Santa Brought Measles: California's 2014 Measles Outbreak and the Constitutionality of Mandates and Religious Exemptions

• Jurisdiction: California,United States
• Author: By Tilman Heyer
• Publication year: 2015
• Citation: Vol. 38 No. 4

Santa Brought Measles: California's 2014 Measles Outbreak and the Constitutionality of Mandates and Religious Exemptions

By Tilman Heyer^*

I. INTRODUCTION

One 2014 holiday season Disneyland parkgoer brought something other than Christmas spirit with them: measles. This outbreak, which ended April 2015, infected 157 individuals, 131 of which were California residents.¹ Vaccination mandates became a prominent issue in political discourse. Public attention focused on anti-vaccination activists, and state lawmakers responded to this public health risk. In response, state Senators Richard Pan and Ben Allen drafted SB 277. After some public debate, Governor Brown signed the bill into law on June 30, 2015.

SB 277 strengthens public school vaccine mandates for many diseases. Prior to SB 277, personal belief exemptions were allowed with physician's signature.² Only a parent signature was required for a religious exemption.³ SB 277 eliminates personal belief and religious exemptions from all existing school vaccine requirements, leaving only the medical exemption.⁴ Some citizens and lawmakers have voiced concern that SB 277 infringes on religious freedom,⁵ and the ACLU has cautioned that other fundamental rights may be infringed.⁶ California now joins Mississippi and West Virginia in eliminating personal belief and religious exemptions, and many other states are considering doing the same.⁷ SB 277 is likely to spawn legal challenges once it is implemented.

Critics of vaccine mandates have no legal grounds for their objection. In fact, religious exemptions to vaccine mandates may themselves be Fourteenth Amendment violations. Practically, religious exemptions offer little substantive difference from personal belief exemptions. Legislatures are extremely limited in how they can ensure that a religious exemption is not being abused by parents using religion as a pretext for other concerns. Lawmakers are left with only policy extremes in their toolkit; either allow all objections, or none.

II. DOES THE LACK OF A RELIGIOUS EXEMPTION VIOLATE RELIGIOUS FREEDOM PROTECTIONS?

Vaccine-mandate jurisprudence is clear. Mandates have been consistently held constitutional for over a century. Mandatory vaccinations are considered a constitutional use of the state's police powers to protect public health.⁸ An individual's religious freedom "does not include liberty to expose the community of the child to . . . ill health or death."⁹This balance of public health and religion has allowed for mandatory vaccination in the public school context as well.¹⁰

The U.S. Supreme Court has upheld vaccine mandates in Jacobson and Prince. In Jacobson, a smallpox vaccine mandate was extended to all adults. Those who did not comply were fined $5, equivalent to $130 today.¹¹ The Court found that the Legislature could decide whether a vaccine was a valid public health measure, and that the state's police powers allowed it to enact this mandate and penalty.

In Prince, the Court further examined the balance between public interest and religious liberty. Here, a parent who was a Jehovah's Witness permitted their child to sell religious literature in violation of a child labor statute.¹² Though the plaintiffs showed proselytizing was prescribed by their religious beliefs, the Court analogized to Jacobson in finding that the state was within its police power to regulate the "crippling effects of child employment" notwithstanding religious liberty claims.¹³ Prince recognized the police powers to vaccinate granted by Jacobson, and heightened then when regulation concerned children's well-being.¹⁴

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School vaccine mandates without religious exemptions have also passed constitutional muster in West Virginia. In Workman, a child was refused enrollment in public schools because she was unvaccinated. The parent claimed her religious convictions forbade vaccination.¹⁵ While the court declined to weigh on whether this was a law of general applicability under Smith,¹⁶ it found that "even assuming strict scrutiny applies . . . [Jacobson and Prince] guide us to conclude that . . . the vaccination law [withstands] such scrutiny."¹⁷

Courts have sent a strong signal that vaccine mandates violate no constitutional freedom. Workman's conclusion that mandates can withstand even strict scrutiny strengthens SB 277's legal position whether facing a religious freedom claim, or a claim that mandates violate the fundamental right to an education under the California state constitution.¹⁸ Though the specific vaccinations required by SB 277 and its analog in Workman may vary, the compelling state interest in guaranteeing public health remains the same. Jacobson and Prince establish a strong foundation that the Legislature can define public health dangers, and exercise its police powers to mitigate them, especially in the context of children's health. Furthermore, Workman shows that unvaccinated children can be denied enrollment even when there is no current disease outbreak without violating the narrow tailoring requirements of strict scrutiny analysis. Strong mandates violate no constitutional provision by not offering a religious exemption to vaccine requirements in public schools.

III. OFFERING A RELIGIOUS EXEMPTION MAY VIOLATE FOURTEENTH AMENDMENT PROTECTIONS

The presence of a religious exemption in vaccine mandates could also impose an unconstitutional burden or benefit on the basis of religion. One case has found that religious exemptions confers the benefits of non-vaccination only to those who hold certain religious beliefs.¹⁹ Others, most notably Professor Dorit Rubinstein Reiss, have attacked the constitutionality of religious exemptions since "children [are] left unprotected . . . because of their parents' beliefs."²⁰

In Brown, the Mississippi Supreme Court struck down a religious exemption to a vaccine mandate. In addition to finding that a mandate withstood strict scrutiny analysis, the court found that a religious exemption violated equal protection. Because children were required to be vaccinated, "and at the same time [exposed] . . . to the hazard of associating in school with [unvaccinated children]" they were denied equal protection.²¹

Brown is weak precedent. No detailed explanation is given why religious exemptions violate the Fourteenth Amendment. Despite being more than 25 years old, no case has echoed Brown's reasoning.²² Moreover, Brown devoted only one paragraph to the Fourteenth Amendment argument.

Professor Reiss's theory that children's rights are violated by religious exemptions is supported by case law regarding alternative medical treatments. The state's interest in a child's well-being has been found to override a parent's spiritual concerns when the two are in conflict,²³ and may also override any subjective beliefs a parent may have had over alternative medical treatments.²⁴

Parents also cannot refuse blood transfusions on behalf of their children. In McCauley, a child with leukemia required a blood transfusion.²⁵ The parents, practicing Jehovah's Witnesses, refused.²⁶ When the hospital nonetheless gave their daughter a blood transfusion, the parents claimed a violation of their parental and religious rights. The child would have faced "certain death" without a transfusion.²⁷ The court found that the child's medical interests and the state's interest outweighed the parents's.²⁸

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In Twitchell, the court held that the state's interest could override what the parent subjectively considered to be in the child's interest. In this case, the parents relied on a spiritual treatment for a child's bowel condition which could have been surgically corrected with "a high success rate."²⁹ The court found that the child's life would have been saved with this...