also requires that minimally invasive measures be used to achieve any necessary public health end. But that level of sensitivity would not necessarily prevent a vaccine from being required if ultimately deemed necessary to address a serious local health threat or risk. The U.S. may quarantine sick or exposed persons coming into the U.S. under federal law 113 as well as the IHR. Accordingly, international travelers should realize that successfully avoiding vaccines at the outset of a trip does not necessari- 112 IHR art CFR 71.1 et seq. 70

71 ly mean that vaccines won t be an issue during the return trip, and that quarantine may be an issue for non-vaccinated persons. Vaccine recommendations are sometimes represented as being requirements in a variety of different contexts. Travelers who are told that vaccines are required (or who fear that they may be told so along their journey) may wish to consider arming themselves with a copy of the IHR with relevant sections highlighted, and a written statement of religious objections, if applicable. While international law does not appear to recognize religious objections to immunizations, this may nevertheless inspire local officials to give greater consideration to your concerns, and possibly help avoid a fruitless debate about the merits of vaccination. V. EMERGENCIES: FROM LOCAL OUTBREAKS TO PANDEMICS [Note: PART I of this e-book is a prerequisite to this section.] Rights can change, sometimes dramatically, in the event a local, regional, national or international infectious disease outbreak or emergency. Such situations may trigger emergency vaccine requirements, affect routine exemption rights, and impose consequences for refusing vaccines different from those in non-emergency situations. The most common of these situations concerns local childhood infectious disease outbreaks. The CDC defines outbreak as when the 71

72 observed number of cases exceeds the expected number. In recent years, this has meant that a single case of chickenpox qualifies as an outbreak, where larger numbers were required in decades past. Reportedly, authorities have even declared an outbreak before a single suspected case has even been confirmed. Once an outbreak or emergency is declared, though, laws pertaining to outbreaks take effect, whether the outbreak or emergency turns out to have been genuine or not. This was seen in a rather disturbing way during the so-called swine flu pandemic of Eleven U.S. states declared swine flu emergencies Virginia without documenting a single case of swine flu anywhere in the state and President Obama declared a national emergency. However, the swine flu turned out to be far less virulent than the seasonal flu. This did not prevent emergency laws from taking effect, however, since the emergency declaration, and not the actual reality, is what determines our rights. Most states have laws that allow emergency vaccines to be required without allowing routine exemptions, and for the quarantine of unvaccinated persons in government facilities against their will. This presents a critical legislative agenda item. 114 The Jacobson case discussed above supports the states right, under the states police powers, to enact laws that require immunization of everyone physically fit to be immunized during local outbreaks. Since the Constitution does not require religious or philosophical exemptions, states may enact laws requiring exempt persons to be vaccinated during a local outbreak or other infectious disease emergency such as an imminent threat of biological warfare attack. While specific laws will vary from state to state, most states 114 For more on this, see the Pandemic Response Project at 72

73 probably require exempt children to stay home from school in the event of a local outbreak, for a period of time equal to the incubation period of the disease in question. 115 This is required even if the outbreak occurs in vaccinated children, which is most often the case according to the CDC. 116 This raises an interesting question about whether or not the state s obligation to provide a public education is technically suspended during the incubation period. That is, does the state still have an obligation to provide instruction for unvaccinated children while they are excluded from school, when their exclusion is due to their lawful exercise of a statutory right to refuse immunizations? This question is legally undetermined at this time to the best of my knowledge (that is, there is no legal precedent on this point). Jacobson would support a state law requiring persons exempt under religious and philosophical exemptions to be vaccinated in the event of a local outbreak, despite those exemptions, so states laws that require only that exempt children stay home may actually represent some degree of restraint on the part of the state. Laws will vary from state to state, so you should review your state s laws to find out your options in advance and be prepared to have a child home for a few weeks when the inevitable chicken pox or other local outbreak occurs, if your child is exempt. The bottom line is that exemption rights are not absolute they may be subject to being overridden by the state when, in the discretion of state health officials, conditions warrant doing so to the extent that state laws provide for this. 115 E.g., 21 days in the case of chicken pox. 116 See footnote 103 above. The more severe hypothetical situation is one involving threats concerning biological war- 73

74 fare threats or attacks, and emergency infectious disease epidemics or pandemics. These may involve any one or a combination of local, state, national, and international agencies and authorities. At the state level, most states have enacted one version or another of the Model State Emergency Health Powers Act (MSEHPA), proposed state legislation published by The Center for Law and the Public s Health at Georgetown and John Hopkins Universities for the Centers of Disease Control in December of 2001, three months after the September 11, 2001 World Trade Center 9/11 event. While actual laws vary from state to state, 117 the Model Act would grant states the authority, in a declared emergency, to vaccinate persons as necessary and to treat persons exposed 117 See the Center for Law & Public Health s Legislative Surveillance Table, nce.pdf or infected (unless reasonably likely to cause serious harm); to isolate or quarantine persons unable or unwilling for reasons of health, religion or conscience to undergo vaccination or treatment, by the least restrictive means necessary without notice if necessary; and to establish and maintain places of isolation and quarantine, set rules and make orders, the violation of which would be a criminal misdemeanor. The Act would also require the state to immediately release persons when they no longer pose a substantial risk, but this determination would be made by local health authorities, possibly in conjunction with state, federal and/or international authorities, depending on the specific situation and what jurisdictions were involved. While the Act recognizes that objections to emergency vaccine mandates for philosophical and religious reasons may occur, during emer- 74

75 gencies, those who are medically exempt or who refuse vaccines may be subject to isolation or quarantine, and in locations of the state s choosing. It is noteworthy that the Act would require states to use the least restrictive means necessary. This may be one possible basis for objecting to quarantine being required in a state facility vs. one s home, in states whose laws include least restrictive language. This is language similar to that used in state and federal Religious Freedom Restoration Acts, so where such laws may apply, RFRA s might be used to argue that isolation or quarantine be allowed in one s home, absent a compelling reason why this should not be allowed, even if least restrictive language does not occur in emergency health law. But ultimately, a court would probably have to decide this on a case-by-case basis if local authorities or emergency health laws conflict with a citizen s wishes. The American Civil Liberties Union (ACLU) has criticized the MSEHPA for failing to include basic checks and balances, going well beyond bioterrorism, and lacking privacy protections. 118 The language employed is sweeping, and many of these criticisms provide strong arguments for modifying any state laws with language that closely tracks the more problematic sections of the Model Act. The CDC s Fact Sheet on Legal Authorities for Islation/Quarantine 119 has a good introductory explanation of the interplay between local, state and federal authorities during infectious disease emergencies. For example, states have primary authority for matters within their borders, while the federal government s primary authority concerns the interstate spread of disease and preventing

76 diseases from coming into the U.S. from foreign countries. However, the HHS [federal Health and Human Services] Secretary may accept state and local assistance in the enforcement of federal quarantine regulations and may assist states and local officials in the control of communicable diseases. So, the lines of jurisdiction and authority may blur in the event of actual emergencies it appears that government authorities on any level may ultimately be involved in matters of their own or any other level or jurisdiction. Finally, matters of international concern are governed by the World Health Organization s International Health Regulations (2005). The purpose and scope of these Regulations are to prevent, protect against, control and provide a public health response to the international spread of disease in ways that are commensurate with and restricted to public health risks, and which avoid unnecessary interference with international traffic and trade. 120 There are regulations requiring State Parties to create IHR Focal Points to communicate with WHO IHR Contact Points, and regulations pertaining to surveillance, notification, information-sharing, determination of a public health emergency of international concern, and public health response. There is a list of possible recommendations that includes: require vaccinations or other prophylaxis, implement quarantine or other health measures of suspect persons, and implement isolation and treatment where necessary of affected persons. Potential IHR recommendations for baggage and cargo include implement isolation and quarantine and seizure and destruction of infected or contaminated or suspect baggage, cargo, containers [etc.] under controlled conditions if no available treatment or process will otherwise be successful. 120 IHR art

77 Other IHR regulations address points of entry from one country to another such as ports, airports, and land border crossings. VI. FAMILY LAW: VACCINES IN CHILD CUSTODY DISPUTES AND PARENTAL RIGHTS [Note: PART I of this e-book is a prerequisite to this section.] A. CHILD CUSTODY DISPUTES When parents separate or divorce and disagree about whether or not to vaccinate the children, pro-vaccine parents have a significant advantage unless the pro-exemption parent knows the legal arguments favoring their position. In my experience, family law attorneys and judges are not familiar with the legal arguments favoring pro-exemption parents. So, it is advisable to involve not only a local family law attorney, but also a vaccine rights attorney familiar with these arguments. Circumstances vary widely in custody cases, and each must be looked at individually to determine the strengths and weaknesses of each parent s case. Therefore, this section can provide only general information about the vaccine component. How that fits into a larger custody dispute is a matter that should be addressed with an experienced family law attorney. Meanwhile, here is 77

78 a summary of the analysis favoring the proexemption parents. 1. Think Outside the Box: Vaccine Disputes are Not Like Other Custody Disputes *cant * rule on vaccine custody disputes according to a best interests of the child standard. But if you don t raise the proper legal arguments at the proper time, the pro-vaccine parent is very likely to prevail. Most states have a best interests of the child or similar custody standard. What this means is that when a judge resolves a parental dispute about the kids, the judge looks at the evidence and rules according to what her or she believes is in the child s best interests. Judges are likely to see vaccine disputes as a no brainer of course the best interests of the child requires that she be vaccinated. So, if you approach vaccine disputes in custody cases as a health matter under a best interests standard, the pro-vaccine parent is very likely to win. Fortunately, vaccine custody disputes are unique in that there are legal arguments supporting the proposition that judges 2. What NOT to Do Many non-vaccinating parents want to find an alternative medical doctor and have them testify in court as a expert witness about the serious problems with vaccines. As tempting as this may sound, this strategy is likely to fail for two reasons. First, legally, vaccines are reasonably safe and effective, regardless of what the objective reality may ultimately be. When state legislatures enact vaccine mandates, they are presumed to have considered whether or not vaccines are reasonably safe, effective and necessary. The en- 78

79 actment of the vaccine statutory mandate, then, comes with a legal presumption that vaccines are reasonably safe and effective. State legislatures would not have enacted laws requiring vaccines if they were not reasonably safe, effective and necessary. That doesn t mean that vaccines are, in reality, reasonably safe, effective and necessary, only that legally, they are presumed to be. Theoretically, you could attempt to rebut this presumption in court, but since the CDC, state health agencies and most doctors favor vaccines, you aren t likely to win such a fight. Courts don t generally decide the science, they weigh the evidence; and the expert testimony will continue to favor vaccines until such time that the underlying corruption in the vaccine industry and government health agencies is finally exposed. In the meantime, we may disagree with the presumptions, but if we do, we must take that concern to our state legislatures. Arguably, courts can t even hear evidence about whether or not vaccines are safe and effective at all. According to the U.S. Supreme Court in Jacobson, courts can t second-guess state legislatures. 121 That s reasonable, since for the most part, a court s job is to apply the law to the facts in each case, and not to question, change, or overrule the law. In addition, judges are reluctant to rule against vaccines because of the possible fallout for them, personally and professionally that is, for political reasons. They fear that a child unvaccinated due to their ruling may later suffer harm from an infectious disease or spread a disease to someone else, and they may be accused of being responsible. So, you have to give a judge a pretty good reason to rule in favor of the pro-exemption parent if you want that parent to win. 121 See, e.g., Jacobson v. Mass., 197 U.S. 11; 25 S. Ct. 358; 49 L. Ed. 643 (1905) 79

80 3. But Wait It s Not About the Health of the Child! Interestingly enough, the same logic that says the safety and necessity of vaccines can t be second-guessed by the court also applies favorably to vaccine exemptions. Specifically, the state legislature would not have enacted vaccine exemption statutes if exercising an exemption would pose a significant risk of harm to the exempt person or others. Accordingly, there is a legislative or legal presumption that the exercise of an exemption does not pose a significant health risk to the exempt child or anyone else. Considering that all but two states have enacted philosophical and/or religious exemptions, state legislatures have overwhelmingly agreed that exercising an exemption does not pose a significant health risk. Further underscoring this position are: 1) States have taken additional steps to ensure that the exercise of vaccine exemptions won t pose a significant health in the future by enacting laws that require unvaccinated children to stay home from school in the event of a local outbreak; 122 2) Most states have laws that can override exemptions in a declared emergency; 3) States are not required under the U.S. Constitution to offer a religious exemption, yet all but Mississippi and West Virginia do (since they don t have to offer an exemption, they presumably wouldn t offer one if doing so would risk causing a public health problem); and 4) It is generally the state or local health department s responsibility to determine if and when unvaccinated children pose a risk to anyone at any given future point, and not the job of a judge in a custody dispute to decide that within a custody 122 However, the logic behind these laws is questionable. There are far more non-immune vaccinated children than exempt children. The CDC admits that most outbreaks start in vaccinated populations. See Attorney challenges pediatrician s attack on vaccine religious exemptions at Natural News, mptions_health_freedom.html. 80

81 dispute. Therefore, the issue, for purposes of a custody dispute, is, arguably, not one of health risk to the child or community. 4. Framing the Dispute The strongest legal position may be where the anti-vaccine or pro-vaccine-choice parent is arguing for an exemption for the child, and not just for non-vaccination. There are only two positions regarding required vaccines doing the required immunizations, or exercising a legal exemption. Any other position is not in compliance with the law, and therefore doomed to fail. (If the dispute is over non-mandatory vaccines, there are different arguments that may apply e.g., if the vaccines were truly necessary, the legislature would have mandated them and some of the arguments below relating to religious objections may also still apply.) The next step is to explain that the dispute does not concern the health of the child, as discussed above (or that the health risk is sufficiently small as to be immaterial). The question then becomes one of advantages and/or disadvantages to the child outside of health concerns. As provaccine parents invariably center their arguments around health concerns, they may not have arguments to present if the pro-exemption parent is successful in removing the health-risk concerns from the discussion. This may, therefore, leave the pro-exemption parent with the upper hand. But even if a judge is not convinced that the matter is not a health concern, there are additional arguments that may still win the day. 5. Vaccine Disputes: An Exception to Parents Equal Decision-Making Authority for their Children 81

82 This section provides a legal argument that may apply to parents exercising either a religious or philosophical exemptions. As a general rule, both parents have equal decision-making authority over their children, unless a court orders otherwise. Therefore, a pro-vaccine parent may reasonably argue that they have just as much right to vaccinate the child as the pro-exemption parent has to exempt the child. However, vaccine custody disputes often encompass a unique exception to this general rule. As mentioned above, the role of the courts is to apply the law, they can t overrule the state legislature. But to apply the law, the court must first interpret the law, and people can reasonably disagree about how to interpret laws in some instances. So, states have statutory construction rules that tell the courts how to interpret laws. While the specifics vary from state to state, it is common for such rules to state that statutes are to be interpreted and applied in a manner that fulfills the intent of the state legislature, and that unambiguous statutes are to be given their plain language meaning under the assumption that an unambiguous law states the legislative intent. That is, a clearly worded law means exactly what it says nothing more, nothing less. Proexemption parents can use this to their advantage. Most state exemption laws are written using words or phrases like parent, guardian, and person in loco parentis in the singular. That is, legislatures usually allow exemptions to be exercised by an individual parent. This only makes sense, since not every child has two active parents in their life. So, in most states, the proexemption parent can argue that the legislature intended for one parent to be able to exercise the 82

83 exemption, unilaterally. I ve never seen a state exemption law that adds, unless the other parent disagrees in a custody dispute. Now, if the exemption law allowing one parent to exercise an exemption should conflict with a state law that says both parents have an equal say in the care and custody of their children, statutory construction rules resolve the conflict. Most states rules say that where statues conflict, a specific statute supersedes a general statute. Here, the exemption statute is a specific statute that would supersede, or trump a general custody law granting equal decision-making authority to both parents. So, pro-exemption parents in most states can probably exercise the exemption unilaterally, over the objection of the pro-vaccine parent, under the state s statutory construction rules. Of course, each situation and applicable state laws and rules need to be reviewed to see if this legal argument applies to any given case. But if it does, the court can t properly override the state legislature and rule in favor of the pro-vaccine parent, absent evidence to support a ruling that would remove that parent s right to exercise the exemption for the child altogether Religious Exemptions: Strong Legal Arguments Favoring the Pro-Exemption Parent The U.S. Supreme Court has held, in an opinion that was later cited in a federal district court case about a vaccine religious exemption, that the loss of First Amendment Freedoms, for even minimal periods of time, unquestionably constitutes irreparable injury. 124 So, if the healthrisk question is dispensed with or minimized, the 123 I am uncertain as to whether this would require complete loss of parental rights or only an adjudication that the parent is unfit. The answer may vary from state to state. 124 Berg v. Glen Cove City School Dist., 853 F. Supp. 651, 654 (E.D.N.Y. 1994) (quoting Elrod v. Burns, 427 U.S. 347, 373, 96 S.Ct. 2673, 2689, 49 L.Ed.2d 547 (1976)). 83

84 irreparable harm standard presents a very strong argument in favor of the pro-exemption parent where religious exemptions are concerned. The question becomes one of no harm to the child or pro-vaccine parent if the pro-exemption parent prevails versus irreparable harm to the child and pro-exemption parent if the pro-vaccine parent s position prevails. Viewed this way, a proexemption parent with religious objections to vaccines has a powerful legal argument in a vaccine custody dispute. An additional legal argument concerns the balancing Constitutional rights with state custody standards. As explained in Part I above, federal law is a higher legal authority than state law. Therefore, a parent s First Amendment free exercise of religion right supersedes state law best interests of the child custody standards. That doesn t mean that you can do anything with your child that you want in a custody dispute in the name of religion, but it does mean that courts have to look at a different standard when dealing with religious conflicts in custody cases. Where parents disagree on a religious matter, courts balance the competing federal and state standards, the Constitutional, First Amendment rights vs. the states best interests of the child standards. In general, states must allow the free exercise right to prevail up to the point where doing so causes harm or presents an imminent risk of harm to the child. 125 Where vaccine religious exemptions are involved, there is no imminent risk, for two reasons: 1) Routine vaccines are not administered to address an imminent risk. They are administered to address a hypothetical future risk of harm that 125 In re the Marriage of Weiss, 42 Cal.App.4 th 106 (1996), a California child custody case, reviewed its own and other state cases and found the majority of jurisdictions have a standard allowing the free exercise of religion absent harm or an imminent risk of harm, or a similar standard. 84

85 may result if the vaccinated child is exposed to a disease in the future (since not everyone exposed to a disease contracts the disease, and since nonvaccinated children may develop natural immunity without being vaccinated, and without even necessarily developing symptoms 126 ); and 2) The legislative presumption doctrine addressed above that exercising an exemption is presumed not to create a significant health risk, as a matter of law, as the legislature would not have enacted the exemption statute in the first place if exercising it would create such a risk; and because there are strong back-up measures in place to ensure that no significant risk ever results from an exemption e.g., policy around the nation requires unvaccinated children to stay home during 126 See, e.g., Centers for Disease Control and Prevention, Vaccines and Immunizations, Glossary, Asymptomatic infection: The presence of an infection without symptoms. Also known as inapparent or subclinical infection. outbreaks, and most states have laws that can mandate emergency vaccines without exemptions and/or require quarantine of non-vaccinated persons. 7. Other Vaccine-Specific Considerations There are other parts to the analysis that may come into play in some cases. For example, the court may or may not have authority to scrutinize the exempting parent s religious beliefs, depending on the wording of the applicable law. But even if the wording of the exemption law would not prevent the state from scrutinizing the exemption (or if the judge is inclined to do so despite the law), if there is a history of exemption in which the exemption has been previously accepted, one might argue that the court shouldn t scrutinize a party s religious beliefs now, as that would risk a decision that is in conflict with the state s prior 85

86 acceptance. Finally, laws may give the authority to scrutinize to someone else, such as the school or local health department, in which case you could argue that the court only has authority to determine if that entity did its job correctly, and not the authority to scrutinize the beliefs directly itself. That could require bringing the appropriate official in the courtroom to testify about their prior handling of the exemption, something courts may not want to take the time and trouble to do. In any event, pro-exemption parents should be prepared to state and defend their beliefs in court, as judges often do what they want to and may scrutinize a party s religious beliefs despite a legal argument saying they can t or shouldn t do that. Given the pitfalls to avoid in drafting or stating religious beliefs opposed to immunizations, pro-exemption parents would be wise to get expert counseling about their religious objections to vaccines, to nail down a legally solid statement of beliefs and to be prepared to answer potentially difficult or tricky questions before going in front of a judge or being deposed by the opposing attorney. A history of religious exemption may lend some credibility to present beliefs, but is not an absolute requirement. Reread Part I to get a better understanding of what does and doesn t qualify for a vaccine religious exemption. 8. Possible Questions from Opposing Attorneys and Judges The exempt parent should be prepared to answer questions about the exemption claim. The following is not by any means an exhaustive list of questions a judge or opposing attorney may ask, 86

87 but they are ones that have been or could very well be raised in actual cases: a) Would you give your child a tetanus shot if she stepped on a rusty a rusty nail? This is a damned if you do, damned if you don t question, as it gives the appearance of the parent having to choose between being viewed as not willing to take proper care of her child if she answers no, and showing a lack of sincerity or consistency with the claim of sincerely held religious objections to immunizations, when a religious exemption is involved, if she answers yes. You should avoid vaccines strictly if you want the judge to take a religious exemption claim seriously, so you could respond by saying that you would take all other available precautions and actions first clean the wound thoroughly, apply antibiotic ointment, make use of other appropriate treatments, point out that tetanus cases are extremely rare (and provide statistics if possible), explain that you take all reasonable precautions to prevent this kind of accident, etc. The bottom line, though, is that there is a point at which the state may intervene to protect a child from parents failure to take proper care of their children, and medical doctors have the authority to make that call when it comes to medical care. So while you and I may disagree about where the line should be, if a doctor says the child must have a tetanus shot, you could potentially have your child taken away from you if you refuse. So, one possible answer to the tetanus shot question is to say that if there ever arose a point where the state would intervene and override your religious beliefs to administer the shot or if any situation arose where your religious beliefs could be overridden by the state you would cooperate even if that meant violating your religious beliefs, because the result would be the same whether your cooperated or not, and your cooperation 87

88 would make it go easier for all concerned; and that you would immediately pray for God s forgiveness. The point is, this lets the court know that your child won t be put in harm s way because of your religious objections to immunizations whenever they are medically required, without giving the impression that your religious beliefs aren t really sincere for lack of consistency. In custody cases, it s best to be clear that you would never do anything to put your child s health or life unnecessarily at risk. Custody judges tend to give decisionmaking authority to the parents they believe have the best judgment. b) What are your religious beliefs that are opposed to immunizations? Again, find out well ahead of time what does and doesn t qualify, and be prepared to back your answer with appropriate legal precedent. Review Part I above. Please note that writing a statement of religious beliefs opposed to vaccines is not a task that reduces to a simple bullet point list. In my experience, this requires an interactive process between attorney and client. This is why I don t try to explain how to do this on my website or in this e-book. Anything I could say in writing would be incomplete, and result in people writing statements that leave them vulnerable to rejection. c) What church do you belong to? As the federal legal precedent cited in Part I shows, the proper legal answer is, it doesn t matter. You should answer honestly, of course, or let your attorney object to the question and make the legal argument later that the answer to this question is legally irrelevant to the court s assessment and ruling. [See Part I above.] d) Do you object to other medical treatments on religious grounds? This point is under- 88

89 standably confusing for many people. There is not necessarily a contradiction between refusing vaccines and utilizing other medical treatments, so long as your beliefs make a clear distinction between vaccines and other forms of medical treatment. A complete answer to this question is beyond the scope of this e-book, but one example has to do with the fact that immunizations are a treatment intended to address a hypothetical future risk, and as such, they show a lack of faith in God s protection; or, that it is up to God to decide whether or not we get sick; whereas acceptance of other procedures for present needs shows acceptance of God s help that invariably comes to us in many different ways, including through physicians, 127 whereas a present health need arguably exists because God either required it or allowed it. Regarding a present medical need, one might 127 E.g., Mark 2:17 states: And hearing this, Jesus said to them, It is not those who are healthy who need a physician, but those who are sick; I did not come to call the righteous, but sinners. pray that God help them find the best physician, and that God work with or through the physician to ensure the best diagnosis and treatment. The bottom line is that it needn t be a contradiction for one to refuse vaccines for religious reasons but to accept other medical treatment. But if you don t have a clear answer to this question, it may look as though you are not applying your belief consistently, and that is grounds for deeming a belief to be legally insincere and thus rejected. 9. Other Factors in Vaccine Custody Disputes There are many factors that may affect the final outcome in vaccine custody disputes. Possible considerations include: a) How long the pro-exemption parent has been exercising an exemption (i.e., what is the status quo primarily with regard to the child s vaccina- 89

90 tion status, but also with regard to the state s acceptance of the exemption claim). Custody courts favor maintaining the status quo at least generally, so the longer an exemption has been in place, the better. Ultimately, all that is needed is a present belief, but the longer the belief has been held and practiced, the more sincere it is apt to look. b) Whether or not the pro-vaccine parent was agreeable to the exemption prior to the parents separating. When parents agree on nonimmunization prior to separation, the pro-vaccine parent s change of position after custody is disputed can certainly look disingenuous and lose credibility accordingly. However, this is not an important concern to a court initially, as courts are looking for what s best for the child now, and past agreement or disagreement on exemptions may be irrelevant to that concern. So, it may be necessary to dispense with the health question first, before attempting to make this an issue. c) Whether or not the vaccine dispute may involve a larger question of which parent should have decision-making authority concerning the child s healthcare and/or religious upbringing generally, and accordingly, the history of medical and religious decision-making for the child. At least one court ruled in favor of the exempting parent on the basis that the exempting parent was the best parent to make those decisions. d) How this dispute fits into the larger overall custody dispute e.g., whether or not taking this dispute to the judge may affect, or be affected by, larger issues such as who the children live with primarily, which parent gets what decision-making authority for the child generally or in other specific matters, and other custody-related concerns. 90

91 e) It is critical to have legal authority with you citations and printouts of relevant statutes, regulations, and legal precedent to support your position on all relevant matters when going to court or when writing a brief in support of your position. For this reason and many others, parties in family law cases should be represented by a competent, local family law attorney whenever possible; and with vaccine custody disputes, you should involve an experienced vaccine rights attorney, unless your family law attorney has a firm grip of the law and legal arguments discussed in this e-book. (I have not yet met one who, before talking to me, was familiar with these legal arguments). 10. The Final Fallback Position: Appeal A fully and properly prepared client and their attorney have a reasonable chance of winning a vaccine custody dispute. But let s face it it s an uphill battle given the prevailing mainstream beliefs and fears associated connected with vaccines and infectious disease. Judges sometimes look for ways to rule the way they want to even when the law says they should do otherwise that s just the practical reality. In the event that the pro-exemption parent loses the vaccine dispute at trial, the parent may wish to appeal the decision. States generally provide means by which the carrying out of an order may be stayed or postponed pending the outcome of an appeal of the order, if circumstances support such a decision and proper procedures are timely followed requesting this relief. There are time limits for one to appeal an order, and issues may need to have been properly preserved at trial, so be sure to consult a local attorney as quickly as possible if this situation applies to you. Remember, though, that it is critical to get the proper arguments into the trial. Appellate courts don t retry the case, they merely look to see if the trial court got it right or 91

92 not. So, if you want an appellate court to reverse the trial court s decision, you must first give the trial court what it needs to rule in your favor in the first place. B. PARENTAL RIGHTS ISSUES At what point does a parent lose the right to exercise and exemption for her child? For example, a parent can lose custody of their children to the state for abusing or neglecting their child, without losing their parental rights altogether, which is a more extreme measure. The answer appears to vary from state to state according to legal precedent. See the last 3 cases listed in the State Courts and State Precedent section above for examples of this variation in state rulings. VII. DELAYED VACCINE SCHEDULES: Are They Legal? Many doctors, including some CDC officials, support parents who wish to delay vaccines under the belief that this may be safer for young children. While this approach may reduce the chance of a serious adverse reaction to the vaccines, the question of whether or not this is a legitimate legal option is a separate matter. Review your state s statutes and regulations; some may allow this. But it is more likely than not that this approach was not contemplated by most state legislatures and the exemption laws they enacted, unless it is clear from the language of the law or a state health department form 128 that this is a legal option. 128 E.g., the CO health department has a form allowing exempting parents to pick and choose which vaccines to get and refuse. 92

93 The concern may not be for parents alone doctors who support this approach may unwittingly be opening themselves up to possible disciplinary action by their state s medical board, or even potential legal problems, if supporting a delayed vaccination schedule amounts to their supporting an unlawful choice on the part of the parents. 129 In any event, parents who wish to consider this option should also investigate the legality of the option before doing this. Parents who wish to use a delayed vaccine schedule should also consider that one possible result of this is a later requirement to catch up on delayed vaccines within a short period of time in order to meet school enrollment requirements. While the initial delay may be a good thing, the later crunch of doing many vaccines within a short period of time may not be. VIII. REFUSAL TO VACCINATE FORMS 130 One response to growing concerns about vaccinations and documented increases in the number of vaccine legal exemption claims has been doctors use of Refusal to Vaccinate forms. The American Academy of Pediatrics (AAP) recommends that doctors require parents of unvaccinated children to sign its Refusal to Vaccinate form, or a similar form, to induce a wavering parent to accept [standard immunization] recommendations and reduce any potential liability should a vaccine preventable disease occur 129 This is not to say that a doctor s supporting a delayed vaccines schedule necessarily constitutes an ethical or other violation, only that it raises a legitimate question in this regard that doctors may wish to investigate. 130 This section is adapted from an article published by the author in the Townsend Letter, April 2008 ( 93

94 in the unimmunized patient. 131 Arguably, neither of these rationales applies to patients exercising a legal vaccine exemption. For this and other reasons, the use of Refusal to Vaccinate forms raises serious ethical questions and should be withdrawn. First, some pediatricians reportedly require all unvaccinated children s parents to sign a Refusal to Vaccinate form before they will treat the parents children. 132 This can put non-vaccinating parents in the position of having to feign agreement with assertions they may genuinely dispute if they wish to avoid being refused medical treatment for their child. One question arising from this conflict concerns the threshold to be met before a Available at: RefusaltoVaccinate_revised% pdf. 132 Many practices reportedly refuse to treat a child who is not immunized under any circumstances. This raises a separate, additional ethical concern. doctor may ethically refuse treatment. In this instance, does a parent s refusing vaccination a procedure aimed at protecting a child from a hypothetical future exposure to disease in a largely disease-free society provide reasonable grounds for a doctor to refuse to address a child s immediate healthcare needs? Many would say not especially if the parents are exercising a legal exemption to immunizations, as the exemption likely removes any future liability concern for the doctor that might otherwise hypothetically arise from knowingly or negligently failing to vaccinate a child the doctor treated. Furthermore, if an unvaccinated child in need of treatment is refused treatment and suffers preventable harm as a result, who is to blame? Common sense suggests that the doctor would be responsible. Some of the specific statements in Refusal to Vaccinate forms raise ethical questions as well. 94

95 For example, the AAP form states: I know that failure to follow the recommendations about vaccination may endanger the health or life of my child and others This assertion may not only conflict with the parents beliefs, 133 but more importantly, it conflicts with federal agencies and 48 state legislatures which, by their enactment of vaccine philosophical and/or religious exemption statutes, have already determined that exercising a vaccine exemption does not pose a significant health risk to the child or others. 134 Therefore, a doctor s asking an exempt parent to agree to such a statement amounts to a misplaced attempt to reopen a previously resolved legislative matter in circumvention of the proper political process. In other words, the question of whether or not the exercise of a vaccine exemption poses a signifi- 133 And those of a growing number of health care professionals as well. 134 Or else those legislatures would not have enacted exemption laws in the first place. cant health risk is one properly put before lawmakers, and not one for healthcare professionals to impose coercively on their patients or patients parents. Worse, the AAP recommends requiring Refusal to Vaccinate forms to be updated, or a new form to be signed, each time a parent brings their child to the doctor. This practice cannot reasonably be attributed to a liability concern or a need to convince wavering parents to vaccinate if these matters were adequately addressed in the first doctor visit. Rather, in this context, the policy is clearly utilized solely to create repeat opportunities to coerce parents who refused vaccines previously into changing their minds and abandoning their legal right to refuse vaccines. Must doctors really employ such tactics rather than simply invite parents to discuss their concerns? Moreover, this practice risks undermining the doctor-patient rela- 95

96 tionship, for how can parents trust a doctor who repeatedly confronts them on a sensitive issue previously addressed and presumably resolved? With each subsequent confrontation, trust may be further eroded and the child s future healthcare potentially put at risk, as the parents may be reluctant to bring the child back to avoid the confrontation. For patients exercising a religious exemption to immunizations, doctors use of Refusal to Vaccinate forms may raise Constitutional concerns, considering the body of federal legal precedent supporting broad, First Amendment rights to refuse vaccinations on religious grounds discussed above. (Since the First Amendment applies to government entities only, this concern may not be valid with private clinics, unless the clinics have substantial ties to government such as accepting Medicaid or Medicare.) State constitutions and statutes often provide broad support for the free exercise of religion as well. A separate First Amendment concern involves the right to free speech, which includes a right to be free of being compelled to agree with government (or private entities with substantial ties to government). Another concern goes more to the heart of the AAP s health-risk argument, that being the numerous peer-reviewed medical studies, government statistics, documented corruption in the healthcare arena (in government and the private sector), and other credible information that raise legitimate questions about current immunization policy altogether. These concerns are echoed by a growing number of doctors, medical researchers, and professional organizations who are speaking out about problems with mandatory im- 96

97 munizations. 135 So, despite the AAP s claim of unanimity among the American Academy of Family Physicians, the Centers for Disease Control and Prevention, and itself on the merits of vaccination, the position behind its Refusal to Vaccinate form is ultimately a political one that presents only one side of an inherently complex, multifaceted issue. Doctors requiring parents to sign Refusal to Vaccinate forms is therefore an attempt to force acceptance of one particular view among many, if admittedly still the more widely held view at this point in time. But as long as parents can refuse vaccines legally, the fact that their choice to do so represents a minority view that differs from that of their child s doctor should not determine whether or not their child gets medical treatment, nor should it expose parents to ridicule, pressure or potential liability for holding such views. That is the essential bottom line here. Finally, some doctors modify the AAP form or design one of their own that only further exacerbates the ethical concerns. For example, one pediatrician s office reportedly required parents to sign a form that would have the parents essentially admit to being neglectful or abusive for refusing to vaccinate their children. But if the parents are exercising a lawful vaccine exemption, they cannot be simultaneously committing an unlawful act of neglect or abuse for having refused vaccinations. 136 This concern is raised by implication in the AAP s Refusal to Vaccinate form unmodified as well. Parents signing that form may be admit- 135 See, among countless other examples, Dispelling Vaccination Myths and other articles at articles.html, and Show Us the Science, Mothering Magazine. March/April However, those who refuse vaccines while not exercising a legal exemption may be violating the law, be at risk of being considered medically neglecting their child, and potentially subject to prosecution accordingly. 97

98 ting to endangering the life and health of their child, which certainly suggests neglectful behavior on the part of the confessing parents. Surely it is unethical to ask parents to falsely admit to having committed unlawful behavior, and even more so if a child s medical treatment is held hostage to such an admission. What can parents do? As a general rule, it is best not to sign any document you haven t read, or any document containing statements you disagree with, especially if doing so may constitute a false confession that might be used against you in the future. But for parents who are confronted with a Refusal to Vaccinate form upon seeking medical treatment for their child, this may be a difficult thing to do. When told on the spot to choose between medical treatment for their child and adhering to their personal convictions, many good parents will reflexively put their child s treatment first and sign the form. Yet, many of these same parents will later regret having done so. Sadly, this appears to be precisely the strategy and purpose for the creation and use of Refusal to Vaccinate forms to compel vaccination by threat and intimidation, whether or not the parents agree or have the legal right to refuse. The tactic is insidious, for even when its primary objective fails and a nonvaccinating parent signs the form to retain their right to refuse vaccines and still get treatment for their child, the parents do so at their peril; the doctor has a confession on file that may leave parents in constant fear of the possibility of being accused of neglecting or abusing their child at any time in the future by a medical professional. Such unabashed coerciveness raises profound ethical concerns, even if employed with a sincere underlying belief about the necessity of vaccines. For if the doctors ends justified their means if exercising a vaccine exemption really posed a serious 98

99 risk of harm exemption laws would not be on the books. Viewed this way, Refusal to Vaccinate Forms are just another way that doctors put themselves above the law. Doctors may have a legitimate liability concern with patients who are neither vaccinated nor legally exempt, and a liability waiver may be appropriate in that instance, at least technically. But even then, the form content should be limited to the liability concern only, and the form not used as a vehicle for imposing what is essentially a pharmaceutical political agenda. That is, a doctor s unsolicited health-risk concerns about vaccination are not a proper tool to employ in pursuit of parents unwilling allegiance to but one of two or more legal options, especially where one or more of those options may involve non-medical considerations such as religious beliefs or non-medical philosophical concerns. Besides, fear-based persuasion is just plain bad business. Health care consumers are more savvy these days, and increasingly likely to view medical doctors scare tactics more as a discredit to the practitioner than a compelling reason to surrender personal convictions and legal rights. 137 Medical doctors are becoming less and less the absolute health care authority of years gone by and more and more only one of a long list of options available for addressing health care needs. This assertion is evidenced by the mushrooming alternative and complementary healthcare industry in recent years. Prudent physicians will consider this fact and adjust their style of practice accordingly. 137 As a practical matter, pediatricians exercise great influence over many parents. Well-baby checkups may not be available elsewhere, and many new parents are young and easily intimidated by medical professionals. Yet, this imbalance between doctor and patient only raises further the seriousness of the ethical questions involved i.e., the inappropriateness of tactics designed to take advantage of the parents vulnerability. 99

100 In summary, Refusal to Vaccinate forms raise important ethical questions, and policy regarding their use should be revised accordingly. Where legal exemptions are available, patients must be allowed to choose, free from coercion in any form or degree, which of their legal options they wish to pursue. Those who refuse vaccines and are not exercising an exemption should be urged to comply with the law, and, during times of noncompliance, required to sign a liability waiver but never pressured into exercising any one particular legal option where two or more such options may exist. Health-risk concerns and objections to exemption law are policy matters for legislatures, and doctors should not impose their political views on their patients; and they should only express their medical opinion when it is solicited by the parent or when it is politely offered and the offer is accepted. In a free and democratic society, the choice from among two or more legal options is not any one person s decision to make for others, or to impose on others. Parents and others concerned with doctors use of Refusal to Vaccine Forms may wish to consider reporting instances of this to state medical boards, if it appears that the use of these forms violates state medical ethical rules. 100

101 IX. DO YOU NEED AN ATTORNEY? It depends No one is required to hire an attorney to exercise a legal right, and many people have exercised vaccine exemptions on their own without incident. However, it is also true that some people have experienced unnecessary complications or even unnecessarily lost an exemption right because of not understanding their rights, so the question is worth considering. Evaluating this question is essentially an exercise in risk-assessment. To assess the risk effectively, you need to understand the relevant fundamental legal rights involved, and be aware of the important practical considerations relevant to the specific facts in your life. You may also need to assess your ability and willingness to defend your rights against local Courtroom, Pittsboro, NC authorities who resist your exemption claim, in the event you should encounter resistance as many have. Finally, to the extent that affording an attorney is an issue, there may be a cost/benefit-analysis component to your assessment as well. Attorneys can be expensive, and those familiar with vaccine exemption law are far and few between. As to whether or not to involve an attorney up front versus waiting to see if a problem arises and then hiring one at that time, bear in mind that attorneys make a great deal of money representing clients in legal disputes that could have been avoided altogether if the client had taken the time to have a consultation up front. It is also true that many people have lost exemption rights unneces- 101

102 sarily due to lack of knowledge about their rights and how best to exercise them not knowing what to say and what not to say, when and to whom. So, if you have any doubts about your understanding of vaccine law as it applies to the specific facts in your situation, or doubt your ability to deal with potentially aggressive local authorities, you should consider working with a knowledgeable attorney, and discuss with that attorney how best to make use of his or her expertise with regard to your specific situation. A single consultation may be sufficient in many instances. Other times, an attorney letter may be needed; or, where conflict is present or imminent, active representation and/or legal intervention by an attorney may be necessary. little or no state precedent, and the current federal precedent is persuasive rather than binding. Therefore, the boundaries of many U.S. citizens rights to declare a vaccine religious exemption are at least technically unsettled and composed of legal arguments rather than settled law. This unsettled law status can leave room for arguments on both sides, and provide a basis for local authorities to be more resistant to some exemption claims. So, the question of whether or not to hire an attorney and your assessment of the risks should include an assessment of your level of confidence in your understanding of your legal rights, and your ability to persuasively assert those rights to local officials, should that become necessary. As indicated above, some aspects of the law on vaccine religious exemptions is technically unsettled in most states. That is, most states have Unfortunately, few if any of the factors in your assessment can be quantified, including the likelihood that a local official may be unwilling to 102

103 hear your opinions about your rights, however legally correct and well presented they may be. Local authorities have the upper hand; they are, after all, the authority on the matter, and many are adamantly opposed to exemptions. Oftentimes those officials will ignore a lay person, but they may be more able to hear an attorney, especially when assertions about your rights are supported with legal precedent that raises the specter of your being awarded money damages if they violate your First Amendment rights by unlawfully denying the exemption. Ultimately, if you and local authorities disagree, only a judge can decide who is right. Whatever the outcome, a lower court s ruling is potentially subject to appeal and possibly a series of appeals which can involve considerable amounts of time, money, and emotional turmoil. Avoiding a conflict altogether, then, is almost always preferable and the more prudent goal. For the would-be exempt person, this requires presenting your legal position in a manner that convinces local authorities that your claim is legally sound, and that denying your exemption would be a lost cause and a waste of time and money on their part if you took it to court. Your assessment of the should I hire an attorney? question and corresponding course of action should be aimed at achieving this goal, factoring in the practical reality that when it comes to important legal matters, attorneys often have the legal expertise and clout necessary to move a cause forward smoothly where lay people alone cannot. When you involve an attorney, then, you can expect to be taken more seriously in most instances. Following is a list of situations in which you really should consult an attorney, even if you 103

104 would otherwise choose not to: A. You re in a situation where you have to state your religious beliefs opposed to immunizations. This includes some state schools exemptions, and all military, immigration, and employment exemptions and waivers. The reason is simple: 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. Unfortunately, this task doesn t reduce to a simple formula approach. Since copying is grounds for rejection as being insincere, the best religious belief statements are ones unique to each person or family. And since drafting a statement of religious beliefs opposed to immunizations is an interactive task for me and my clients, it is not possible for me to explain in a book or article how to do it. So, when a statement of religious beliefs is required, it s best to consult an experienced attorney. It can be very difficult to fix a legally flawed religious exemption statement retrospectively, after you ve already submitted it to the appropriate local authority. B. You have a situation that involves, or is likely to involve, going to court. Non-attorneys are at a disadvantage because they don t know rules of procedure, evidence and court; nor are they familiar with the local rules, customs and judges. Furthermore, the unfortunate reality is that many judges get frustrated quickly with pro se clients (clients representing themselves), for the simple reason that pro se clients usually don t know what they re doing, and so are often not able to participate effectively and efficiently in the legal process. Therefore, pro se clients often come away from 104

105 court feeling like they haven t been heard. 138 C. There is a present or imminent conflict between you and a local healthcare professional or official, especially if you ve been threatened in any way. A knowledgeable attorney may be able to intervene authoritatively with formal legal arguments supporting your rights under the specific facts in your situation, and cut short a potentially costly, drawn-out legal conflict and loss of your exemption right. An attorney may also be able to help you better understand your rights and to sort through different possible courses of action and potential outcomes, thereby helping you to make a more informed and effective decision about how best to proceed in your specific situation. 138 To be fair, many judges give pro se clients every opportunity to tell their side of the story. Even in the best situation, though, pro se clients are at a disadvantage, and opposing attorneys are usually quick to take advantage of that. D. You wish to pro-actively minimize the chances of a future conflict or challenge, even though there is no present or impending conflict. Fear of a hypothetical future conflict is not necessarily unwarranted paranoia. 139 Increased awareness of the problems with vaccines generally is causing greater numbers of people to question vaccines and seek ways to legally avoid them, and this has caught the attention of local, state and national officials. The result may be increasing scrutiny of exemption claims around the country generally, along with other efforts aimed at limiting exemption options and repealing exemption laws altogether. An attorney may be able to provide legal support that will increase the odds that your exemption claim will survive the scrutiny of local officials, or avoid scrutiny altogether. When authorities look for vulnerable exemption 139 Or, as a wise person once said, Just because you re paranoid doesn t mean they re not out to get you! 105

106 claims, they may be more likely to find them among those not supported by an attorney, as lay persons are more likely to inadvertently do, or fail to do, something that leaves their exemption claim vulnerable. E. You or your child have had past vaccines, especially if recently. This doesn t mean you can t claim an exemption religious exemptions require only a present belief, not consistent behavior in the past with your present objections, but the practical reality is that past vaccines can complicate a present exemption claim in some instances. For example, with religious exemptions, one way of showing that the present belief is sincere can be a history of non-vaccination consistent with the present belief. So, if you ve had vaccines recently, authorities could view that behavior as evidence that your present claim is insincere. This may be especially true if prior vaccines caused an adverse reaction and you subsequently claim a religious exemption, as it may appear that you are disingenuously trying to avoid further harm (a medical concern) under the guise of a religious exemption. This situation may not be insurmountable, but it may be more complicated than situations where past vaccines are distant in time or haven t been given. In this situation, discussing the matter with an attorney may be helpful, so you can discuss arguments and strategies that will best support your exemption goal. Some people mistakenly think that having had vaccines in the past automatically prevents a present religious exemption, but this is not true. If your beliefs have changed since the last vaccine, or if prior vaccines were received over your objections because, e.g., you were pressured into it or didn t know you had a legal right to refuse at that time, then your present beliefs are not contradicted by past vaccines. 106

107 F. There are current or impending child custody proceedings and the parents disagree about whether or not to vaccinate the children. See the above section on Vaccine Custody Disputes. Working with a local family law attorney and an experienced vaccine rights attorney are highly advisable in this situation due to the inherent legal complexities. G. You want some vaccines, but not all. If your state s laws don t specifically provide for this option (and most states laws don t), it is likely that the state legislature didn t contemplate or intend that the exemption law be applied in this way, and it may be difficult to succeed. However, there are potential arguments for a qualified vaccine religious exemption that support getting some, but not all, vaccines. If your objective is to refuse only those vaccines whose development involved the use of aborted fetal tissue on religious grounds, or if you oppose only those vaccines whose ingredients include porcine (which comes from pigs and thus renders some vaccines not kosher), you may have a feasible argument for refusing only some vaccines. As a practical matter, though, these arguments have a good chance of being rejected initially unless the applicable exemption law explicitly allows for this some but not all position, and if they are rejected, you would have to decide whether or not to argue the position on appeal. So, be prepared for a potentially long and costly battle if you wish to assert this position and your state s laws don t allow you to refuse some, but not all, vaccines, unless your state clearly allows you to pick and choose. For example, Colorado s health department form allows such as choice. H. Claims of Abuse and Neglect. If you are exercising a valid legal exemption, then failure to vaccinate alone couldn t reasonably create a legal 107

108 basis for intervention by local officials on a claim of neglect or abuse for failure to vaccinate. However, if a concern about your failure to vaccinate your children were to arise in the absence of a valid legal exemption being exercised, you may be vulnerable to a charge of medical neglect or a similar complaint, since your legal choices are to either do required vaccines or exercise an available exemption. That is, if you are in compliance with the law, you are not vulnerable; but if you are not in compliance with the law, you may be vulnerable. When charges of abuse and neglect arise, the assistance of a knowledgeable attorney can be critical. Claims of abuse or neglect are serious charges that can trigger investigations and removal of children from homes sometimes even before abuse or neglect has even been substantiated. 140 So, this is a concern that should be taken 140 In other words, it s possible to lose one s children, at least temporarily, prior to there being actual proof of any wrongdoing. seriously, especially if there are any factors in addition to lack of vaccination that may provide a basis for concern on the part of any authorities. 141 Put simply, to minimize the chances of nonvaccination causing a problem with local officials, you should, at any given moment, either have your children up to date with all required immunizations or be exercising a valid legal exemption in the manner prescribed by your state s laws. Anything else leaves you in a potentially vulnerable gray area legally, and a formal investigation may be triggered by nothing more than a single phone Specific standards for child removal vary from state to state, but the underlying rationale appears to be better safe than sorry to protect children reasonably believed to be at risk. Unfortunately, the resulting removal sometimes causes harm where no significant harm justifying the removal is ever proven. The system means well, but it is not perfect. 141 Unfortunately, parents with alternative lifestyles are sometimes erroneously perceived as lacking proper parenting skills due to their alternative lifestyles, when in fact they are sometimes the far better-informed parents. For example, despite some vegetarians being healthier than some meat-eaters (e.g., studies show lower cancer rates for vegetarians), they are sometimes perceived as withholding proper nutrition from their children, and could be criticized or challenged accordingly. 108

109 call from a concerned citizen that may even be a well-meaning friend, neighbor or relative to local authorities. I. You wish to avoid immunizations required by your employer. There is legal support for your position under federal law as noted above, as qualifying employers must reasonably accommodate your religious beliefs under Title VII of the 1964 Civil Rights Act. If your employer s requirement is based on OSHA regulations (Hep B), the vaccine is not required; you can avoid the Hep B vaccine by signing the proper OSHA form (see above section on Federal Administrative Law). Anecdotal evidence strongly suggests that workers who attempt this on their own have a low success rate. Consider consulting an attorney experienced in this arena to learn more about how the law may support you with regard to the specific facts in your situation, and to see if having an attorney communicate on your behalf with your employer may be necessary. Most importantly, find out what does and doesn t qualify for a religious exemption before submitting a statement of your religious beliefs. [See the section above about employer-required vaccines!] J. You want an expert analysis of your specific situation, to better understand where the boundaries and vulnerabilities of your rights are, what the primary arguments are for and against your claim under the facts in your situation (especially if you are among the majority of Americans in jurisdictions where the boundaries of your rights are not clearly defined); or, you want the clout of a legal professional backing you up; or, you want to avoid having to deal with potentially uncooperative, coercive local authorities; or, you want to know what you should or shouldn t say, when and to whom, regarding your exemption claim. This is 109

110 a quick summary of some of the most important benefits you should expect from a consultation with a knowledgeable attorney, which the author recommends for anyone serious about immunization exemptions (or about any important legal issue, for that matter). It is a small price to pay for the long-term benefit of knowing what your rights really are and how best to proceed with exercising or defending them, and the best protection for you as you proceed forward with your exemption, in a more fully informed way. K. You want a future vulnerability assessment of a current or previous exemption claim. A knowledgeable attorney can provide this to help minimize the possibility of a future challenge, equip you to effectively respond to a challenge if one should occur, and suggest present action, if any, that may be needed to prepare for that contingency. 110

111 X. FREQUENTLY ASKED QUESTIONS A. Can I use an attorney from another state? Yes, but there are sometimes some limitations. Attorneys are licensed in one or more states or territories, there is no such thing as a federal law license. All attorneys may practice federal law. So, when the matter concerns only federal law such as exemptions and waivers in the military, for immigrants, and those involving federal civil rights law such as with employee exemptions, it probably doesn t matter where in the U.S. the attorney is licensed. To some extent, it doesn t matter with state religious exemptions either, since religious exemptions come with federal First Amendment rights, and it is the Constitution, and not state law, that determines what the boundaries of those rights are e.g., what does and doesn t qualify for a vaccine religious exemption. There are some limitations with an attorney licensed in another state with state school exemptions, as it pertains to purely state law matters, such as whether or not the exemption applies to private and religious schools, or what the specific exemption procedure is, as the answers vary from state to state. However, these are matters that one can often clear up with a call to the local or state health department, a local attorney, or a visit to a law school library with the help of a law school librarian. Also, an attorney with a law license from one state usually can t represent a client in court in another state without first getting permission from the other state s bar, something that can sometimes, but not always, be done. Courthouse at Chapel Hill, NC 111

112 However, an out-of-state attorney can consult with an in-state local attorney. I ve consulted many times with attorneys around the U.S. to assist them with their vaccine-related client matters, at times providing support with legal research and writing. B. Can I claim a religious exemption if I have both religious and non-religious beliefs opposed to immunizations? As long as you meet the requirements for a religious exemption, it shouldn t matter whether or not you also have non-religious concerns about vaccine requirements. Indeed, it may be difficult to completely separate the two in some instances E.g., God doesn t want me to subject my child to the risk of an adverse vaccine reaction. While hypothetically a legitimate religious belief, this assertion is not recommended, as it is subject to being interpreted as a mixture of religious and philosophical concerns that could potentially undermine a religious exemption claim. However, as a practical matter, you should be careful not to mix the two issues as much as possible when claiming or defending a religious exemption. As some of the cases cited above demonstrate, testimony that includes a focus on non-religious concerns may give the impression whether ultimately true or not that your primary objection is not religious, or that your claim for a religious exemption is really just a cover for nonreligious objections. Despite the existence of many valid non-religious reasons that may cause one to want to avoid vaccines, the bottom line is you can only refuse vaccines to the extent and in the manner prescribed by law. So, if your state provides for a religious exemption but no philosophical one, you should strive to keep these two categories separate for religious exemption purposes, and keep your focus on the beliefs that qualify you for the exemption in your specific situation. 112

113 If need be, consult an attorney to get clarification on the legal line between religious and nonreligious objections (it s not always as straightforward as you think), and to get insight about what you should or shouldn t say, when and to whom to avoid inadvertently undermining or losing valid religious objections and exemption rights. C. Can the state take away my exemption? Most if not all states have laws to protect the public from the presumed increased health risk that exempt persons pose to themselves and their communities. For example, statutes or regulations often require unimmunized students to stay home from school if there is a local outbreak. For example, exempt students can be required to stay home for 21 days when another (usually immunized) student contracts chicken pox. One parent reported to me that she was told by the school that her exempt child s 21 days out from school, due to another child s chicken pox, would be unexcused absences. It is hardly reasonable, of course, to say that exercising a state and federal Constitutional exemption right is unexcused. 143 D. Can I claim a religious exemption if I don t belong to an organized religion? It depends. If your state s religious exemption statute requires membership in an organized religion, there exists a compelling legal argument that the statute is unconstitutional, but until that question is actually addressed by a court in your jurisdiction that issues a ruling to that effect, the current requirement is still good law that is, it s still enforceable and arguably must be enforced 143 There may be legal grounds to challenge this. It hardly seems reasonable for a child to be punished for her parents lawful exercise of a First Amendment right to the free exercise of religion. 113

114 by local officials. However, it is possible that local officials would allow such an exemption, given the likely possibility that the exemption law would be ruled unconstitutional if the matter went to court. But if they did allow the exemption, it would not be because they had to legally, it would more likely be because they chose to avoid a court case that could ultimately result in the law being changed to remove the church-membership restriction, which could invite an increase in religious exemptions. If you present an exemption claim supported by federal precedent (usually best done with and through an attorney) and it is denied, you could take the matter to court, and run through a series of appeals if necessary, until a court makes a determination about the constitutionality of your state s exemption law. While there is a good chance that laws requiring membership in an organized religion would be held to be unconstitutional, that s not necessarily a good thing over the short term. As noted in some of the cases cited above, if the state statutes include a severability clause, the religious exemption statute could be stricken altogether instead of simply corrected, and that would mean having no religious exemption law at all until the subsequent passage of a new religious exemption bill by the state legislature. In states with statutes that don t explicitly require membership in an organized religion, it shouldn t matter whether you belong to one or not but in most states, the specific legal support for that position is persuasive precedent. So, the practical reality is that claiming an exemption could elicit resistance if local officials either misunderstand the law or have an opposing agenda that they re willing to argue to prevent the exemption. While there s no way to guarantee in ad- 114

115 vance the outcome in any specific situation, generally, the application of persuasive precedent is successful when applied to add clarity to an existing statute. For example, in states with statutes that don t address membership in an organized religion, persuasive federal legal precedent stating that such requirements are unconstitutional would probably carry sufficient weight to enable one who is not a member of an organized religion to get the exemption, assuming that other requirements, if any, are met. However, in states that explicitly require membership in an organized religion, persuasive federal legal precedent cannot, at least technically, enable one to circumvent the state law the state law would have to be changed (either by an act of the state legislature or by way of an appellate court ruling). However, as a purely practical matter, I have helped parents in such states succeed by pointing out to local officials that the state exemption laws are unconstitutional. Sometimes, that s all it takes to get individual exemptions approved. E. Can I claim a religious exemption if my church s doctrine doesn t have tenets opposed to immunization? As with the previous question, it depends. Federal precedent supports your rights, but exercising that right may be difficult in states with laws that specifically require membership in a religion with tenets in opposition to the immunization requirements, 144 for the reasons noted in the preceding section. In states whose laws don t require church membership, it should be easier, as the precedent, even where persuasive and therefore 144 Catholics who object to immunizations may be relieved to know that there are writings from the Vatican that support a nonvaccination position. While not a legal argument, they may help persuade other Catholics, e.g., at Catholic schools, that the Catholic Church provides some support for not vaccinating. See Children of God for Life at 115

116 not binding on the courts, could serve to provide clarity for the existing state statute rather than posing a conflict with it. F. Can I join a church to get a religious exemption? As a practical matter, if it works, then the answer is yes. As a legal matter, this doesn t work, as doing so may reasonably be interpreted as an indication that your objection to immunizations is not rooted in sincere, deeply held religious beliefs that religion is a cover for non-religious concerns and leave your exemption claim vulnerable accordingly. One federal district court case denied parents a religious exemption due to testimony that showed the parents had avoided vaccines for non-religious reasons, including joining a church for the purpose of claiming a religious exemption. So, this is a risky proposition. However, in states whose laws do not allow the state to inquire into the sincerity of your religious beliefs, this approach may win by default. G. Does a History of Past Vaccines Necessarily Prevent the Exercise of a Present Religious Exemption? No. Federal precedent tells us that exercising a religious exemption requires only a present belief. Assuming you have the requisite present belief and the applicable precedent is only persuasive for your state, if there is no opposing precedent on this point, the precedent should be sufficient to enable the exemption to be allowed. However, as a more practical matter, it is easy to understand that a local official might view past vaccines as being inconsistent with a present religious exemption claim, so in states that permit scrutiny of the sincerity of religious exemption 116

117 beliefs, this could pose a problem. But if the issue is raised, there is precedent that could be raised in response that may help resolve the issue in favor of the exemption. On a more practical level, if you have both past vaccines and a present sincerely held religious objection to vaccines, then either your beliefs have changed since the last vaccine, or the last vaccine was administered against your religious beliefs, perhaps because you were pressured into it or didn t know you had a legal right to refuse. Federal precedent also tells us that one need not have been totally faithful to one s religious beliefs in the past in order to qualify as a sincere believer and get the exemption now. You may have been coerced into vaccinating against your religious beliefs previously, but be better able now to assert your religious objections. The more critical question may be whether or not you need an attorney to assert the argument on your behalf in order for it to be heard and your exemption claim allowed. H. Can the state take my unvaccinated children away from me based on charges of neglect or abuse? If you are properly claiming a valid vaccine legal exemption for yourself and your children, you cannot at the same time be legally neglecting or abusing your children for not vaccinating them. Families might be subject to state intervention where vaccines are not up to date and no valid legal exemption is being claimed or exercised, but families are most susceptible if there are other concerns in addition to lack of vaccination that suggest the presence of neglect or abuse. The risk is enhanced by state social workers authority to act first and investigate later. 117

118 When state officials have sufficient grounds to suspect neglect or abuse has occurred or there is a sufficiently serious risk of harm from reasonably suspected neglect or abuse, they can and sometimes do remove a child, operating on a better safe than sorry rationale. This no doubt helps some children in need, but it also ultimately results in some erroneous removals of children whose lives are unnecessarily traumatized as a result. Still further complicating this matter is the fact that laws vary from state to state, and frankly, they are not always uniformly applied within and throughout any individual state. What constitutes grounds for intervention is subject to interpretation and may, to one degree or another, be a subjective call on the part of local officials. In any event, you should either be up to date with all required immunizations or exercising a valid legal exemption at all times. It is probably also wise for parents to stay up to date with normal and usual well-baby check-ups and other recommended healthcare visits for children, especially in early childhood, to avoid being accused of neglecting their child s healthcare needs. The irony is that well-baby check-ups are scheduled around the recommended immunization schedule the only reason to attend some of those check-ups, assuming there are no symptoms needing attention, is to get the next scheduled immunization. It may be prudent to take your child in for that check-up anyway. I. Can I lose custody of my children because of my religious objections to immunizations? In formal custody disputes between separated of divorced parents, this is a possibility, but there are often strong legal arguments favoring 118

119 pro-exemption parents. See the above section on Vaccine Custody Disputes. J. Can I adopt a child without getting her vaccinated? Foreign adoption of minor children is an immigration issue. When adopting children from overseas, you can use form USCIS Form I-601, Application for Waiver of Grounds of Excludability, pay the corresponding application fee, and if you provide the appropriate documents discussed in the Federal Administrative Law and Immigration sections above, you can avoid immunizations required by U.S. law. However, the adopted child s country of origin may have some say in the matter with regard to immunizations in that country, so the fact that our government allows an exemption may not ultimately prevent all vaccines. Once the adopted child and adoptive parents are all within the U.S., requirements and exemptions will fall under state law where the family resides. The matter should be addressed well in advance, to ensure that your rights are clearly understood and honored by all concerned. This is a situation where you are well-advised to involve a knowledgeable vaccine rights attorney, in addition to the adoption or immigration attorney, as this is a highly specialized area that adoption and immigration attorneys are not likely to be familiar with. K. Can I legally refuse some vaccines but not others? Unless your state s laws explicitly provide for picking and choosing vaccines (and few state laws do), or unless there is legal precedent supporting this (and the author is aware of any such precedent), then such an option is most likely not a viable legal alternative. Therefore, those who 119

120 decide to pick and choose often do so at their peril. One could attempt to convince local officials that they shouldn t deny the exemption, but since local officials are bound by current state law, success is not at all certain. If you are denied the exemption and choose to engage in the appropriate appeals processes, you may have a chance of ultimately prevailing if you have a viable legal argument. As noted above, one such argument may be an objection on religious grounds to only those vaccines developed with the use of aborted fetal tissue, in states that offer a religious exemption. L. Can I legally refuse vaccines required by my employer? If the requirements are based on OSHA regulations, those regulations stop short of mandating the Hepatitis B vaccine, provided the appropriate Appendix A form is signed as noted in the Federal Administrative Law and section above. In addition, where Title VII applies, there may be a legal argument that an employee need not comply with the company s vaccine policy if vaccination is against the employee s religious beliefs. Qualifying employers must make reasonable accommodations for their employees religious beliefs, and if yours include refusing vaccinations and if the employer can reasonably accommodate that you should be able to refuse them. In the flu season of , I worked with some 150 healthcare workers in 26 states, and the vast majority were successful. Federal civil rights laws apply to most U.S. employees. See the sections above on Federal Administrative Law and Healthcare Employees. M. Are there exemptions for the military? 120

121 Federal statutes allow some military personnel to be exempt from participation in the anthrax immunization program as noted in the section on Federal Statutes above. Military regulations provide for religious exemptions. Regulations also address military families and civilian military contractors. See the above section on federal administrative law. N. Is there any option for people who don t qualify for any of their states exemptions? If you don t qualify for any of the exemptions in your state, and no other state or federal law applies, you legal options are to work to get new legislation passed that expand your state s exemption options to include you, or to move to another state where you already qualify for an available exemption. This could mean getting a philosophical exemption passed in those states that do not already have one, or adding or modifying a religious exemption option as needed; e.g., working to eliminate church membership requirements if your state has that requirement. Some have suggested that if you are in a desperate situation with no other options, you could draft a statement to give to local officials stating that you will agree to the required vaccines if the local official or doctor agrees to assume complete responsibility, financially and otherwise, for all adverse reactions to any of the vaccines that may occur at any time in the future. It has been claimed further that no one has ever signed such an agreement. But then, no official is legally required to sign such an agreement, and your child is still required to take the vaccines, so why would they such a form? 121

122 The problems with this approach are many. It won t get your kids into school or get your physician to continue treating your unvaccinated children, and it may subject you to legal penalties for failing to comply with vaccination requirements. The fact is, avoiding vaccines legally can be difficult in some instances, and your only valid legal options are those provided by law. So, if you live in West Virginia or Mississippi where the only school exemption is medical, and don t qualify for a medical exemption, you will have to move to a state where an exemption is available or to take steps to get legislation passed that provides for a philosophical and/or religious exemption. If you live in any of the 30 or so other states with a religious but no philosophical exemption (and assuming you don t qualify for a medical exemption), and if you are an atheist, you need to move to a state that has a philosophical exemption, or lobby for the enactment of a philosophical exemption in your state. O. Can the state forcibly vaccinate me over my religious or philosophical objections? States and the federal government can enact laws empowering them to do just about anything, so long as it does not exceed the boundaries of the U.S. Constitution or violate public policy. I m not aware of any court cases addressing forced vaccination against one s will, but it is probably not legally proper. However, if people are scared, they ll do whatever they feel is necessary. A high school student in West Virginia was reportedly held down and vaccinated against his and his mother s will during the so-called swine flu pandemic of So, the best protection may be to ensure that laws spell out a prohibition against forced vaccination, and to do your best to 122

123 avoid ever being in a situation where anyone would be tempted to forcefully vaccinated you. States are probably not required to provide philosophical or religious exemptions under the U.S. Constitution, but they are arguably required to provide a medical exemption. Since the events of 9/11 in 2001, states have been enacting laws granting themselves authority to impose quarantine and isolation on unvaccinated residents in emergency situations. Many find such authority deeply troubling and believe it should be limited, to avoid abuse of it. State laws generally require exempt children to stay home from school during local disease outbreaks, so exempt children may not have the same rights as vaccinated kids i.e., the right to an education during a local disease outbreak. Presumably, this is the compromise between religious freedom and the state s obligation to require vaccines for the (presumed) protection of the community. It is also clear that in those situations where the state has authority to require vaccinations under state law, those people who refuse required immunizations may be subject to penalties that may include fines, having their children kept out of school, and possibly even criminal prosecution. But as to whether the state may or would forcibly vaccinate a person or their child despite over that person s adamantly held religious or philosophical objection? The legal answer to this question may not be clear, for the simple reason that is has not yet come up in an actual legal dispute that has generated legal precedent giving us a formal legal answer, as far as I know at this time. 123

124 XI. FUTURE RIGHTS There is an aggressive vaccine agenda playing out recently and presently. Obamacare provides federal grants to states that promote door-to-door enforcement of vaccine mandates; pediatricians are increasingly requiring parents to sign unethical Vaccine Refusal Forms or refusing to treat unvaccinated children altogether; states are aggressively pursuing pro-vaccine legislative agendas; and the pharmaceutical industry which routinely engages in documented criminal behavior is rolling out hundreds of new vaccines. 145 Rights are neither absolute nor stagnant. At any given point, their boundaries are subject to modification expansion or contraction and the rights themselves subject to being lost altogether, 145 See for links to articles elaborating and documenting these concerns. often in direct correlation to the efforts of those working to support or oppose them. Courts are reluctant to undertake the task of determining the scientific merits of immunization (indeed, they are unable to do so, under the 1905 U.S. Supreme Court Jacobson case), under the assumption that legislators have already addressed that issue and enacted legislation accordingly. In fact, courts have gone so far as to take judicial notice 146 of vaccination beliefs widely held, despite scientific evidence to the contrary, such as the alleged but disputed facts that vaccines provide protection from disease and are the 146 When a court takes judicial notice, it accepts a fact as true without requiring proof. Generally this occurs only with facts that are obviously true and irrefutable, e.g., the fact that Christmas is a holiday. 124

125 cause of infectious disease declines over the last century. 147 Thus, those that control the dissemination of information that forms society s widely held beliefs about any given topic may also influence correspondingly the law governing the subject of the information being disseminated, even in the absence of scientific consensus or the presence of credible scientific information to the contrary. Each of us must decide how important our rights are, and take active steps to assert, defend and protect them accordingly. For surely if we don t, others will advance opposing agendas to our detriment. If vaccine exemption rights are important to you, consider aligning with and supporting local and national organizations that seek to support and expand those rights YOUR rights. One of 147 While beyond the scope of this book, there are many reputable medical and scientific professionals, researchers, and organizations that dispute widely held beliefs about the safety and efficacy of immunizations presently and historically, and there is abundant scientific evidence supporting their positions. the best ways that I know to do this is to join the National Vaccine Information Center s National Vaccine Advocacy Portal, at It s free to join, and you can keep abreast of vaccine bills in your state and around the nation. In early 2013, there were about 100 vaccine bills pending in over 30 states. This is a hot topic in the nation! Most of these bills are seeking such things as requiring still more vaccines for students, new mandates for adult employees, allowing pharmacists to administer vaccines), new restrictions on vaccine exemptions, and access to children by allowing children to consent to vaccines on their own. A few bills are seeking to expand the right to make informed choices, but they were far overshadowed by the aggressive pro-vaccine legislative agenda. If we don t take steps to address this matter, it will only get worse and worse. Act now before it s too late! 125

126 XII. LEGAL RESOURCES FOR THE NON-ATTORNEY The only way to ensure that you have fully accurate and up-to-date legal information is to access an authoritative legal subscription service or visit a law library. 148 When accessing hardcopy code volumes or reporters (volumes containing case law), you must check for updates in the law that may have occurred since the hardcopy materials were printed, as law is continually being updated. Please note that even official state websites that provide searchable statutes and regulations online to the general public are probably not fully current and up to date. Also, fully understanding and correctly interpreting laws, even ones that seem clear on their face, may require a review of applicable legal precedent, so you should consider consulting an attorney to check your understanding of the law that you find. Remember, it s not just a question of whether or not the language of a statute or regulation is unambiguous, it s that courts sometimes interpret code in ways that renders the code read alone incomplete or even misleading. In any event, legal precedent is what determines how codes are applied in specific situations, not the codes by themselves. There are also many legal terms of art whose meaning may not be readily apparent to lay persons unfamiliar with them. 148 Some city or county public libraries may have state statutes and other legal resources, but it is unlikely that they would have all of the legal resources you need to fully research this topic. You may need to go to a law library to find state and federal reporters with legal precedent, volumes with administrative code, and secondary legal resources. The starting place for legal research on your legal exemption options and rights is your state s statutes and regulations for school exemptions, 126

127 federal regulations for immigration waivers and military exemptions, and federal and state statutes for employment concerns, as discussed above. Some helpful resources include: A. Exemption Articles: See the long and continually growing list of links to my published articles about vaccine exemptions, waivers, and political issues at B. Websites: WARNING: Avoid anti-vaccine websites as a source of legal information. They mean well, and I mean no disrespect, but they usually have a mixture of accurate and inaccurate information. As this e-book clearly reveals, the law is more complicated than most people realize. So, if it s important, go to an authoritative source, and not an amateur. (1) My Vaccine Rights website lists links to 3 other websites posted exemption laws for school exemptions at: Most states also have state websites where state statutes and regulations can be searched. Please note that none of these sources can be assumed to be fully accurate and up-to-date at all times even public acces state websites are often a few months behind and don t reflect recent changes in the law. So, the safest, most reliable sources are paid subscription sources that most attorneys subscribe to and hard copy sources available at law school libraries. Public libraries are likely to have local state statutes and regulations in hard copy, and may have access to additional legal resources. (2) Findlaw provides links to searchable state and federal laws, including constitutions, 127

128 some case law, statutes, and administrative code, at (3) Your state health department may have its own website that provides exemption laws and procedures for state school exemptions. Remember to review both statutes and regulations to determine the laws and procedure for exercising a state law exemption, and that state and/or federal legal precedent may need to be consulted to learn how these laws apply to the specific facts and circumstances in your life. C. Professional On-line Legal Services: Designed primarily for legal professionals, Westlaw and Lexis are the two primary ones. Other services include Loislaw, Casemaker, Fastcase, National Law Library, RegScan, TheLaw.net Corporation, and Versus Law. More information is available at These services provide access to up to date state and federal legal resource materials for a subscription fee. Most attorneys or their law firms subscribe to one of these services. You can probably find statutes, regulations, constitutions, and legal precedent all of the available, applicable law to vaccine exemption questions with any of these services, but they are probably not cost effective if being purchased for a single legal issue or concern, as they are designed for ongoing use by attorneys with ongoing legal resource needs. D. Law School Libraries: These generally have a full range of primary and secondary legal resources, often for many states as well as federal laws if not the entire nation; some have primary resources for all states. The American Association of Law Libraries, AALLNET, has a website discussing Legal Information Services to the Public (LISP) that is a guide for non-lawyers on How to 128

129 Research a Legal Problem (revised March 2009), at: There may be other websites offering assistance as well. Try Internet searches using different combinations of keywords including: law, legal, research, immunizations, exemptions, religious, waiver, exception, philosophical, etc. XIII. ABOUT THE AUTHOR Alan G. Phillips 149 was awarded a Juris Doctor Degree from the University of North Carolina School of Law, one of the nation s top public law schools, in May of He is a member in good standing of the North Carolina State Bar, the North Carolina Bar Association, and North Carolina s 28 th Judicial District Bar. Alan advises individuals, families, attorneys, groups and organizations throughout the U.S. on vaccine ex- 149 For more information see emption and waiver rights; supports legislative initiatives aimed at expanding vaccine freedom of choice; is published internationally on vaccine health and legal matters; and appears regularly at rallies, conferences, Alan G. Phillips, Attorney at Law and on radio and TV shows discussing vaccine rights issues. Alan is a co-host with Doctor-Attorney Mayer Eisenstein, M.D. on The Know Your Rights Hour on BlogTalkRadio (rebroadcast at NaturalNewsRadio.com), and 129

130 Vaccines and Your Rights in the U.S. (VYRUS), a combined Freedomizer Radio and Homeopathy World Community Radio show. Other radio shows are listed or linked from the Vaccine Rights website, Alan is also a regularly featured writer for Natural News, GreenMed Info.com, Liberty Roundtable, and the Pastoral Medical Association. Alan is an Advisory Board Member of the American Chiropractic Autism Board, a board member of the World Association for Vaccine Education and the Pastoral Medical Association, a co-founder of North Carolina's Citizens for Healthcare Freedom, an Associate and Legal Advisor to Source Force, Inc. (a caring ministry for poverty AIDS and terminal cancer victims), and an Advisory Counsel Member of Thai Healing Alliance International. Over the years Alan has helped clients secure vaccine exemptions in a wide variety of settings, including schools (public, private, home and military), colleges, the military (members, families, civilian contractors), immigration (including foreign adoption), healthcare employees, and parents in vaccine custody disputes. Alan's e-book, The Authoritative Guide to Vaccine Legal Exemptions, is the only publication that provides authoritative, accurate, in-depth information about how state and federal laws interact with individual circumstances to form the precise boundaries of each person's legal right to refuse vaccines; his Vaccine Rights website, the only Internet site dedicated solely to vaccine legal exemptions and waivers. Alan also spearheaded the Pandemic Response Project (PReP), a national initiative aimed at reforming state laws across the U.S. that currently provide for vaccines to be mandated *without exemptions* during declared emergencies and non- 130

131 vaccinated persons to be quarantined in government facilities against their will. Alan's "Dispelling Vaccination Myths" article was published around the world and translated into Russian, Chinese, and several European languages in the late 1990's. It has been used in medical school classrooms in 3 different countries, appears on websites around the world, and has appeared in publications including an Australian grassroots newsletter, Indian homeopathic journals, the Hindustan Times, and American and European magazines. Alan's more recent hardcopy publications include vaccine legal articles published in The Townsend Letter, The American Chiropractor, and the North Carolina Chiropractic Association's HealthTrek Magazine. Finally, Alan is an accomplished professional singer-songwriter on piano and 12-string acoustic guitar, with achievements that include standing ovations at seven international conferences for performances of original music and sales of original music to citizens from countries on six continents. His first music video production, Destiny Freedom! ("For we must be the masters of our destinies!"), has received a strong, positive response from freedom advocates, while a prior music production, Share Your Light, stands as a possible theme song for the vaccine rights movement, ending with the prophetic words, "Share Your Light, let your truth be unfurled; One by one, we are freeing the world..." See to see the video and hear these songs. CONTACT: Alan Phillips, Attorney and Counselor at Law; attorney@vaccinerights.com, , Asheville, NC. 131

132 XIV. FEEDBACK Comments, corrections, questions, proposed revisions, and other constructive feedback are welcome. Due to the potentially high volume of feedback, a personal reply cannot be guaranteed. Send feedback to: Alan Phillips, J.D. attorney@vaccinerights.com BE SURE TO VISIT REGULARLY FOR NEWS AND OTHER VACCINE RIGHTS INFORMATION AND UPDATES! 132

133 abuse and neglect 97, 107, 117 acknowledgements..10 administrative law federal 22 state 45 adoption, foreign.61, 119 Advisory Committee on Immunization Practices (ACIP)..23 Affidavits..47, 62 American Academy of Pediatrics (AAP).24, 93 American Civil Liberties Union (ACLU)..75 attorney, when recommended , 15, 25, 44, 47, 62, 63, 77, 91, author, about..129 Bill of Rights..16 Centers for Disease Control and Prevention (CDC).23, 53, 65, 69, 71, 73, 75, 79, 92 circuit courts..27 Civil Rights Acts (see Federal Civil Rights Act) college students, clinical work...21, 63 INDEX common law..13 constitutions U.S....8, 16-19, 31-38, states courts and legal precedent federal...27 states.. 50 custody disputes delayed vaccine schedules.92 Department of Defense...25 Department of Health and Human Services.. 22, 76 Disclaimer 4 Doctors 42, 87, 92, due process 18, 60 emergencies.13, 49, 71-77, 123 employees 20, 24-26, 63, 111, 120, 125, 130 Equal Employment Opportunity Commission (EEOC)....24, 67 establishment clause..16, 33, 34 exhaustion doctrine.. 27, 55 Federal Civil Rights Act of Federal Civil Rights Act of , 64, 109 federal courts and precedent..27 federal statutes.19 feedback..132 First Amendment...16, 18, 21, 33-37, 60, 83-84, 96, 103, 111 Food and Drug Administration (FDA)..23 Foreword.5 Forms. 8, 47, , 124 Fourteenth Amendment...18, 52 free exercise clause..16, 18, 34, 35, 60, 84, 96 hepatitis B vaccine (OSHA) 26, 65, 109, 120 immigration. 24, 61-62, 104, 119, 127, 130 Index. 133 International Health Regulations (2005)..69, 76 international travel Introduction.7 Isolation 13, 74-76, 123 Jacobson v. Massachusetts 31-33, 53, 72, 73, 79, 124 legal precedent (see precedent) 133

134 medical board.93, 100 medical exemptions...7, 20, 26, 32, 39, 44, 48, 54, 55, 69, 75, 122 military.. 20, 25, 26, 104, 111, 120, 127, 130 Model State Emergency Health Powers Act (MSEHPA) 74 National Institutes of Health (NIH)...23 National Vaccine Information Center (NVIC)..125 neglect and abuse..see abuse and neglect non-substantive law 13 Occupational Health and Safety Administration (OSHA). 26, 65, 109, 119 outbreaks 17, 32, 53, 65, 71-77, 80, 85, 113, 123 Pandemic Response Project 10, 130, 131 past vaccines. 106, 116 philosophical exemptions , 17, 34, 37, 39, 44, 52, 62, 72-74, 80, 82, 95,112, police power, state s...17, 39, 72 precedent, legal 11, 27, 33, 50 private schools and daycares.58 quarantine...3, 70-76, 85, 123, 131 Refusal to Vaccinate Forms 93 religion, legal definition of 30 Religious Freedom Restoration Act.. 21, 26, 44, 67, 75 resources, legal..126 stare decisis..28 statutes federal 19 severable. 40, 52 states..39 substantive law. 13 Title VII, Federal Civil Rights Act of , 24, 25, 63-68, 109, 120 travel, international..68 United States Citizenship and Immigration Services (USCIS)..24, 26, United States Supreme Court...18, 22, 27, 28, 31, 32, 35, 45, 52, 53, 60, 79, 83, 124 vaccination forced 70, 122 past.. 106, 116 partial 119 World Health Organization..70, 76 Don t see what you re looking for? 1) Review the Table of Contents, 2) Review the Bookmarks, or 3) Search the entire document. 134 Thank You for Supporting Vaccine Rights!