Religion's Hepatitis B Shot: the Arkansas General Assembly Established an Overly Broad Religious Exemption to Mandatory Immunization After the District Court Invalidated the Original Religious Exemption-mccarthy v. Ozark School District

• Publication year: 2022

42 Creighton L. Rev. 777. RELIGION'S HEPATITIS B SHOT: THE ARKANSAS GENERAL ASSEMBLY ESTABLISHED AN OVERLY BROAD RELIGIOUS EXEMPTION TO MANDATORY IMMUNIZATION AFTER THE DISTRICT COURT INVALIDATED THE ORIGINAL RELIGIOUS EXEMPTION-MCCARTHY V. OZARK SCHOOL DISTRICT

Creighton Law Review

Vol. 42

I. INTRODUCTION

Immunizations are imperative for society's health and safety.(fn1) It is well settled that individual rights must be subordinated to the compelling state interest of protecting society from the spread of disease.(fn2)Furthermore, the Supreme Court decided that a government entity may adopt compulsory immunization programs to protect the health and safety of the public long ago.(fn3) However, some religious beliefs require that a person abstain from immunizations.(fn4) The Establishment Clause of the Constitution prohibits Congress from making laws that respect an establishment of religion or laws that prohibit the free exercise of religion.(fn5) In attempting to honor the First Amendment rights of individuals with religious objections to immunization, some states allow exemptions from mandatory immunization laws.(fn6) However, legislatures endeavor to limit the number of exemptions given to individuals with religious objections to immunizations so as to prevent an outbreak of disease in an effort to protect public health.(fn7)

In McCarthy v. Ozark School District,(fn8) the United States Court of Appeals for the Eighth Circuit stated that the issues were moot in district court decisions which struck a religious exemption to Arkansas Code Annotated section 6-18-702(a) (hereinafter the "Statute") as unconstitutional under the First Amendment.(fn9) The plaintiffs in the district court decisions originally brought a claim against the Director of the Arkansas Department of Health for disallowing the plaintiffs' children to attend school because they did not qualify for a religious exemption from immunization under the Statute.(fn10) The children did not qualify for the Statute's religious exemption because the Statute required the objectors to belong to a "recognized church or religious denomination."(fn11) The district courts severed the Statute's religious exemption provision, from the remaining provisions of the statute, after determining that it violated the First Amendment.(fn12) Not only did the district courts' rulings prevent the plaintiffs from receiving relief in the form of a religious exemption from the Statute's immunization requirements for their children, but the district courts' rulings also required any individual who previously enjoyed a religious exemption from the Statute's immunization requirement to receive the required immunizations in order to attend school.(fn13) However, the Arkansas General Assembly created a new provision that allowed exemption from the Statute's mandatory immunization requirement based on any religious or philosophical objections before the Eighth Circuit had a chance to review the lower courts' holdings.(fn14)

This Note will first examine the background and effectiveness of immunization laws.(fn15) This Note will then establish that, although the plaintiffs received their relief, the Arkansas General Assembly reacted poorly to the district courts' holdings.(fn16) Specifically, the Arkansas General Assembly reacted poorly to the district courts' holdings because allowing any individual who professes philosophical objections to immunizations to have an exemption from a mandatory immunization statute undermines the overall purpose of the immunization statute and puts society at risk.(fn17) This Note will argue that where a legislature requires the existence of a religious exemption to a mandatory immunization statute, the exemption should be narrow enough so that it does not undermine the overall purpose of the mandatory immunization requirement by allowing too many exemptions; however, a religious exemption to a mandatory immunization statute cannot be so narrow that it violates the Constitution.(fn18)This Note will ultimately establish that the district courts did not apply Arkansas' Separability of Provisions statute correctly because the district courts struck the Statute's entire religious exemption provision instead of striking merely the unconstitutional words in the Statute's provision. Therefore, this Note concludes that the district courts failed to curtail any further problems with the Statute's immunization exemption provision.(fn19)

II. BACKGROUND

In McCarthy v. Ozark School District,(fn20) several Arkansas schools barred or threatened several children with removal from school for not comporting with Arkansas' mandatory immunization requirement as proscribed in Arkansas Code Annotated section 6-18-702(a) (hereinafter the "Statute").(fn21) Specifically, the Arkansas schools barred or threatened six children with removal from school for not receiving their age appropriate Hepatitis B immunizations.(fn22) The Statute required that all school children receive their age appropriate immunizations, including Hepatitis B, in order to be admitted into school.(fn23)The Statute allowed for a religious exemption from immunization; however the Statute's religious exemption exclusively extended to recognized religious denominations or churches.(fn24) The parents and guardians of the six school children refused to have their children immunized in accordance with their respective religious or philosophical beliefs.(fn25) However, in McCarthy v. Boozman,(fn26) the United States District Court for the Western District of Arkansas stated that Dan McCarthy's daughter did not qualify for a religious exemption under the Statute because she did not belong to a recognized religious denomina-tion.(fn27) In McCarthy, the district court stated that the Statute's mandatory immunization requirement was constitutional but invalidated and severed the Statute's religious exemption provision.(fn28)

Soon after the district court's findings in McCarthy, Cynthia Boone and Susan Brock brought two separate actions in the United States District Court for the Eastern District of Arkansas challenging the Statute's religious exemption provision.(fn29) Like Dan McCarthy's daughter, Arkansas schools barred or threatened to remove Cynthia Boone's and Susan Brock's children from attending school because Boone and Brock would not allow their children to be immunized in accordance with the Statute due to their religious beliefs.(fn30)

A. Several United States District Court Cases From the Eastern and Western Districts of Arkansas Led to McCarthy v. Ozark School District

1. McCarthy v. Boozman: The Western District Struck Down the Religious Exemption Provision of Arkansas' Mandatory Immunization Statute Because it Violated the Establishment Clause of the Constitution

In McCarthy v. Boozman,(fn31) the United States District Court for the Western District of Arkansas held that the religious exemption provision of Arkansas' mandatory immunization statute was unconsti-tutional.(fn32) In McCarthy, Dan McCarthy, on behalf of his minor daughter, brought suit against Fay Boozman, the Director the Arkansas Department of Health, when his daughter was removed from school for not having her immunizations.(fn33) The immunizations were required by Arkansas Code Annotated section 6-18-702(a) (hereinafter the "Statute") which denied children admission to school without proof of immunization.(fn34) Though Dan McCarthy objected to the immunization due to religious beliefs, and a religious exemption was available through the Statute, the Arkansas Department of Health ("Department of Health") determined that Dan McCarthy's daughter did not qualify for the Statute's religious exemption.(fn35)

Specifically, the Statute's religious exemption was only available to parents who object "on the grounds that immunization conflicts with the religious tenets and practices of a recognized church or religious denomination of which the parent . . . is an adherent or mem-ber."(fn36) Additionally, the Department of Health reviewed applications for the Statute's religious exemption and decided whether to grant the exemptions.(fn37) When reviewing applications for the Statute's religious exemption, the Department of Health considered the church's address, the church's written constitution, the number of members in the denomination, the times and locations of regular meetings, a written proclamation of beliefs for the denomination, and any legal documents filed with the government.(fn38) Furthermore, the Department of Health's application form declared that philosophical or personal resistance to the Statute's immunization requirement, without detailed doctrinal inconsistency, is not a legitimate basis for an exemption.(fn39)

Ultimately, the Department of Health denied Dan McCarthy's application for a religious exemption from the Statute because Dan McCarthy could not show any official affiliation with a recognized denomination or any information concerning the tenets and practices thereof.(fn40) Dan McCarthy also failed to provide a notarized statement from a church official or any other church affiliation documents.(fn41)Each of the aforementioned deficiencies resulted in the Department of Health denying Dan McCarthy's application for a religious exemption from the Statute.(fn42)

However, the United States District Court for the Western District of Arkansas struck the religious exemption portion of the Statute in M...