Calling the Shots: Authorizing Child Welfare Departments to Vaccinate Foster Care Children Despite Parental Objections.

• Author: Mahnke, Alanna Freedman

"[A parent] cannot claim freedom from compulsory vaccination for the child more than for himself on religious grounds. The right to practice religion freely does not include liberty to expose the community or the child to communicable disease or the latter to ill health or death."(1)

"To be sure, the power of the parent, even when linked to a free exercise claim, may be subject to limitation under Prince if it appears that parental decisions will jeopardize the health or safety of the child, or have a potential for significant social burdens." (2)

1. Introduction

   Vaccination is recognized as an indispensable public health tool responsible for eradicating, controlling, and preventing the spread of infectious diseases. (3) Early vaccination efforts in the United States began in Massachusetts with the work of Dr. Benjamin Waterhouse. (4) Waterhouse successfully inoculated his family members--most notably his children--and garnered the attention of men like Thomas Jefferson, who encouraged and directed early vaccination programs. (5) By the mid to late 1800s, various states followed Massachusetts's lead and enacted vaccination legislation to combat smallpox and protect the health of local communities. (6)

   Since its inception, vaccination has prompted discussion and debate in the United States. (7) Despite continued opposition, the Supreme Court has sanctioned states' authority to regulate vaccination. (8) In the seminal case of Jacobson v. Massachusetts, the Court affirmed Massachusetts's smallpox vaccine mandate and held that compulsory vaccination is a reasonable exercise of a state's police power and does not unreasonably infringe on individual liberties. (9) The Court reasoned that police powers authorize a state to enact regulations concerning the health, safety, and morality of its citizens. (10) Jacobson remains the leading authority on vaccination law. (11) Several years later, in Zucht v. King, the Supreme Court explicitly held that it is within a state's authority to impose vaccine mandates for children. (12) In the following decades, courts have continued to uphold the legality of mandatory vaccination. (13)

   Most vaccine legislation targets children, not adults. (14) All fifty states and the District of Columbia have compulsory child vaccination laws that require children be immunized against certain diseases prior to attending public school. (15) Child vaccination legislation balances the state's interests in protecting public health and the welfare of children with parents' fondamental liberty interests in their child. (16)

   Parents possess fundamental rights protected by the Due Process Clause of the Fourteenth Amendment to make decisions concerning the care, custody, and control of their children. (17) The Fourteenth Amendment implicitly authorizes parents to make decisions with respect to their child's education, religious and moral upbringing, and medical care. (18) It is a cardinal rule that the custody and control of children reside with parents first and foremost, and states generally should not infringe nor hinder parents' rights. (19) Although courts and legislatures defer to a parent's decision-making authority, parental rights are not absolute. (20) States may enact regulations pursuant to their parens patriae and police powers that restrict or burden a parent's liberty interest in their child. (21) Police powers and parens patriae powers work in tandem to justify state regulation and intervention when a parent jeopardizes the health and safely of their child and threatens public welfare. (22) Child vaccination laws and the foster care system are two examples of state legislation that impinge on parental rights. (23)

   Child vaccination laws limit a parent's decision-making autonomy by requiring children to be vaccinated in order to attend school. (24) Despite the constitutionality and widespread acceptance of compulsory vaccination to control the spread of disease, many parents oppose vaccines and refuse to immunize their children. (25) Parents object to vaccines for various reasons--they are incompatible with their religious beliefs, represent unwarranted governmental intrusion, and impede on parental decisional autonomy. (26) State vaccine laws include exemptions that allow a parent to exempt their school-aged child from complying with the mandate. (27) States vary by the types of exemptions recognized and the process and conditions imposed to use an exemption. (28) Absent an exemption, failure to comply can result in the school prohibiting the child's attendance, and the parent may face civil fines or criminal penalties for their child's truancy. (29) Still, most parents--willingly or not--immunize their children. (30)

   The foster care system substantially limits the rights of parents who have abused or neglected their children by removing them from their parent. (31) A state agency, usually referred to as the "department," is responsible for receiving, caring for, maintaining, and placing children in need of care and protection. (32) The department is authorized to intervene in the constitutionally protected parent- child relationship if a judge determines that the parent is not providing the child with reasonable care and protection. (33) If the judge makes a preliminary finding that a child is suffering from abuse or neglect, or will suffer from abuse or neglect if the state takes no action, then they are authorized to temporarily transfer the child to the custody of the child welfare department until the court hears the case on the merits. (34) The department's foremost goal is to reunify the parent and child, and the parent's fundamental interest in their child remains intact. (35) Both the parents and department have vested interests in the child, which often conflict over the issue of immunization. (36) Due to statutory variation among states, there is a lack of uniformity as to whether the department can immunize a foster care child over their parent's objections. (37)

   This Note examines the competing interests that arise between parent and state over the issue of immunizing foster care children and how courts address this problem. (38) Section II.A discusses the history and early jurisprudence of vaccination, its success as a public health tool, and modern child vaccination laws. (39) Section II.B then examines a parent's fundamental right to the care and custody of their child and the extent to which a state's police and parens patriae powers justify limiting parental rights. (40) Section II.C considers two types of policy considerations that impact parental rights: child vaccination as a limit on parental autonomy and the foster care system as a more substantial threat to parental integrity. (41) Next, Section II.D addresses the competing interests that emerge between parent and state over the issue of child vaccination, specifically with respect to children temporarily placed in foster care. (42)

   This Note examines how courts resolve parents' objections to their child's immunization and analyzes the disparate results among states due to ambiguous legislation and overreliance on judicial discretion to parse child welfare laws. (43) The Note balances the rights of unfit parents against the child's best interests and considers whether parents should retain decision-making authority over immunization. (44) These issues are considered in light of the COVID-19 pandemic and public policy goals to protect the public's health. (45) In addition, this Note argues that the rights of an unfit parent must cede to the child's--and society's--best interests in being free from disease. (46) This Note proposes that states adopt a bright-line rule vesting child welfare departments with exclusive authority to immunize foster care children, despite parental objections, according to the best interests standard and refers to Massachusetts's law as an example of legislative clarity that other states may look to for guidance. (47) The Note argues that the health and safety of children should be the primary consideration when immunizing foster care children. (48) The Note concludes by asserting that parents who fail to act in accordance with their child's best interests act inconsistently with their fundamental liberties and should not be allowed to assert these rights when disputing the state's decision to vaccinate the child. (49)

2. History

   1. Vaccination Law in the United States

      1. History of Vaccination

         Vaccination in the United States has a rich and controversial history that continues to inspire debate and discussion today. (50) Early vaccination efforts began at the turn of the nineteenth century and centered around the research of Dr. Benjamin Waterhouse of Harvard University. (51) Dr. Waterhouse relied on the findings of Dr. Edward Jenner, creator of the smallpox vaccine, to conduct his own inoculation experiments that he successfully administered to members of his household. (52) Waterhouse's achievement attracted the attention and support of men like Thomas Jefferson, who contributed to the success of the early vaccine movement. (53) In 1809, Massachusetts passed the country's first mandatory vaccination law, and in 1827 Boston became the first city to require all children entering public school to provide proof of immunization. (54) By the mid to late 1800s, many other states followed Massachusetts's lead and enacted their own vaccination laws. (55) The quick and successful adoption of vaccine legislation was largely the result of fortuitous timing--the enactment of school attendance laws coincided with a rise in smallpox cases and increase in number of public schools. (56) State legislatures effectively addressed this public health concern by conditioning school entry on vaccination. (57)

      2. Early Vaccination Jurisprudence

         Despite the efficacy of vaccines in curtailing the spread of smallpox, many individuals viewed vaccine mandates as a threat to their autonomy and opposed the...